Clare v R

Case [2008] NSWCCA 30

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Clare v R [2008] NSWCCA 30

FILE NUMBER(S):
2007/3181

HEARING DATE(S):
23 November 2007

JUDGMENT DATE:
28 February 2008

PARTIES:
William Thomas Clare (Applicant)
The Crown

JUDGMENT OF:
McClellan CJ at CL Hall J Price J   

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2005/1747

LOWER COURT JUDICIAL OFFICER:
Grove J

LOWER COURT DATE OF DECISION:
11 August 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
NSWSC 812

COUNSEL:
J Stratton SC (Applicant)
P G Ingram (Crown)

SOLICITORS:
Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
application for leave to appeal against sentence
principle of totality in sentencing
special circumstances in setting non-parole period
whether overall sentence was manifestly excessive
whether sentence should be concurrent with previous sentence imposed for related offence
charges of manslaughter and sexual intercourse with a child under 10 years
finding that offence was in the worst class of manslaughter

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Serious Sex Offenders) Act 2006

CATEGORY:
Principal judgment

CASES CITED:
Close v Regina (1992) 65 A Crim R 55
Mill v The Queen (1988) 166 CLR 59
Qing An v R [2007] NSWCCA 53
R v Adamson (2002) 132 A Crim R 511
R v Cahyadi (2007) 168 A Crim R 41
R v Forbes [2005] NSWCCA 377
R v Guider [2002] NSWSC 756
R v Hoerler (2004) 147 A Crim R 520
R v Holder [1983] 3 NSWLR 245
R v Ibrahim [2005] NSWCCA 43
R v MMK (2006) 164 A Crim R 481
Simpson v Regina (1992) 61 A Crim R 58

TEXTS CITED:

DECISION:
1. Grant leave to appeal.
2. Uphold the appeal in relation to the sentence for count 2. In relation to that count impose a non-parole period for a term of 15 years and 9 months but otherwise confirm the sentence.
3. Otherwise dismiss the appeal.
4. As a consequence of order 2 the applicant will be eligible for parole on 16 July 2031.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3181

McCLELLAN CJ at CL
HALL J
PRICE J

THURSDAY, 28 FEBRUARY 2008

CLARE, William Thomas  v  R

Judgment

  1. McCLELLAN CJ at CL:  The applicant was presented for trial upon an indictment that pleaded two counts.

  2. Count 1 was in terms that on or about 13 September 2003 at Croydon the applicant had sexual intercourse with J who was a person under the age of ten years, namely three years of age. This count alleged a contravention of s 66A of the Crimes Act 1900 and attracted a statutory maximum penalty of imprisonment for a term of 25 years. The offence carries a standard non-parole period of 15 years.

  3. Count 2 was in terms that on or about 13 September 2003 at Croydon the applicant murdered J. This count alleged a contravention of s 18 of the Crimes Act 1900 and attracted a statutory maximum penalty of imprisonment of life imprisonment (s 19A). A…

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Details
AGLC
Clare v The Queen [2008] NSWCCA 30
Case
[2008] NSWCCA 30
Decision Date

CaseChat Overview and Summary

The case of Clare v R involved the applicant appealing against his sentence for manslaughter and sexual intercourse with a child under 10 years. The applicant had previously been sentenced for offences against the victim’s sister. The Court of Criminal Appeal was tasked with determining whether the sentence imposed was appropriate, particularly in relation to the principle of totality and the non-parole period. The central legal issue was whether the sentence imposed for the manslaughter offence was manifestly excessive and whether it should be concurrent with the previous sentence for the related offence.

The Court of Criminal Appeal held that the trial judge was correct in finding that the manslaughter offence was in the worst class due to the gravity of the crime, which involved the sexual abuse of a 3-year-old child resulting in death. The Court noted that the applicant’s cognitive abilities and background did not justify any reduction in the severity of the sentence. The Court also considered the principle of totality in sentencing, which requires the overall sentence to be proportionate to the totality of the criminality. In this case, the Court found that the trial judge had correctly applied the principle by cumulating the sentences for the aggravated sexual assault and manslaughter. The non-parole period for the manslaughter offence was adjusted to maintain the statutory ratio for the totality of the sentences, resulting in a non-parole period of 15 years and 9 months.

In conclusion, the Court granted leave to appeal and upheld the appeal in relation to the sentence for the manslaughter offence, imposing a non-parole period of 15 years and 9 months. The Court otherwise dismissed the appeal, confirming the rest of the sentence. As a result of this decision, the applicant will be eligible for parole on 16 July 2031. The judges of the Court of Criminal Appeal agreed with the reasoning provided by McClellan CJ at CL.

