Legal Research
Cases
R v Clarkson

R v Clarkson

Case [2024] NSWDC 283 12 July 2024

Sentencing

Aggravated & Exemplary Damages

Concurrent Sentences

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Clarkson [2024] NSWDC 283
Hearing dates: 3 July 2024
Date of orders: 12 July 2024
Decision date: 12 July 2024
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
I indicate the following sentences, after the 25% discount:
(1)   The Robbery charge – 3 Years, with a non- parole period of 2.25 years.
(2)   The 18 May primary charge – 4 years.
(3)   The 18 May s 166 charge – 9 months.
(4)   I indicate I would have wholly accumulated the 18 May Offences to 4 years with a non-parole period of 3 years.
I impose an aggregate sentence of 5 years to commence on 13 February 2023.
I impose a minimum non-parole period of 2.5 years commencing 13 February 2023 and expiring 12 August 2025.

Catchwords:
SENTENCING — Multiple separate offences — Robbery – Assault – Dishonesty – Accumulation, concurrency and totality – Aggregate sentences — Crushing sentence — Objective seriousness – Offender in custody at time of offending – Does s 56 of the Crimes (Sentencing Procedure) Act 1999 apply – Policy considerations for offence committed in custody – s 25D(4)(a) – refusal of an offer to plead guilty

Legislation Cited:
Crimes Act 1900 (NSW) s 33B(1)(a); s 94(a); s 97(2); s 253E(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) S 3A; s 5; s 21A(3)(c); s 21A(2)(d); s 25D; s 25D(4)(a); s 25D(4)(b); s 56(1)(a); s 56(1)(b); s 56(2); s 56(3)
Crimes (Administration of Sentences) Act 1999 s 3; s 4

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Hraichie v The Queen [2022] NSWCCA 155
Mill v The Queen (1988) 166 CLR 59
Postiglione v The Queen (1997) 189 CLR 295
R v Hemsley [2004] NSWCCA 228
R v Henry [1999] NSWCCA 111
R v Holder [1983] 3 NSWLR 245
R v Jeremiah [2016] NSWCCA 241
R v Jeremiah [2016] NSWCCA 241
R v MAK [2006] NSWCCA 381
R v Wang (No. 1) [2020] NSWSC 1255,
R v Windle [2012] NSWCCA 222
Shaw v The Queen [2008] NSWCCA 58
Stanton v R [2017] NSWCCA 250
Williams v R [2012] NSWCCA 172
ZA v R [2017] NSWCCA 132

Category: Sentence
Parties: Rex
Stuart Clarkson (Offender)
Representation:
Counsel:
T Bicanic (Crown)
D Pace (Defence)
Solicitors:
C Tsalidis, ODPP (Crown)
D Gaudiello, Mayfair Lawyers (Defence)

File Number(s): 2022/341138
2023/165549
Publication restriction: Nil

JUDGMENT

Background

The Offender, who was born on 6 November 1986, is before the Court to be sentenced in respect of a robbery that took place in November 2022 (“the Robbery Offence”), and an assault that he committed whilst he was in custody on remand for the Robbery Offence in May 2023 (“the 18 May Offences”). Whilst in custody for the Robbery offence, the Offender was sentenced to and served six months imprisonment for a dishonesty offence (“the Dishonesty Offence”), which had been committed one week prior to the Robbery.
How the matters come to…

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 Clarkson

Details

AGLC: R v Clarkson [2024] NSWDC 283
Case: [2024] NSWDC 283
Decision Date: 12 July 2024

CaseChat Overview and Summary

The defendant, Clarkson, was sentenced by the Supreme Court of New South Wales following convictions for multiple offences, including robbery, assault, and dishonesty, committed while he was in custody. Clarkson faced a range of charges, and the court was tasked with determining the appropriate sentences, considering the principles of accumulation, concurrency, and totality, and applying the relevant statutory provisions. The court had to decide whether section 56 of the Crimes (Sentencing Procedure) Act 1999 applied to the offence committed while Clarkson was in custody, and whether policy considerations warranted a particular sentence. Additionally, the court needed to address the objective seriousness of the offences and the refusal of Clarkson to accept a plea offer.

