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R v Clarke

R v Clarke

Case [2019] NSWDC 2 16 January 2019

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Clarke [2019] NSWDC 2
Hearing dates: 3 January 2019; 16 January 2019
Date of orders: 16 January 2019
Decision date: 16 January 2019
Jurisdiction: Criminal
Before: Judge ML Williams SC
Decision:
At [66].

Catchwords: SENTENCING – Multiple state offences – Dishonestly obtain financial advantage – guilty plea – objective seriousness – general deterrence – no prospect of repayment – gambling addiction – special circumstances
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act.
Cases Cited: Alkanaan v R [2017] NSWCCA 56
DPP (Cth) v De La Rosa (2010) 205 A Crim R 1
Johnston v R [2017] NSWCCA 53
Kelly v R [2018] NSWCCA 44
Khoo v R (2013) 237 A Crim R 221
Luong v R [2014] NSWCCA 129
Markarian v R (2005) 228 CLR 357
Pearce v The Queen (1998) 194 CLR 610
R v Ellis (1986) 6 NSWLR 603
R v Gentz [1999] NSWCCA 285
R v Grossi (2008) 183 A Crim R 15
R v Hawkins (1989) 45 A Crim R 430
R v Henry (1999) 46 NSWLR 346
R v Hill [2004] NSWCCA 257
R v Lam (2015) NSWCCA 143
R v MAC (2006) 167 A Crim R 159
R v Mears (1991) 53 A Crim R 141
R v Murtaza [2001] NSWCCA 336
R v Pereira [2018] NSWCCA 171
R v Pont (2000) 121 A Crim R 302
R v Stanbouli (2003) 141 A Crim R 531
R v Todorovic (2008) NSWCCA 49
R v Van Ryn [2016] NSWCCA 1
R v Woodman [2001] NSWCCA 310
R v XX [2017] NSWCCA 90
R v Yildiz (2006) 160 A Crim R 218
Siwek v R [2017] NSWCCA 187
SL v R [2015] NSWCCA 30
Stevens v R [2009] NSWCCA 260
Stratford v R [2007] NSWCCA 279
Veen v The Queen (No 2) (1988) 164 CLR 465
Ward v R (2013) NSWCCA 46
Whiley v R [2014] NSWCCA 164
Texts Cited: None
Category: Sentence
Parties:
Regina (Crown)
Brody Jack Clarke (Offender)
Representation:
Mr G Thomas (Counsel for the Offender)
Mr J Rafeeq (DPP)

File Number(s): 2018/65670

Judgment

On one level this case is a sad illustration of the moral delinquency and immorality of the online betting industry in Australia and the pernicious effects it has upon people seduced by its false promises of easy riches, but instead are often led into fraud and other criminal behaviour. Here the offender was placing large bets on sporting events, and treated as a high roller, but the business model of the betting operation meant that if he ever became a winner he would be cut off from betting. In the last few days of his offending he was betting an average of over $3 million per day on football games around the world. For example, he bet $1.2 million on two American football games, $1 million on a New Zealand provincial rugby game, and $1.5 million on a rugby league match between Sydney Roosters and North Queensland…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Clarke

Details

AGLC: R v Clarke [2019] NSWDC 2
Case: [2019] NSWDC 2
Decision Date: 16 January 2019

CaseChat Overview and Summary

The case of R v Clarke involved the appellant, Clarke, and the Crown. Clarke was convicted of multiple instances of obtaining a financial advantage by deception across various jurisdictions in Australia. The primary issue before the court was to determine an appropriate sentence for Clarke, who had pleaded guilty to the charges. The court had to consider the objective seriousness of the offences, the need for general deterrence, the fact that there was no prospect of repayment, Clarke's gambling addiction, and other special circumstances that might inform the sentencing.

The legal issues before the court included the evaluation of the objective seriousness of the offences, which involved significant sums of money obtained through deception. Additionally, the court had to consider the broader societal need for general deterrence, the absence of any prospect of repayment to the victims, and Clarke's personal circumstances, particularly his gambling addiction. The court also had to weigh these factors against any special circumstances that might warrant a more lenient sentence.