Orders

Orders of the court

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Background

Background to the litigation

The offences for which the applicant had already been sentenced related to the sexual assault by the applicant of the sister of the victim of the present offences. The sister was aged 6 and the offences occurred on the previous day to the present offences. For the other offences the applicant was sentenced to imprisonment for a total of 16 years with a non-parole period of 12 years and 1 month commencing on 18 September 2003 and expiring on 17 October 2015.The facts The Crown case was that in late 2002 the applicant met the mother of the victims J [the victim of the present offences] and B (his sister) in the vicinity of Croydon railway station. They became acquainted. Sometime in 2003 J’s mother remarked that she needed help looking after the children and the applicant offered to mind them. An arrangement was made that the applicant would be paid $30 per day to look after the children. The children would stay at the applicant’s flat which he shared with Keith Coles. The children would visit their mother in the late afternoon after she returned from work but would then stay overnight at the applicant’s flat. On 13 September 2003 the children returned to the applicant’s flat. At 12.09 am on 14 September 2003 the applicant telephoned 000. He said that a 3 year old boy was vomiting, had choked, was unconscious and was not breathing. The child had not responded to CPR or to what he described as a “little bit of an electric shock” that he had tried on the boy. An ambulance arrived 7 minutes later. Paramedics described the child’s body as cool to the touch. The deceased was taken to Royal Prince Alfred Hospital where resuscitation was attempted without success. A post-mortem examination detected recent tears to the anus of the deceased and bruising to the lining of the rectum. The Crown put its case in the alternative. The first alternative was that the deceased had vomited as a result of the pain of being sexually assaulted by the applicant and choked. The alternative was that the deceased was electrocuted when the applicant applied live electric wires to his body. The applicant did not give evidence at his trial. When sentencing the applicant, his Honour found that death was occasioned by an unlawful and dangerous act by having anal intercourse with the deceased. His Honour accepted expert evidence to the effect that at the time that the applicant applied electrical wires to the deceased in an attempt to revive him he was already dead. His Honour did not find that the applicant intended to kill or inflict grievous bodily harm on the victim. Subjective matters The applicant was born on 27 October 1971 and was 34 when he was sentenced. The applicant had been a ward of the State from when he was 4 or 5 years old and never saw his parents again. A report from a neuropsychologist, Dr Langeluddecke, concluded that the applicant was in the “low average” or “borderline” levels of cognitive ability and placed him within the 4th percentile when compared with other persons of a similar age.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ
In the present case I am satisfied that his Honour was correct in finding that the offence was in the worst class of manslaughter. The abuse of a 3 year old child for sexual gratification by anal penetration resulting in death is a crime of the utmost gravity. Furthermore, the subjective circumstances of the applicant did not justify any amelioration of the sentence. In my opinion the sentence which his Honour imposed for count 2 was within his Honour’s discretion.Conclusion Accordingly, I am satisfied that the applicant has made good ground 2 of the appeal but fails on grounds 1 and 3. The non-parole period in relation to the manslaughter offence should be varied so that the statutory ratio for the totality of his sentences is maintained. This would have the consequence that the non-parole period for the manslaughter offence would be reduced to a term of 15 years and 9 months.Orders1. Grant leave to appeal.2.Uphold the appeal in relation to the sentence for count 2. In relation to that count impose a non-parole period for a term of 15 years and 9 months but otherwise confirm the sentence.3. Otherwise dismiss the appeal.4.As a consequence of order 2 the applicant will be eligible for parole on 16 July 2031. HALL J: I agree with McClellan CJ at CL. PRICE J: I agree with McClellan CJ at CL.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

The Crown submitted that there was no relevant error. His Honour gave careful consideration to questions of concurrency and accumulation and determined to provide that the sentence for the aggravated sexual assault should be made wholly concurrent with the sentence imposed for manslaughter. Having made this decision his Honour determined to cumulate the former upon the latter having regard to the totality of the criminality for which the applicant was to be sentenced.Consideration The sentencing of an offender for multiple offences can cause difficulties. Although mindful of the need to impose an appropriate punishment for the individual offences, the Court must ensure that the overall sentence remains appropriate having regard to the totality of the offending. The relevant principles were recently considered by this Court in R v MMK (2006) 164 A Crim R 481 and R v Cahyadi (2007) 168 A Crim R 41. In R v Holder [1983] 3 NSWLR 245 at 260; (1983) 13 A Crim R 375 at 389, Street CJ described the principle in these terms:“… The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences …” In R v Cahyadi Howie J (with whom Price J agreed) said:“In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.” (at [27])