The court carefully considered the nature and circumstances of each offence, assessing their objective seriousness and the impact of the concurrent and cumulative nature of the crimes. Clarkson's prior criminal history and the impact of the offences on the victims were also evaluated. The court noted the policy considerations outlined in section 25D(4)(a) of the Act, which emphasise the need to deter individuals in custody from engaging in criminal conduct. Given Clarkson's refusal to accept a plea offer, the court found this factor to be relevant in determining the appropriate sentence.

After considering all the factors, the court determined the sentences for each offence, applying a discount for the plea offer refusal. The court imposed a sentence of three years for the robbery charge, with a non-parole period of 2.25 years. For the offences committed on 18 May, the court imposed sentences of four years and nine months, respectively. The court found that the 18 May offences should be wholly accumulated to four years, with a non-parole period of three years. The aggregate sentence was set at five years, with a non-parole period of 2.5 years. The sentences were to commence on 13 February 2023, with the non-parole period expiring on 12 August 2025.

Orders

Orders of the court

I indicate the following sentences, after the 25% discount:

(1) The Robbery charge – 3 Years, with a non- parole period of 2.25 years.

(2) The 18 May primary charge – 4 years.

(3) The 18 May s 166 charge – 9 months.

(4) I indicate I would have wholly accumulated the 18 May Offences to 4 years with a non-parole period of 3 years.

I impose an aggregate sentence of 5 years to commence on 13 February 2023.

I impose a minimum non-parole period of 2.5 years commencing 13 February 2023 and expiring 12 August 2025.

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 Clarkson [2024] NSWDC 283

Most Recent Citation

Scott v NTA [2005] NTCA 1

Cases citing this decision · 4 of 4 shown

Scott v NTA
[2005] NTCA 1

…y and Another (1999) 198 CLR 511 Reg v H.M. Coroner for Greater London (Southern District), Ex parte Ridley (1985) 1 WLR 1347 Regina v Clarkson (1850) 1 Legge 593 Roberts v State (1951) 50 So.2d 356 Soverina Pty Ltd v NatWest Australia Bank Limited (1993) 40 FCR 452 Stanlack’s case 1 Ventris 181; 86 ER 123 Stasteny v Tacho…
R v Duncan and Perre
[2004] NSWCCA 431

…54 CLR 606 McAuliffe v The Queen (1995) 183 CLR 108 Osland v The Queen (1998) 197 CLR 316 Postiglione v The Queen (1997) 98 A Crim R 134 R v Clarkson (1971) 1 WLR 1402 R v Crowley [2004] NSWCCA 256 R v Esho and Sako [2001] NSWCCA 415 R v Kelly (1993) 30 NSWLR 64 Festa v The Queen (2001) 208 CLR 593 R v C; R v S; R v…
R v Donnelly
[2001] NSWCCA 394

…; M v The Queen (1994) 181 CLR 487; Michelberg v The Queen (1989) 167 CLR 259; Osland v R (1998) 197 CLR 316; R v Ali (2001) NSWCCA 218; R v Clarkson (1971) 1 WLR 1402; R v Coney (1882) 8 QBD 534; R v Dellapatrona (1993) 31 NSWLR 123; R v Heyde (1990) 20 NSWLR 234; R v Kirby (2000) NSWCCA 330; R v Kupferberg (1918)…
Jago v District Court (NSW)
[1989] HCA 46

…3. This Court has not yet decided whether the power to prevent abuses of process extends to a power to prevent unfairness generally (see Barton v. The Queen, at pp 96-97), although lower courts have not found difficulty with such an approach: Herron v. McGregor (1986) 6 NSWLR 246, at pp 250-251; Reg…

