Clappison v R

[2017] NSWCCA 33

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Mark Anthony CLAPPISON v R [2017] NSWCCA 33
Hearing dates:	13 February 2017
Date of orders:	10 March 2017
Decision date:	10 March 2017
Before:	Hoeben CJ at CL at [1]; Johnson J at [2]; Latham J at [3].
Decision:	(1) Leave to appeal granted and appeal allowed (2) The sentences imposed on 14 August 2015 are quashed. (3) Remit the matter to the District Court for a hearing de novo pursuant to s 12(2) of the Criminal Appeal Act 1912. (4) The matter is listed for mention at Sydney District Court on 17 March 2017.
Catchwords:	CRIMINAL LAW – appeal against sentence – historical homosexual offence – where form 1 contravenes s 33(4) Crimes (Sentencing Procedure) Act 1999 – remittal to District Court
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW)
Category:	Principal judgment
Parties:	Applicant: Mark Anthony Clappison Respondent: Regina
Representation:	Counsel: Applicant: P Doyle Respondent: E Balodis   Solicitors: Applicant: G Breton Respondent: C Hyland, NSW DPP
File Number(s):	2013/00269489
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 14 August 2015 Before: McLoughlin DCJ File Number(s): 14/00149679

Judgment

1. HOEBEN CJ at CL:  I agree with Latham J and the orders which she proposes.

2. JOHNSON J: I agree with Latham J.

3. LATHAM J: The applicant seeks leave to appeal against a sentence imposed upon him by McLoughlin SC DCJ on 14 August 2015, following his pleas of guilty to a number of offences. For the reasons that appear below, the matter must be remitted to the District Court for resentencing.

4. The applicant was sentenced in relation to a count of homosexual intercourse with a male under 10, pursuant to s 78H of the Crimes Act 1900 which carried life imprisonment. That offence occurred in 1984 when the applicant was 19 years of age and the victim was aged nine. The offence consisted of an act of penile/anal intercourse. A further count of homosexual intercourse with a male under 10 was taken into account on a Form One at the time that his Honour sentenced the applicant on the count on indictment. That offence consisted of an act of fellatio performed upon the same victim on the same occasion.

5. These offences did not come to the attention of police until June 2013. The applicant was arrested on 5 September 2013, charged and admitted to bail.

6. The applicant was also sentenced in relation to two counts of sexual intercourse with a person aged between 14 and 16 years and one count of aggravated indecent assault on a person under the age of 16 years. Those offences were committed in May 2014, while the applicant was on bail for the historical offence. All three offences were committed on a 14-year-old boy who was, at the relevant time, living in a refuge and had been invited to the applicant’s premises after a gathering organised by an agency providing care for the homeless.

7. On the count of homosexual intercourse, the applicant received a non-parole period of six years to commence 18 May 2014 with an additional term of two years. On one count of sexual intercourse with a person aged 14 years, the applicant was sentenced to a non-parole period of two years to commence on 18 May 2020 with a balance of term of one year. On the further count of sexual intercourse with a person aged between 14 and 16, the applicant received a non-parole period of five months to commence on 18 March 2023, with a balance of term of three years and one month. On the aggravated indecent assault, the applicant received a non-parole period of 10 months commencing 18 May 2022 with a balance of term of one year and five months.

8. The total head sentence was one of 12 years and four months imprisonment, with a non-parole period of nine years and three months.

9. The applicant’s only ground of appeal was that the sentence imposed in respect of the homosexual intercourse count was manifestly excessive having regard to the sentencing patterns and practices that were applicable at the time of the offence.

10. On the hearing of the appeal, the argument was confined to the alteration of the non-parole period imposed in relation to that offence, on the basis that the sentencing judge made no allowance for the sentencing practices and procedures that were in place in 1984, in particular the practice that the non-parole period imposed was usually in the order of one third to one half of the head sentence. The Court was at pains to point out that it was not possible to interfere with the sentence imposed on one count, without reopening the entire sentencing exercise.

11. Following the hearing of the appeal, it became apparent that the applicant’s sentence in relation to the homosexual intercourse count was infected by error, in that an offence carrying life imprisonment was included on the Form One and taken into account for the purposes of sentence on the count on indictment. This is a contravention of s 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999.

12. The Court invited supplementary submissions from the parties. Both the applicant and the Crown maintained that the applicant should be returned to the District Court for the purposes of correcting the error and sentencing the applicant according to law.

13. I am of the view that remittal to the District Court is the only course available in the circumstances of this appeal. The offence on the Form One was serious in its own right. It is for the Director of Public Prosecutions to determine whether a fresh indictment issues which contains the Form One offence, or whether a different procedure is adopted. Whatever the outcome, the whole of the sentencing exercise will have to be carried out afresh.

14. Accordingly, I propose the following orders:-

1. Leave to appeal granted and appeal allowed

2. The sentences imposed on 14 August 2015 are quashed.

3. Remit the matter to the District Court for a hearing de novo pursuant to s 12(2) of the Criminal Appeal Act 1912.

4. The matter is listed for mention at Sydney District Court on 17 March 2017.

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Decision last updated: 10 March 2017