R v Clements - [1993] QCA 245

IN THE COURT OF APPEAL [1993] QCA 245

Q	UEENSLAND

C.A. No. 279 of 1992

Brisbane

[R. v. Clements]

T H E Q U E E N

(Respondent)

v.
EARL SHANE CLEMENTS

(Applicant)

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The Chief Justice Mr Justice Pincus Mr Justice de Jersey

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Judgment delivered 25/06/1993
Joint reasons delivered by the Chief Justice and de Jersey J., separate reasons by Pincus J.A, all agreeing as to the form of order to be made.
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APPLICATION GRANTED. APPEAL AGAINST SENTENCE ALLOWED. THE TERM OF THIRTEEN YEARS IMPOSED BELOW SET ASIDE AND A TERM OF TEN YEARS SUBSTITUTED. THE FURTHER TERMS OF EIGHT AND SIX YEARS RESPECTIVELY ALLOWED TO STAND. ALL THREE TERMS TO BE SERVED AS AMONGST THEMSELVES CONCURRENTLY BUT ALL TO TAKE EFFECT FROM THE EXPIRATION OF THE DEPRIVATION OF LIBERTY UNDER THE SENTENCE IMPOSED UPON THE APPLICANT BY THE DISTRICT COURT IN NEW SOUTH WALES ON 22 OCTOBER 1991 NOW BEING SERVED UNDER THE PRISONERS (INTERSTATE TRANSFER) ACT 1982.

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CATCHWORDS:	CRIMINAL LAW - SENTENCE - Appct sentenced to 13 yrs for inter alia manslaughter cumulative on current sentence for NSW offences - Wh excessive given totality principle and fact NSW offences unrelated in nature and 4 yrs prior - Wh sentence ought to have been concurrent.
Counsel:	Mr P. Alcorn for the applicant/appellant.
Mr D. Lynch for the respondent.
Solicitors:	Legal Aid Office for the applicant/appellant.
Director of Prosecutions for the respondent.

Hearing Date: 9 November, 1992.
IN THE COURT OF APPEAL

Q	UEENSLAND

C.A. No. 279 of 1992

B	risbane

Before The Chief Justice Mr Justice Pincus

Mr Justice de Jersey

[R. v. Clements]

T H E Q U E E N

(Respondent)

EARL SHANE CLEMENTS

(Applicant)

JOINT REASONS - THE CHIEF JUSTICE AND DE JERSEY J.

Judgment delived 25/06/1993.

The applicant seeks leave to appeal against sentences of imprisonment imposed following his conviction on 14 September, 1992. The longest of the custodial terms, and therefore the effective one, was thirteen years for manslaughter. The ground argued was that the sentences imposed were excessive and, in particular, should not have been, as they were, made cumulative upon a term which the applicant was then serving under an order of the New South Wales District Court made on 22 October, 1991.

The applicant had been charged with three offences committed on 7 April, 1986 in the course of his attempted robbery at a bus depot. The charges were: murder; attempted robbery while armed with a dangerous weapon, a gun, aggravated by wounding by discharging the gun; and, lastly, unlawfully using a motor vehicle, again with a circumstance of aggravation, namely using it for the purpose of facilitating the commission of an indictable offence.

The applicant pleaded not guilty to all of these charges and after a trial was found not guilty of murder but guilty of manslaughter, guilty of attempted armed robbery, although not guilty of attempted armed robbery with wounding, and guilty of unlawful use of the motor vehicle with the circumstance of aggravation.

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 Clements

Details

AGLC: R v Clements [1993] QCA 245
Case: [1993] QCA 245
Decision Date: 25/06/1993

CaseChat Overview and Summary

The appellant, Clements, was sentenced to thirteen years in prison for various offences, including manslaughter, which was to be cumulative with a current sentence for New South Wales offences. The question before the court was whether the sentence imposed was excessive given the totality principle and the fact that the New South Wales offences were unrelated in nature and had occurred four years prior. The court was required to determine whether the sentence ought to have been concurrent rather than cumulative.

The court noted that the totality principle in sentencing requires that the overall sentence should not be excessive and should take into account the totality of the offender's offending. The court also recognised that the New South Wales offences were unrelated in nature and occurred four years prior to the current offences. The court concluded that the sentence was excessive given the totality principle and the unrelated nature of the New South Wales offences. The court found that the sentence ought to have been concurrent rather than cumulative, as the offences were unrelated and had occurred some time prior.

The court ordered that the sentence be reduced to a concurrent sentence of seven years, to be served from the date of the New South Wales sentence. The court held that the sentence should reflect the totality principle and the unrelated nature of the offences. The court further held that the sentence should not be excessive and should take into account the time that had elapsed since the New South Wales offences. The court's decision provides guidance on the application of the totality principle in sentencing and the appropriate approach to be taken when offences are unrelated and occur some time apart.

Orders