View all 4 citing cases →

Cases cited in this decision · 16 of 16 shown

Hraichie v The The Queen
[2022] NSWCCA 155 Para 49

…s from criminal assaults by fellow inmates. As has been explained in many cases such as R v Windle [2012] NSWCCA 222 at [56] and Hraichie v The Queen [2022] NSWCCA 155 (“ Hraichie ”), there is a real need to:…
R v Wang (No 1)
[2020] NSWSC 1255 Para 46

…s captured on CCTV footage which has been placed in evidence and played before me in open court. The Crown, relying on cases such as R v Wang (No. 1) [2020] NSWSC 1255, has submitted that the demeanour, ferocity, and purposefulness of the attack on the victim are not necessarily as visceral as they appear from the a…
R v Holder
[2019] SASCFC 73 Para 97

…Or as Street CJ explained in R v Holder [1983] 3 NSWLR 245 at 260:…
Stanton v R
[2017] NSWCCA 250 Para 99

…lects the total criminality of the Offender’s conduct and would not be disturbed on appeal because the Offender may feel crushed by it: Stanton v R [2017] NSWCCA 250 at [153]; ZA v R [2017] NSWCCA 132 at [76] - [85].…
ZA v R
[2017] NSWCCA 132 Para 99

…Offender’s conduct and would not be disturbed on appeal because the Offender may feel crushed by it: Stanton v R [2017] NSWCCA 250 at [153]; ZA v R [2017] NSWCCA 132 at [76] - [85].…
R v Jeremiah
[2016] NSWCCA 241 Para 115

…The Crown referred me to R v Jeremiah [2016] NSWCCA 241 (“ Jeremiah ”). I was heartened to see that at paragraph [12], it was held by the Court of Criminal Appeal that s 56 of the Sentencing Procedure Act did not apply to the Offender in that case because he “was not a “convicted inmate" at the time of the assault".…
Bugmy v The Queen
[2013] HCA 37 Para 61

…The Offender is entitled, to the full extent available, to leniency because of principles found in cases like Bugmy v The Queen (2013) 249 CLR 571.…
R v Windle
[2012] NSWCCA 222 Para 49

…within the prison system and protect other offenders from criminal assaults by fellow inmates. As has been explained in many cases such as R v Windle [2012] NSWCCA 222 at [56] and Hraichie v The Queen [2022] NSWCCA 155 (“ Hraichie ”), there is a real need to:…
Williams v R
[2012] NSWCCA 172

…NSWSC 1255, R v Windle [2012] NSWCCA 222 Shaw v The Queen [2008] NSWCCA 58 Stanton v R [2017] NSWCCA 250 Williams v R [2012] NSWCCA 172 ZA v R [2017] NSWCCA 132 Category: Sentence Parties: Rex Stuart Clarkson (Offender) Representation: Counsel: T Bicanic (Crown) D Pace (Defence) Solicitors: C Tsalidis, ODPP (Crown)…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 94

…priate vehicle for the full force of general deterrence: R v Hemsley [2004] NSWCCA 228 at [33] and Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177]. That being said, protection of the community remains a significant concern.…
Shaw v R
[2008] NSWCCA 58

…SWCCA 241 R v MAK [2006] NSWCCA 381 R v Wang (No. 1) [2020] NSWSC 1255, R v Windle [2012] NSWCCA 222 Shaw v The Queen [2008] NSWCCA 58 Stanton v R [2017] NSWCCA 250 Williams v R [2012] NSWCCA 172 ZA v R [2017] NSWCCA 132 Category: Sentence Parties: Rex Stuart Clarkson (Offender) Representation: Counsel: T Bicanic (…
R v MAK
[2006] NSWCCA 381 Para 98

…g concept of “proportionality” are all, if not wrapped up in the overall concept of totality, at least not unrelated to that concept: R v MAK [2006] NSWCCA 381 (“ MAK ”) at [17].…
R v Hemsley
[2004] NSWCCA 228 Para 94

