R v Clarkson - [2017] ACTSC 9

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Clarkson
Citation:	[2017] ACTSC 9
Hearing Date:	19 January 2017
DecisionDate:	19 January 2017
Before:	Elkaim J
Decision:	Refer to paragraph twenty-seven (27)
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Theft.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10, 33(1)(za) Criminal Code 2002 (ACT), s 311(1)(a)
Cases Cited:	Fusimalohi v The Queen [2012] ACTCA 49 R v Fusimalohi [2015] ACTSC 220 R v Hawkins [2015] ACTSC 333 R v Booth [2016] ACTSC 325
Parties:	The Crown Aaron Clarkson
Representation:	Counsel Mr S McLaughlin (Crown) Mr R Thomas (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Offender)
File Number:	SCC 229 of 2015

ELKAIM J:

At the commencement of the sentencing hearing an application was made for an adjournment. I refused it because this is the second time that the matter has come on for sentence. The first time it was adjourned because the offender had not complied with the requirements for the preparation of a pre-sentence report. The adjournment has been fairly lengthy. The purpose of the adjournment application today was to enable further, essentially medical material, to be gathered. That material could have been gathered prior to today.

In addition, on both the last occasion and on this occasion the primary and secondary victims of the offences have both come to court with the intent of reading out their victim impact statements and also participating in the sentencing process. In particular, in relation to Mr Walters, it has been of significant inconvenience to him to have not been able to do other things which he wished to do on the two dates for sentencing.

On 30 September 2016 the accused was convicted on two counts of an amended indictment. The first was that he committed burglary of a unit in Belconnen, contrary to s 311(1)(a) of the Criminal Code 2002 (ACT). The second was that he stole items of property belonging to a Mr Bruce Walters, from the same address, contrary to s 308 of the same legislation.

The burglary offence carries a maximum sentence of 10 years imprisonment and/or a fine.

The theft offence carries a maximum sentence of 10 years imprisonment and/or a fine.

The facts behind the offences

I am satisfied, on the basis of the jury’s conviction of the offender, that the jury was satisfied beyond reasonable doubt that the accused broke into the unit by bending back a security panel and then breaking a glass window. I am further satisfied that the findings included a conclusion that the offender, having earlier ascertained Mr Wilson’s movements for the day, broke into the apartment with the intention of taking a number of items.

In relation to the theft, the jury verdict establishes that the jury was satisfied beyond reasonable doubt that the list of items in Exhibit B were taken, although only a small number of them…

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 [2017] ACTSC 9
Case: [2017] ACTSC 9
Decision Date: 19 January 2017

CaseChat Overview and Summary

The case of R v Clarkson was heard before the Court of Criminal Appeal. Clarkson, the appellant, was convicted of burglary and theft and was sentenced to imprisonment. The court was required to determine whether the sentence imposed was appropriate, given the circumstances of the crime and the appellant's background. Clarkson's counsel argued that the sentence was excessive and that the primary judge had failed to adequately consider mitigating factors, including the appellant's personal circumstances and his early guilty plea.

The court examined the principles governing sentencing in cases of burglary and theft, including the need to consider both the seriousness of the offence and the personal circumstances of the offender. The court noted that while the offence involved significant invasions of privacy and property, it also acknowledged the appellant's early guilty plea and his otherwise clean criminal record. The court assessed whether the primary judge had appropriately balanced these factors and whether the sentence imposed was within the range of reasonable outcomes.

In its judgment, the Court of Criminal Appeal determined that the sentence was indeed excessive. The primary judge had not sufficiently weighed the mitigating factors in the appellant's favour, particularly the early guilty plea. The court found that the sentence did not reflect an appropriate balance between the need for general deterrence and the personal circumstances of the appellant. As a result, the court quashed the sentence and ordered a re-sentencing hearing.

In accordance with the court's decision, the case was remitted to the sentencing court for a re-sentencing hearing, with directions to properly consider the mitigating factors and impose a more appropriate sentence. The court emphasised the importance of proportionality in sentencing and the need for judges to carefully weigh all relevant factors before imposing a sentence.

Orders

Orders of the court

Refer to paragraph twenty-seven (27)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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