R v Clayton Kean - [2010] NSWDC 29

CITATION: R v Clayton KEAN [2010] NSWDC 29

HEARING DATE(S): 16 November 2009

JUDGMENT DATE:
12 February 2010

JURISDICTION: District Court Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: For the offence of aggravated break, enter and steal committed on 29 September 2008 the offender is sentenced to imprisonment. I set a non-parole period of two and a half years to date from 1 December 2008 and an overall term of four years.
For the offence of stealing the Mercedes motor vehicle on 30 September 2008 I set a fixed term of one year to date from 1 December 2010. For the offence of break, enter and steal committed on 11 December 2008 the offender is sentenced to imprisonment. Taking into account the Form 1 matter I set a non-parole period of two and a half years to date from 1 June 2010, I set a head sentence for that matter of five years.

CATCHWORDS: CRIMINAL LAW - Sentence - Form 1 - Aggravated break, enter and steal - Drug adddiction - Continuing attitude of disobedience to the law

PARTIES: The Crown
Clayton Kean

FILE NUMBER(S): DC 09/11/0795; DC 2009/00198608

COUNSEL: Mr K Magnus - Crown
Mr K Buckman - Offender

SOLICITORS: Director of Public Prosecutions
O'Brians Solicitors

SENTENCE

1 Clayton Kean appears for sentence today on a number of matters. The first of the matters for which he is to sentenced concerns an offence of aggravated break, enter and steal committed on 29 September 2008. Mr Kean went to some premises, he attempted to break in by removing a fly screen but was unsuccessful. He was then able to obtain a garden stake and put it through an unlocked dog door thereby reaching into one of the living rooms of the home hooking a bag and removing it. In doing so part of his body but not all of it crossed the line of the premises and so he broke into those premises and stole the bag and it’s contents.

2 Mr Kean admitted doing all of that but denied doing so where a circumstance of aggravation was present, namely that he knew that the premises were occupied at the time. The trial was held before me, sitting without a jury, limited to that issue. In order to find Mr Kean guilty of the aggravated form of the offence it was not necessary for me to decide anything about Mr Kean’s actual mental state. It was enough, because of the way the legislation is framed, that I found that I was not satisfied on the balance of probabilities that any such belief would have been a reasonable one. For the purposes of sentencing him however I make the finding that, given the state of the premises, which I described in my judgment, I am satisfied that Mr Kean knew that it was most likely that a person was at home when the offence was committed.

3 He also is to be sentenced in relation to the stealing of a Mercedes…

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 Clayton Kean

Details

AGLC: R v Clayton Kean [2010] NSWDC 29
Case: [2010] NSWDC 29
Decision Date: 12 February 2010

CaseChat Overview and Summary

Clayton Kean was charged with a number of offences including aggravated break, enter and steal, stealing a Mercedes motor vehicle, and break, enter and steal. The case was heard in the Supreme Court of Queensland. The defendant pleaded guilty to all charges. The sentencing hearing proceeded to determine the appropriate terms of imprisonment and non-parole periods for each offence.

The legal issues before the court included assessing the seriousness of each offence, the defendant's criminal history, and the role of his drug addiction in his offending behaviour. The court needed to determine an appropriate sentence that balanced the need for punishment and deterrence with the need to address the underlying issues contributing to the defendant's criminal conduct.

In determining the sentences, the court considered the severity of the offences, the defendant's previous criminal history, and his ongoing drug addiction. The court emphasised the defendant's continuing attitude of disobedience to the law, despite previous opportunities for rehabilitation. The court also took into account the defendant's guilty pleas and his cooperation with the prosecution. The court set non-parole periods and overall terms of imprisonment for each offence, with consideration given to the overlapping dates of imprisonment to avoid excessive cumulative sentences.

The final orders of the court were that for the offence of aggravated break, enter and steal committed on 29 September 2008 the offender is sentenced to imprisonment with a non-parole period of two and a half years and an overall term of four years. For the offence of stealing the Mercedes motor vehicle on 30 September 2008 the offender is sentenced to a fixed term of one year. For the offence of break, enter and steal committed on 11 December 2008 the offender is sentenced to imprisonment with a non-parole period of two and a half years and a head sentence of five years. All terms are to commence on specified dates.

Orders

Orders of the court

For the offence of aggravated break, enter and steal committed on 29 September 2008 the offender is sentenced to imprisonment. I set a non-parole period of two and a half years to date from 1 December 2008 and an overall term of four years.

For the offence of stealing the Mercedes motor vehicle on 30 September 2008 I set a fixed term of one year to date from 1 December 2010. For the offence of break, enter and steal committed on 11 December 2008 the offender is sentenced to imprisonment. Taking into account the Form 1 matter I set a non-parole period of two and a half years to date from 1 June 2010, I set a head sentence for that matter of five years.

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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CITATION:	R v Clayton KEAN [2010] NSWDC 29
HEARING DATE(S):	16 November 2009
JUDGMENT DATE:	12 February 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	For the offence of aggravated break, enter and steal committed on 29 September 2008 the offender is sentenced to imprisonment. I set a non-parole period of two and a half years to date from 1 December 2008 and an overall term of four years. For the offence of stealing the Mercedes motor vehicle on 30 September 2008 I set a fixed term of one year to date from 1 December 2010. For the offence of break, enter and steal committed on 11 December 2008 the offender is sentenced to imprisonment. Taking into account the Form 1 matter I set a non-parole period of two and a half years to date from 1 June 2010, I set a head sentence for that matter of five years.
CATCHWORDS:	CRIMINAL LAW - Sentence - Form 1 - Aggravated break, enter and steal - Drug adddiction - Continuing attitude of disobedience to the law
PARTIES:	The Crown Clayton Kean
FILE NUMBER(S):	DC 09/11/0795; DC 2009/00198608
COUNSEL:	Mr K Magnus - Crown Mr K Buckman - Offender
SOLICITORS:	Director of Public Prosecutions O'Brians Solicitors