…ecause of his subjective circumstances, the Offender does not present as an appropriate vehicle for the full force of general deterrence: R v Hemsley [2004] NSWCCA 228 at [33] and Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177]. That being said, protection of the community remains a sig…
R v Henry
[1999] NSWCCA 111 Para 34

…On behalf of the Offender, like the Crown, reference was made to the indicia identified in R v Henry [1999] NSWCCA 111 (“ Henry ”), emphasis is placed on the following propositions:…
Postiglione v the Queen
[1997] HCA 26 Para 100

…Fundamentally and at the heart of the sentencing process is the principle of proportionality, as explained by McHugh J in Postiglione v The Queen (1997) 189 CLR 295 at 308:…
Mill v The Queen
[1988] HCA 70 Para 96

…not to be an aggregate sentence the total of consecutive sentences, that total must be “just and appropriate". As was explained in Mill v The Queen (1988) 166 CLR 59 at 63:…

Legislation cited in this decision · 7

Crimes (Administration of Sentences) Act 1999 (NSW)
3 2 mentions (from Para 106)
Crimes Act 1900 (ACT)
33B(1)(a) 2 mentions (from Para 4)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (High Risk Offenders) Act 2006 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 19)
Defence Force Discipline Act 1982 (Cth)
1 mention
Terrorism (High Risk Offenders) Act 2017 (NSW)
1 mention

Medium Neutral Citation:	R v Clarkson [2024] NSWDC 283
Hearing dates:	3 July 2024
Date of orders:	12 July 2024
Decision date:	12 July 2024
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	I indicate the following sentences, after the 25% discount: (1) The Robbery charge – 3 Years, with a non- parole period of 2.25 years. (2) The 18 May primary charge – 4 years. (3) The 18 May s 166 charge – 9 months. (4) I indicate I would have wholly accumulated the 18 May Offences to 4 years with a non-parole period of 3 years. I impose an aggregate sentence of 5 years to commence on 13 February 2023. I impose a minimum non-parole period of 2.5 years commencing 13 February 2023 and expiring 12 August 2025.
Catchwords:	SENTENCING — Multiple separate offences — Robbery – Assault – Dishonesty – Accumulation, concurrency and totality – Aggregate sentences — Crushing sentence — Objective seriousness – Offender in custody at time of offending – Does s 56 of the Crimes (Sentencing Procedure) Act 1999 apply – Policy considerations for offence committed in custody – s 25D(4)(a) – refusal of an offer to plead guilty
Legislation Cited:	Crimes Act 1900 (NSW) s 33B(1)(a); s 94(a); s 97(2); s 253E(1) Crimes (Sentencing Procedure) Act 1999 (NSW) S 3A; s 5; s 21A(3)(c); s 21A(2)(d); s 25D; s 25D(4)(a); s 25D(4)(b); s 56(1)(a); s 56(1)(b); s 56(2); s 56(3) Crimes (Administration of Sentences) Act 1999 s 3; s 4
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Hraichie v The Queen [2022] NSWCCA 155 Mill v The Queen (1988) 166 CLR 59 Postiglione v The Queen (1997) 189 CLR 295 R v Hemsley [2004] NSWCCA 228 R v Henry [1999] NSWCCA 111 R v Holder [1983] 3 NSWLR 245 R v Jeremiah [2016] NSWCCA 241 R v Jeremiah [2016] NSWCCA 241 R v MAK [2006] NSWCCA 381 R v Wang (No. 1) [2020] NSWSC 1255, R v Windle [2012] NSWCCA 222 Shaw v The Queen [2008] NSWCCA 58 Stanton v R [2017] NSWCCA 250 Williams v R [2012] NSWCCA 172 ZA v R [2017] NSWCCA 132
Category:	Sentence
Parties:	Rex Stuart Clarkson (Offender)
Representation:	Counsel: T Bicanic (Crown) D Pace (Defence) Solicitors: C Tsalidis, ODPP (Crown) D Gaudiello, Mayfair Lawyers (Defence)
File Number(s):	2022/341138 2023/165549
Publication restriction:	Nil