In delivering the judgment, the court emphasised the gravity of Clarke's actions, noting the substantial sums involved and the repeated nature of the offences. The court recognised the importance of general deterrence, and acknowledged Clarke's gambling addiction as a significant factor in his offending behaviour. However, the court also considered the lack of prospect for repayment and the potential for rehabilitation. After a thorough analysis of these factors, the court determined that an appropriate sentence would adequately reflect the seriousness of the offences while also considering Clarke's personal circumstances.

The final orders of the court included the imposition of a sentence that balanced the need for punishment and deterrence with the personal and special circumstances of Clarke. The court ordered Clarke to serve a term of imprisonment, with specific considerations given to the objective seriousness of the offences, the necessity for general deterrence, the irrevocability of the losses, and Clarke's gambling addiction. The sentence also reflected the court's assessment of the prospects for rehabilitation and any other relevant special circumstances.

Orders

Orders of the court

At [66].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Clarke [2019] NSWDC 2

Most Recent Citation

McLaren v R [2021] NSWCCA 12

Cases citing this decision · 7 of 7 shown

Fineff v The King
[2024] NSWCCA 102 Para 39

…ch results in a proportion of 59%, is extremely favourable. Indeed, of the thirteen cases said to be more or less comparable, only one ( R v Clarke [2019] NSWDC 2) had a more favourable ratio. And it is tolerably clear from a review of that decision that Mr Clarke, who was sentenced some 16 months after his offen…
R v Chung
[2023] NSWDC 257 Para 149

…of sentences in relation to similar offending subsequently proceeded pursuant to charges brought under s 192E(1)(b) of the Crimes Act . In R v Clarke [2019] NSWDC 2 a solicitor pleaded guilty to six charges under that section involving transfers to his private account from the business bank accounts of one of his…
Kelly v The King
[2023] NSWCCA 104 Para 55

…rt of Criminal Appeal in McLaren v R (2021) 287 A Crim R 542; [2021] NSWCCA 12 (“ McLaren ”) and the decision of the District Court in R v Clarke [2019] NSWDC 2, his Honour referred to the factors identified in Clarke, in cases of fraud such as the present, for the assessment of the objective seriousness of the o…
R v King
[2023] NSWDC 100 Para 84

…which were totally illusory. Again, the amounts involved were much greater than here (if the Commonwealth “risk” offence is excluded). Clarke [2019] NSWDC 2 was a case where a solicitor defrauded $9.7M and received a 6-year sentence and a non-parole period of 3 years, after a 25% discount for his plea, and 15% fo…
Clarke v Commissioner of Corrective Services
[2021] NSWSC 1184 Para 6

…Also before me on the application by way of background is a sentencing judgment: R v Brody Jack Clarke [2019] NSWDC 2, where in January 2019 Judge Williams SC sentenced the applicant for offending which it appears from the detailed sentencing remarks relates to a gambling addiction and associated fraud. That judg…
R v Mark Leo O'Brien; R v Therese O'Brien
[2021] NSWDC 67

…McLaren v R [2021] NSWCCA 12 Nahlous v R [2010] NSWCCA 58; 201 A Crim R 150 R v Burke [2002] NSWCCA 353 R v Clarke [2019] NSWDC 2 R v Cole (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, McClemens J, 10 May 1974) R v David Charles Hawkins (1989) 45 A Crim R 430 R v Dimitri De Angelis [20…
McLaren v R
[2021] NSWCCA 12

…A Crim R 61 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Albert [2019] NSWDC 869 R v Burke [2002] NSWCCA 353 R v Clarke [2019] NSWDC 2 R v Dimitri De Angelis [2013] NSWDC 79 R v Kennedy [2019] NSWDC 359 R v Nykolyn [2012] NSWCCA 219 SHR v R [2014] NSWCCA 94; (2014) 241 A Crim R 544 Siwek v R [20…

View all 7 citing cases →

Cases cited in this decision · 23 of 23 shown

Pereira v R
[2018] NSWCCA 171 Para 50

…It is unnecessary to determine whether this is more or less objectively serious than that considered in R v Pereira [2018] NSWCCA 171. In that matter a senior executive at Coca-Cola Australia defrauded the employer of approximately $3.2 million over an 11 year period. I imposed a sentence of six years with a four-ye…
Kelly v R
[2018] NSWCCA 44 Para 63

…n the full-time residential rehabilitation program between November 2017 and January 2018 which may be regarded as a form of quasi custody: Kelly v R [2018] NSWCCA 44. Although it is not submitted that this should form part of a precise reduction in sentence, it should be taken into account in a meaningful way as p…
Zuffo v R
[2017] NSWCCA 187 Para 57

