Medium Neutral Citation: Regina v Lee Clark [2016] NSWDC 174
Hearing dates: 11 August 2016
Date of orders: 19 August 2016
Decision date: 19 August 2016
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1. In relation to Count 1 the section 400.4(1) offence the offender is sentenced to imprisonment for 2 years. I decline to make a recognizance release order because the offender will be serving a sentence for the State offences being Counts 2 to 5 I will impose.
2. In relation to Count 2 the section 25(2) offence relating to the cocaine the offender is sentenced to imprisonment for 4 years with a non-parole period of 2 years and 8 months to date from 26 March 2015.
3. In relation to Count 3 the section 25(2) offence relating to the MDMA the offender is sentenced to imprisonment for 4 years with a non-parole period of 2 years and 8 months to date from 26 September 2015.
4. In relation to Count 5 the section 25A offence the offender is sentenced to imprisonment for 3 years with a non-parole period of 2 years to date from 26 September 2016.
5. In relation to Count 4 the section 25(2) offence relating to the steroids the offender is sentenced to imprisonment for 4 years and 6 months with a non-parole period of 1 years and 6 months to date from 26 September 2017.
6. The overall effective sentence I have imposed is one of 8 years imprisonment with a non-parole period of 5 years to date from 26 March 2014. The offender will be eligible to be released on parole on 25 March 2019.

Catchwords: CRIMINAL LAW – proceeds of crime – drugs – possession – supply – ongoing supply – cocaine – ecstasy – steroids – anabolic compounds – human growth hormone – commercial quantity – significant quantity
SENTENCE – plea of guilty – offer of assistance to authorities – aggravating factors – mitigating factors – first time in custody – remorse – contrition – community support – prospects of rehabilitation – specific deterrence – general deterrence – totality principles
Legislation Cited: Crimes Act 1914 (Commonwealth) ss.16A, 16A(1), 16A(2), 16A(2)(f), 16A(2)(j), 16A(2)(k), 16A(2)(m), 16A(2)(n), 17A(1)
Criminal Code Act 1995 (Commonwealth) s400.4(1)
Drugs (Misuse and Trafficking) Act 1985 (NSW) ss. 25(2), 25A
Crimes (Sentencing Procedure) Act 1999 ss. 3, 3A, 5, 21A, 21A(2)(m), 21A(2)(n), 21A(2)(o), 21A(3)(f), 21A(3)(g), 21A(3)(h), 21A(3)(i), 21A(3)(k),
Cases Cited: Veen v R (No 2) (1988) 164 CLR 465
R v McNaughton (2006) 66 NSWLR 566
Baumer v R (1988) 166 CLR 51
BW v R [2011] NSWCCA 176
R v Wilkinson (No 5) [2009] NSWSC 432
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Borkowski (2009) 195 A Crim R 1
Hili v The Queen (2010) 242 CLR 520
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Palijan v R [2010] NSWCCA 142
R v Scognamiglio (1991) 56 A Crim R 81
R v Wright (1997)…

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 Regina v Lee Clark

Details

AGLC: Regina v Lee Clark [2016] NSWDC 174
Case: [2016] NSWDC 174
Decision Date: 19 August 2016

CaseChat Overview and Summary

The case of Regina v Lee Clark involved the defendant, Lee Clark, who faced multiple charges related to the possession, supply, and ongoing supply of drugs, including cocaine, ecstasy, steroids, and anabolic compounds. Clark pleaded guilty to all charges, which were heard in the Supreme Court of New South Wales. The court was tasked with determining the appropriate sentence for Clark, taking into account both aggravating and mitigating factors.

The primary legal issues before the court were the determination of an appropriate sentence that balanced the principles of punishment, deterrence, and rehabilitation, while also considering the totality of Clark's offending. Aggravating factors included the commercial quantity of drugs involved and Clark's prior involvement in the drug trade. Mitigating factors included Clark's offer of assistance to the authorities, his first time in custody, his expression of remorse and contrition, the support he had from his community, and his prospects of rehabilitation. The court also considered the principles of specific and general deterrence, as well as the need to uphold the law and protect the community.

In assessing the totality of the circumstances, the court noted that while Clark's involvement in drug trafficking was significant, his offer of assistance to the authorities, coupled with his expressions of remorse and the support from his community, were substantial mitigating factors. The court emphasised the importance of rehabilitation and the potential for Clark to lead a law-abiding life post-release. The court imposed a sentence that reflected both the seriousness of the offences and the mitigating circumstances, ultimately determining that an effective sentence of 8 years imprisonment with a non-parole period of 5 years was appropriate. This sentence provided a balance between punishment, deterrence, and the potential for rehabilitation.

The court's final orders included specific sentences for each count, with the overall effective sentence being 8 years imprisonment with a non-parole period of 5 years. Clark would be eligible for release on parole on 25 March 2019.

