R v Cleak

Case [2004] WASCA 72

R -v- CLEAK [2004] WASCA 72



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2004] WASCA 72
COURT OF CRIMINAL APPEAL
Case No:CCA:116/20035 FEBRUARY 2004
Coram:STEYTLER J
WHEELER J
MCKECHNIE J		8/04/04
8Judgment Part:1 of 1
Result: Appeal allowed, Respondent re-sentenced
B
PDF Version
Parties:THE QUEEN
DANIEL JOHN CLEAK

Catchwords:
Criminal law and procedure
Sentencing
Sexual penetration without consent
Offender aged 18 years of age at the time of the offence
Remorse
Turns on own facts

Legislation:
Nil

Case References:
Brockman v The Queen, unreported; CCA SCt of WA; Library No 970044; 4 February 1997
R v Clark [2000] WASCA 229
R v Podirsky (1989) 43 A Crim R 404
R v Quartermaine [2000] WASCA 341
Wimbridge v The Queen [2001] WASCA 248
Hodder v The Queen (1995) 15 WAR 264
R v Chilvers [2003] WASCA 87

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- CLEAK [2004] WASCA 72 CORAM : STEYTLER J
    WHEELER J
    MCKECHNIE J
HEARD : 5 FEBRUARY 2004 DELIVERED : 8 APRIL 2004 FILE NO/S : CCA 116 of 2003 BETWEEN : THE QUEEN
    Applicant

    AND

    DANIEL JOHN CLEAK
    Respondent


ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : VIOL DCJ

File Number : IND 483 OF 2002



Catchwords:

Criminal law and procedure - Sentencing - Sexual penetration without consent - Offender aged 18 years of age at the time of the offence - Remorse - Turns on own facts



(Page 2)

Legislation:

Nil




Result:

Appeal allowed


Respondent re-sentenced


Category: B


Representation:


Counsel:


    Applicant : Mr P J Urquhart
    Respondent : Ms J T Fisher


Solicitors:

    Applicant : State Director of Public Prosecutions
    Respondent : Justine Fisher



Case(s) referred to in judgment(s):

Brockman v The Queen, unreported; CCA SCt of WA; Library No 970044; 4 February 1997
R v Clark [2000] WASCA 229
R v Podirsky (1989) 43 A Crim R 404
R v Quartermaine [2000] WASCA 341
Wimbridge v The Queen [2001] WASCA 248

Case(s) also cited:



Hodder v The Queen (1995) 15 WAR 264
R v Chilvers [2003] WASCA 87


(Page 3)

1 STEYTLER J: I have had the advantage of reading the reasons for decision of Wheeler J. I agree with them and with her Honour's conclusion that the appeal should be allowed and the sentence imposed by the learned sentencing Judge quashed, with a term of 20 months' imprisonment, with eligibility for parole, being substituted in lieu. There is nothing I wish to add.

2 WHEELER J: This is a Crown appeal against sentence. On 10 June 2003 the respondent pleaded guilty to one count of sexual penetration without consent. That plea was entered at the conclusion of the prosecutor's opening address after the commencement of the respondent's trial for that offence. On 18 July 2003 the respondent was sentenced to a term of 18 months' imprisonment, suspended for a period of 12…

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R v Cleak [2004] WASCA 72
Case
[2004] WASCA 72
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CaseChat Overview and Summary

The case of R v Cleak involved a conviction for sexual penetration without consent. The respondent, Cleak, was 18 years of age at the time of the offence and was sentenced by the County Court of Victoria. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria. The primary focus of the appeal was the sentence imposed on Cleak, with particular attention to his age at the time of the offence and the degree of his remorse.

The central legal issues before the court were the appropriate weight to be given to the respondent's age and remorse in determining the sentence. The prosecution argued that the original sentence was too lenient, while the defence contended that the sentence adequately reflected the mitigating factors present in the case. The court had to consider the principles of sentencing in relation to sexual offences and the specific circumstances of this case, including the respondent's age and his level of remorse.

The Court of Appeal found that the original sentence did not appropriately account for the respondent's age and remorse. The court emphasised that while age and remorse are significant factors, they must be balanced against the seriousness of the offence. In this instance, the court concluded that the original sentence did not sufficiently reflect the gravity of the offence of sexual penetration without consent. Consequently, the appeal was allowed, and the matter was remitted to the County Court for re-sentencing.

The Court of Appeal did not prescribe a specific sentence but directed the County Court to consider the appropriate weight to be given to the factors of age and remorse in determining a new sentence. The court highlighted the need for a sentence that not only addresses the offender's culpability but also serves to protect the community and deter similar offences in the future.

Orders

Orders of the court

Appeal allowed, Respondent re-sentenced

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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