…a gambling addiction. However his efforts to overcome his gambling addiction are reflective of his favourable prospects of rehabilitation: Siwek v R [2017] NSWCCA 187 at [23]…
R v XX
[2017] NSWCCA 90 Para 54

…Submissions as to pre-trial disclosure within the meaning of section 22A do not assist the offender, as there was no trial and as was said in R v XX [2017] NSWCCA 90 at [39] by Beech Jones J, that section is directed to rewarding assistance provided by an accused person to the court by narrowing the issues and the…
Alkanaan v R
[2017] NSWCCA 56 Para 46

…fering a condition which was undiagnosed and untreated during the offending period: R v Van Ryn [2016] NSWCCA 1, per RA Hulme J; Alkanaan v R [2017] NSWCCA 56 at [109]…
Johnston v R
[2017] NSWCCA 53 Para 3

…e for the crime: R v Mears (1991) 53 A Crim R 141 at [145], R v Hill [2004] NSWCCA 257 at [6]; Khoo v R (2013) 237 A Crim R 221 at [27]; Johnston v R [2017] NSWCCA 53.…
R v Van Ryn
[2016] NSWCCA 1 Para 46

…two psychiatrists to establish that he was suffering a condition which was undiagnosed and untreated during the offending period: R v Van Ryn [2016] NSWCCA 1, per RA Hulme J; Alkanaan v R [2017] NSWCCA 56 at [109]…
Lam v R
[2015] NSWCCA 143 Para 46

…bmission that he does not have the relevant expertise to diagnose the existence of a mental illness or to establish a causative link: R v Lam [2015] NSWCCA 143 at [73], [87]-[90]. I take into account, as Mr Thomas submits, that Mr Borenstein was not cross-examined on his report, and that it should be taken into acco…
SL v R
[2015] NSWCCA 30 Para 26

…e future. To go any further would require trespassing into material dealt with in closed court. I take account of the principles summarised in SL v R [2015] NSWCCA 30 at [39].…
Whiley v The Queen
[2014] NSWCCA 164 Para 1

…the amount of money and whether the loss is irretrievable : R v Todorovic (2008) NSWCCA 49 at [19]; R v Hawkins (1989) 45 A Crim R 430; Whiley v R [2014] NSWCCA 164;…
Luong v R
[2014] NSWCCA 129 Para 2

…the length of time over which the offences are committed: R v Pont (2000) 121 A Crim R 302 at [74]; R v Woodman [2001] NSWCCA 310 at [29]; Luong v R [2014] NSWCCA 129 at [21].…
Ward v R
[2013] NSWCCA 46 Para 62

…The Crown points to Ward v R [2013] NSWCCA 46 where McLellan CJ at CL said that an absence of a criminal record and a first time in custody is unlikely to justify a finding of special circumstances. However in this case, those factors in conjunction with the accumulation implicit in an aggregate sentence and the on…
Stevens v R
[2009] NSWCCA 260 Para 4

…the degree of planning and sophistication: Stevens v R [2009] NSWCCA 260 at [59]; R v Murtaza [2001] NSWCCA 336 at [15]; R v Yildiz (2006) 160 A Crim R 218.…
Stratford v R
[2007] NSWCCA 279 Para 60

…offence. The ultimate sentence must be appropriate to the totality of the offending and the personal circumstances of the offender: Stratford v R [2007] NSWCCA 279 at [29]. It is conceded that an aggregate sentence is appropriate, but the sentence should not be crushing having regard to the objective seriousness of…
SZ v R
[2007] NSWCCA 19 Para 65

…arge after taking into account the various statutory and common law principles and applying such discounts that arise on the particular facts: SZ v R [2007] NSWCCA 19 at [5]. I have done so.…
Markarian v The Queen
[2005] HCA 25 Para 63

…part of the instinctive synthesis of all relevant factors to be taken into account by the court in arriving at an appropriate sentence: Markarian v R (2005) 228 CLR 357. He has been subject to very strict reporting and residential conditions while on bail and has gone to considerable inconvenience to provide assistan…
R v Hill
[2004] NSWCCA 257 Para 3

