Clarke v Regina [2008] NSWCCA 36

Clarke v Regina [2008] NSWCCA 36

Accepting the authority of R v Quartly, the daughter's report of the deceased's conduct was not available as hearsay provocation. However, excluding that report, the applicant's culpability for manslaughter remained sufficiently serious and no lesser sentence was warranted. The findings that the applicant intended to inflict grievous bodily harm and was not acting in self-defence were open, and even if manslaughter were approached as an unlawful and dangerous act, the sentence imposed was not shown to be excessive.

Jurisdiction
Australia
Judgment Date
27 February 2008
Procedural Posture
Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal Against Sentence
Outcome
Extension of time to appeal and leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['manslaughter' 'provocation' 'hearsay Provocation' 'excessive Self Defence' 'unlawful and Dangerous Act' 'sentence Severity']
['criminal Law and Procedure' 'sentencing'] ['manslaughter' 'provocation' 'hearsay Provocation' 'excessive Self Defence' 'unlawful and Dangerous Act' 'sentence Severity']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred in accepting hearsay provocation as a basis on which murder was reduced to manslaughter.' 'Whether the sentencing judge erred in applying a lower degree of provocation following the finding of provocation.' "Whether the applicant's culpability should have been assessed on the basis of unlawful and dangerous act manslaughter rather than intent to inflict grievous bodily harm." 'Whether any lesser sentence than that imposed was warranted.']

Ratio Decidendi

Accepting the authority of R v Quartly, the daughter's report of the deceased's conduct was not available as hearsay provocation. However, excluding that report, the applicant's culpability for manslaughter remained sufficiently serious and no lesser sentence was warranted. The findings that the applicant intended to inflict grievous bodily harm and was not acting in self-defence were open, and even if manslaughter were approached as an unlawful and dangerous act, the sentence imposed was not shown to be excessive.

Court Disposition

Extension of time to appeal and leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Extension of time to make the application granted.' 'Leave to appeal against sentence granted.' 'Appeal dismissed.']