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18
Court of Criminal Appeal 19 November 2009

Matthew CLINTON v R

[2009] NSWCCA 276

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE CURIAL PUNISHMENT WHETHER SOME LESSER SENTENCE WARRANTED.

Citation: Matthew Clinton v R [2009] NSWCCA 276
Court: NSW Court of Criminal Appeal
Date: 19 November 2009
Judge(s): Allsop P, Howie J, Hislop J

Background

The appellant was sentenced in the District Court for two offences arising from the same incident: aggravated entry into a dwelling house with intent to steal (carrying a maximum of 14 years imprisonment), and demanding property with menaces (maximum 10 years). Four additional matters were taken into account on a Form 1 at sentencing.

The offending occurred at around 3am when the appellant entered the victim's home through a rear window. He armed himself with a kitchen knife, concealed his face with a shirt, and repeatedly threatened the householder while demanding money, cards, and valuables. When the victim struck the appellant with a wooden stool, the appellant lunged at him with the knife and bit two of his fingers before being pushed outside. The appellant later attended hospital and received approximately 20 stitches.

The District Court sentenced the appellant to a non-parole period of 3 years with a 1-year balance of term for the entry offence, and a non-parole period of 18 months with a 6-month balance for the demand offence, both running concurrently from 1 June 2007. The appellant sought leave to appeal on the grounds that the sentencing judge had erred in weighing two mitigating factors.

  • Whether the sentencing judge gave insufficient weight to the appellant having served approximately 16 months in protective custody (a strictly managed area of protection in prison)
  • Whether the sentencing judge erred in finding that the injuries the appellant sustained during the offence did not constitute extra-curial punishment (punishment effectively already inflicted outside the court process, which can reduce the sentence imposed)

Decision

Ground 1: Protective custody. Howie J accepted that time spent in protective custody can, in principle, be treated as a mitigating factor on sentence, because such custody is more onerous than standard imprisonment. However, the Court found no error in the weight the sentencing judge assigned to this factor. The evidence showed the appellant had chosen protection and had spent meaningful periods outside the protected unit, and the judge had expressly acknowledged the protective custody in his remarks on sentence.

Ground 2: Extra-curial punishment. The Court acknowledged that injuries sustained by an offender in the course of committing an offence can, in appropriate circumstances, constitute extra-curial punishment warranting a sentencing discount. Here, the appellant received a significant head wound requiring around 20 stitches. The Court found, however, that the injuries were directly caused by the victim lawfully defending himself and his property. The sentencing judge's conclusion that these injuries did not warrant a reduction was not attended by error. The injuries were a foreseeable consequence of the appellant's own violent conduct.

Adequacy of the sentence overall. Although both grounds of appeal failed, Howie J expressed doubt about whether the concurrent sentences adequately reflected the overall criminality. His Honour observed that the two offences were distinct in nature and that concurrent sentences for them were difficult to justify. The sentencing judge's discretion had arguably miscarried in not imposing cumulative sentences and in a total sentence that may have been lenient given the aggravating features: the use of a weapon, violence against a householder in his own home, the appellant being on bail, a relevant prior record, and the Form 1 matters. Despite these observations, the Court declined to interfere because the Crown had not sought to appeal the sentence's adequacy and any resentencing would not benefit the appellant.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Time spent in protective custody can be a mitigating factor on sentence, but a sentencing court is not required to give it substantial weight where the evidence shows the protection was self-requested and not continuous throughout the full term.
  • Injuries sustained by an offender that are the direct and foreseeable result of a victim lawfully defending themselves may not qualify as extra-curial punishment warranting a sentencing discount.
  • The Court of Criminal Appeal confirmed, citing Cahyadi v R and Mack v R, that concurrent sentences are not automatically appropriate simply because two offences arise from the same criminal episode: the distinct criminality of each charge must be considered.
  • In dismissing the appeal, Howie J noted significant reservations about the leniency of the overall sentence, signalling that home invasions involving armed threats against occupants call for salutary sentences reflecting both denunciation and general deterrence.
  • No resentencing occurred despite identified concerns, because the Crown had not cross-appealed and intervention would only have disadvantaged the appellant.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 99(1), 111(2), 114(1)(d)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11

Cases
- R v Howard [2001] NSWCCA 209
- R v Rose [2004] NSWCCA 326
- R v Patison [2003] NSWCCA 171; 143 A Crim R 118
- R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581
- R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Sukkar [2006] NSWCCA 92
- Silvano v R [2008] NSWCCA 118; 184 A Crim R 593
- Whybrow v R [2008] NSWCCA 270
- Sharpe v R [2006] NSWCCA 255
- Alameddine v R [2006] NSWCCA 317
- R v Davidson ex parte A-G (Qld) [2009] QCA 283
- The Queen v De Simoni (1981) 147 CLR 383
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Mack v R [2009] NSWCCA 216