…the motive for the crime: R v Mears (1991) 53 A Crim R 141 at [145], R v Hill [2004] NSWCCA 257 at [6]; Khoo v R (2013) 237 A Crim R 221 at [27]; Johnston v R [2017] NSWCCA 53.…
R v Murtaza
[2001] NSWCCA 336 Para 4

…the degree of planning and sophistication: Stevens v R [2009] NSWCCA 260 at [59]; R v Murtaza [2001] NSWCCA 336 at [15]; R v Yildiz (2006) 160 A Crim R 218.…
R v Woodman
[2001] NSWCCA 310 Para 2

…the length of time over which the offences are committed: R v Pont (2000) 121 A Crim R 302 at [74]; R v Woodman [2001] NSWCCA 310 at [29]; Luong v R [2014] NSWCCA 129 at [21].…
R v Gentz
[1999] NSWCCA 285 Para 53

…at very feature which enabled him to be in a position of trust which he abused, which makes general deterrence a significant consideration: R v Gentz [1999] NSWCCA 285 at [12]. I reject the submission that he was not fully aware of the consequences of his actions.…
R v Henry
[1999] NSWCA 111 Para 57

…Further, the court had noted in R v Henry (1999) 46 NSWLR 346 that addiction to drugs or gambling is not of itself a mitigating circumstance, and Bathurst CJ said that those comments apply equally to cases of fraud to feed a gambling addiction. However his efforts to overcome his gambling addiction are reflective of h…
Pearce v The Queen
[1998] HCA 57 Para 60

…to a finding of special circumstances. I must fix an appropriate sentence for each offence and then consider matters of accumulation and concurrency: Pearce v The Queen (1998) 194 CLR 610. The application of the totality principle must not result in a “blanket assessment” of each offence. The ultimate sentence must be appro…
Veen v The Queen (No 2)
[1988] HCA 14 Para 5

…denouncing his conduct and recognising the harm done to the victim of the crime and the community. As the High Court said in Veen v The Queen (No 2) (1988) 164 CLR 465,…

Legislation cited in this decision · 1

Crimes Act 1900 (ACT)
1 mention (from Para 6)

Medium Neutral Citation:	R v Clarke [2019] NSWDC 2
Hearing dates:	3 January 2019; 16 January 2019
Date of orders:	16 January 2019
Decision date:	16 January 2019
Jurisdiction:	Criminal
Before:	Judge ML Williams SC
Decision:	At [66].
Catchwords:	SENTENCING – Multiple state offences – Dishonestly obtain financial advantage – guilty plea – objective seriousness – general deterrence – no prospect of repayment – gambling addiction – special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act.
Cases Cited:	Alkanaan v R [2017] NSWCCA 56 DPP (Cth) v De La Rosa (2010) 205 A Crim R 1 Johnston v R [2017] NSWCCA 53 Kelly v R [2018] NSWCCA 44 Khoo v R (2013) 237 A Crim R 221 Luong v R [2014] NSWCCA 129 Markarian v R (2005) 228 CLR 357 Pearce v The Queen (1998) 194 CLR 610 R v Ellis (1986) 6 NSWLR 603 R v Gentz [1999] NSWCCA 285 R v Grossi (2008) 183 A Crim R 15 R v Hawkins (1989) 45 A Crim R 430 R v Henry (1999) 46 NSWLR 346 R v Hill [2004] NSWCCA 257 R v Lam (2015) NSWCCA 143 R v MAC (2006) 167 A Crim R 159 R v Mears (1991) 53 A Crim R 141 R v Murtaza [2001] NSWCCA 336 R v Pereira [2018] NSWCCA 171 R v Pont (2000) 121 A Crim R 302 R v Stanbouli (2003) 141 A Crim R 531 R v Todorovic (2008) NSWCCA 49 R v Van Ryn [2016] NSWCCA 1 R v Woodman [2001] NSWCCA 310 R v XX [2017] NSWCCA 90 R v Yildiz (2006) 160 A Crim R 218 Siwek v R [2017] NSWCCA 187 SL v R [2015] NSWCCA 30 Stevens v R [2009] NSWCCA 260 Stratford v R [2007] NSWCCA 279 Veen v The Queen (No 2) (1988) 164 CLR 465 Ward v R (2013) NSWCCA 46 Whiley v R [2014] NSWCCA 164
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Brody Jack Clarke (Offender)
Representation:	Mr G Thomas (Counsel for the Offender) Mr J Rafeeq (DPP)
File Number(s):	2018/65670