Orders

Orders of the court

1. In relation to Count 1 the section 400.4(1) offence the offender is sentenced to imprisonment for 2 years. I decline to make a recognizance release order because the offender will be serving a sentence for the State offences being Counts 2 to 5 I will impose.

2. In relation to Count 2 the section 25(2) offence relating to the cocaine the offender is sentenced to imprisonment for 4 years with a non-parole period of 2 years and 8 months to date from 26 March 2015.

3. In relation to Count 3 the section 25(2) offence relating to the MDMA the offender is sentenced to imprisonment for 4 years with a non-parole period of 2 years and 8 months to date from 26 September 2015.

4. In relation to Count 5 the section 25A offence the offender is sentenced to imprisonment for 3 years with a non-parole period of 2 years to date from 26 September 2016.

5. In relation to Count 4 the section 25(2) offence relating to the steroids the offender is sentenced to imprisonment for 4 years and 6 months with a non-parole period of 1 years and 6 months to date from 26 September 2017.

6. The overall effective sentence I have imposed is one of 8 years imprisonment with a non-parole period of 5 years to date from 26 March 2014. The offender will be eligible to be released on parole on 25 March 2019.

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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Citations

AGLC Citation

Regina v Lee Clark [2016] NSWDC 174

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 17 of 17 shown

R v Ly
[2014] NSWCCA 78 Para 65

…the section 400.4(1) offence is determined by the amount of money involved, the mental element proved for the offence and the maximum penalty: R v Ly [2014] NSWCCA 78 at [86]. In the present case the amount of money was in excess of $100,000 but not significantly so. The offender knew that the money was the proceed…
Lee v R
[2012] NSWCCA 123 Para 83

…ry may reveal whether the plea was a recognition of the inevitable or truly motivated by willingness to facilitate the course of justice: Lee v R [2012] NSWCCA 123 at [58]. As part of facilitating the course of justice the court can also take into account the fact that the guilty plea has saved a witness or witnesse…
Muldrock v The Queen
[2011] HCA 39 Para 70

…n cases where the offender suffers from mental condition because such an offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. The authorities do not mandate an entire disregard of general or specific deterrence by the sentencing judge: The extent of the reducti…
BW v R
[2011] NSWCCA 176

…v R (No 2) (1988) 164 CLR 465 R v McNaughton (2006) 66 NSWLR 566 Baumer v R (1988) 166 CLR 51 BW v R [2011] NSWCCA 176 R v Wilkinson (No 5) [2009] NSWSC 432 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Hili v The Queen (2010) 242 CLR 520 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Pali…
Hili v The Queen
[2010] HCA 45

…SC 432 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Hili v The Queen (2010) 242 CLR 520 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Palijan v R [2010] NSWCCA 142 R v Scognamiglio (1991) 56 A Crim R 81 R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91 Wong v the Queen (20…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 73

…deterrence, retribution and denunciation should be afforded less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53] and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].…
Palijan v R
[2010] NSWCCA 142 Para 70

…isregard of general or specific deterrence by the sentencing judge: The extent of the reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91.…
R v Wilkinson (No. 5)
[2009] NSWSC 432

…ughton (2006) 66 NSWLR 566 Baumer v R (1988) 166 CLR 51 BW v R [2011] NSWCCA 176 R v Wilkinson (No 5) [2009] NSWSC 432 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Hili v The Queen (2010) 242 CLR 520 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Palijan v R [2010] NSWCCA 142 R v Scognami…
Danial v R
[2008] NSWCCA 15 Para 83

…ess of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]–[28]. That enquiry may reveal whether the plea was a recognition of the inevitable or truly motivated by willingness to facilitate the course o…
Markarian v The Queen
[2005] HCA 25 Para 83

…unt for the offender’s plea of guilty in relation to a Commonwealth offence but to do so is not an error: Lee at [58] and Markarian v The Queen (2005) 228 CLR 357 at [24]. I am satisfied that the offender’s plea of guilty represented a willingness to facilitate the course of justice and that the appropriate discount…
R v Lawrence
[2005] NSWCCA 91 Para 70

…stances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91.…
Putland v The Queen
[2004] HCA 8 Para 63

…general deterrence which has been said to be “a matter so obviously relevant sentencing” that it must be taken into account, Putland v The Queen (2004) 218 CLR 174 at [12], R v Paull (1990) 20 NSWLR 427 at 434 and DPP (Cth) v El Karhani (1990) 21 NSWLR 370 at 378.…
Cameron v the Queen
[2002] HCA 6 Para 83

…t must consider the offender’s willingness to facilitate course of justice and not the utilitarian value of the plea of guilty: Cameron v The Queen (2002) 209 CLR 339 at [14]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a rele…
Wong v The Queen
[2001] HCA 64 Para 62

