Clarke v R [2021] NSWCCA 248

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Clarke v R [2021] NSWCCA 248 Hearing dates: 16 June 2021 Date of orders: 27 October 2021 Decision date: 27 October 2021 Before: Meagher JA at [1] Garling J at [2] Beech-Jones J at [88] Decision: See [93] Catchwords: CRIME – Appeals – appeal against sentence – two co-offenders sentenced contemporaneously for similar but not identical offences – aggregate sentence imposed – alleged grievance at the disparity in the sentences – whether there was marked or clearly unjustifiable disparity – no justifiable sense of grievance from comparison of indicative sentences – differential application of the totality principle has no proper basis – applicant is to be resentenced so his aggregate sentence reflect that of his co-accused – appeal allowed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Afu v R [2017] NSWCCA 246 Ayik v Regina [2013] NSWCCA 119 DGM v Regina [2006] NSWCCA 296 El-Helou v R [2014] NSWCCA 209 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540 Kelly v R [2017] NSWCCA 256 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Clarke [2013] NSWCCA 260 R v Kelly [2005] NSWCCA 280 Tran v Regina [2006] NSWCCA 266 Why v R [2017] NSWCCA 101 Texts Cited: Not Applicable Category: Principal judgment Parties: Harrison Max Clarke (Applicant) Regina Representation: Counsel: G Bashir SC (Applicant) M Millward (Respondent)