…of the offence: section 16A(1). However, section 16A(1) does not stand alone and should be read in conjunction with section 16A(2), Wong v The Queen (2001) 207 CLR 584 at [71] per Gaudron, Gummow and Hayne JJ.…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 84

…here in the range particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount in this case is 25%.…
Baumer v R
[1988] HCA 67

…(3)(k), Cases Cited: Veen v R (No 2) (1988) 164 CLR 465 R v McNaughton (2006) 66 NSWLR 566 Baumer v R (1988) 166 CLR 51 BW v R [2011] NSWCCA 176 R v Wilkinson (No 5) [2009] NSWSC 432 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Hili v The Queen (2010) 242 CLR 520 DPP (Cth) v De La Ro…
Veen v The Queen (No 2)
[1988] HCA 14

…2)(n), 21A(2)(o), 21A(3)(f), 21A(3)(g), 21A(3)(h), 21A(3)(i), 21A(3)(k), Cases Cited: Veen v R (No 2) (1988) 164 CLR 465 R v McNaughton (2006) 66 NSWLR 566 Baumer v R (1988) 166 CLR 51 BW v R [2011] NSWCCA 176 R v Wilkinson (No 5) [2009] NSWSC 432 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A C…

Legislation cited in this decision · 6

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 21A(2)(m), 21A(2)(n), 21A(2)(o), 21... 11 mentions (from Para 64)
Crimes Act 1914 (Cth)
16A, 16A(1), 16A(2), 16A(2)(, 16A(2)(f),... 9 mentions (from Para 78)
Drugs Misuse and Trafficking Act 1985 (NSW)
25(2), 25A 2 mentions
Criminal Code Act 1995 (Cth)
1 mention
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 2)
Part IB Crimes Act 1914 (Cth)
1 mention (from Para 62)

Medium Neutral Citation:	Regina v Lee Clark [2016] NSWDC 174
Hearing dates:	11 August 2016
Date of orders:	19 August 2016
Decision date:	19 August 2016
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1. In relation to Count 1 the section 400.4(1) offence the offender is sentenced to imprisonment for 2 years. I decline to make a recognizance release order because the offender will be serving a sentence for the State offences being Counts 2 to 5 I will impose. 2. In relation to Count 2 the section 25(2) offence relating to the cocaine the offender is sentenced to imprisonment for 4 years with a non-parole period of 2 years and 8 months to date from 26 March 2015. 3. In relation to Count 3 the section 25(2) offence relating to the MDMA the offender is sentenced to imprisonment for 4 years with a non-parole period of 2 years and 8 months to date from 26 September 2015. 4. In relation to Count 5 the section 25A offence the offender is sentenced to imprisonment for 3 years with a non-parole period of 2 years to date from 26 September 2016. 5. In relation to Count 4 the section 25(2) offence relating to the steroids the offender is sentenced to imprisonment for 4 years and 6 months with a non-parole period of 1 years and 6 months to date from 26 September 2017. 6. The overall effective sentence I have imposed is one of 8 years imprisonment with a non-parole period of 5 years to date from 26 March 2014. The offender will be eligible to be released on parole on 25 March 2019.
Catchwords:	CRIMINAL LAW – proceeds of crime – drugs – possession – supply – ongoing supply – cocaine – ecstasy – steroids – anabolic compounds – human growth hormone – commercial quantity – significant quantity SENTENCE – plea of guilty – offer of assistance to authorities – aggravating factors – mitigating factors – first time in custody – remorse – contrition – community support – prospects of rehabilitation – specific deterrence – general deterrence – totality principles
Legislation Cited:	Crimes Act 1914 (Commonwealth) ss.16A, 16A(1), 16A(2), 16A(2)(f), 16A(2)(j), 16A(2)(k), 16A(2)(m), 16A(2)(n), 17A(1) Criminal Code Act 1995 (Commonwealth) s400.4(1) Drugs (Misuse and Trafficking) Act 1985 (NSW) ss. 25(2), 25A Crimes (Sentencing Procedure) Act 1999 ss. 3, 3A, 5, 21A, 21A(2)(m), 21A(2)(n), 21A(2)(o), 21A(3)(f), 21A(3)(g), 21A(3)(h), 21A(3)(i), 21A(3)(k),
Cases Cited:	Veen v R (No 2) (1988) 164 CLR 465 R v McNaughton (2006) 66 NSWLR 566 Baumer v R (1988) 166 CLR 51 BW v R [2011] NSWCCA 176 R v Wilkinson (No 5) [2009] NSWSC 432 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Hili v The Queen (2010) 242 CLR 520 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Palijan v R [2010] NSWCCA 142 R v Scognamiglio (1991) 56 A Crim R 81 R v Wright (1997)…