Clifford v The Queen
[2011] VSCA 199
•30 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0269
| DAVID PATRICK CLIFFORD | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 June 2011 |
| DATE OF JUDGMENT | 30 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 199 |
| JUDGMENT APPEALED FROM | DPP v Clifford (Unreported, County Court of Victoria, Judge Patrick, 30 July 2010) |
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CRIMINAL LAW – Appeal against sentence – Parity – Totality – Parole cancellation - Rehabilitation – Appeal allowed.
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| Appearances: | Counsel | Solicitors |
For the Appellant | Mr L Carter | C D Traill Lawyers |
| For the Respondent | Mr B Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I agree with Lasry AJA, and would resentence the appellant as his Honour proposes.
LASRY AJA:
On 30 July 2010, the appellant was sentenced in the County Court on three counts in a presentment. The appellant had pleaded guilty to the first count of common assault, which was a separate offence, and was later found guilty by a jury of one count of false imprisonment (count 2) and one count of intentionally causing injury, the statutory alternative to what had been count 3 – a count of intentionally causing serious injury. At the end of the jury trial he was acquitted of counts of intentionally causing serious injury, recklessly causing serious injury, making a threat to kill and making a threat to inflict serious injury
After hearing a plea on behalf of the appellant, the learned sentencing judge imposed the following sentences:
| Count | Offence | Sentence |
| Count 1 | Common Law Assault | 6 months’ imprisonment |
| Count 2 | False Imprisonment (Common Law) | 6 months’ imprisonment |
| Count 3 | Intentionally Cause Serious Injury | Acquitted |
| Alternative to Count 3 | Intentionally Cause Injury | 30 months’ imprisonment |
| Count 4 | Recklessly Cause Serious Injury | Acquitted |
| Count 5 | Threat to Kill | Acquitted |
| Count 6 | Threat to Inflict Serious Injury | Acquitted |
| Alternative to Count 6 | Intentionally Cause Injury | Acquitted |
It was ordered that the sentence on count 2 be concurrent with the sentence on the count of intentionally causing injury and 3 months of the sentence on count 1 be cumulative on that count. The result was a total effective sentence of 33 months and 21 months was fixed as a minimum before being eligible to apply for parole.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), her Honour indicated that, but for the plea of guilty in relation to count 1, the sentence would have been 36 months’ imprisonment with a minimum of 24 months.
In addition, having breached his parole in relation to an unrelated sentence for drug offences, the appellant is serving a total effective sentence of four and a half years with a non-parole period of three and a half years. He was also in breach of a suspended sentence which was imposed on him on 5 December 2007 in the Magistrates’ Court for resisting arrest and drug and driving offences.
On 17 November 2010, Ashley JA granted leave to appeal pursuant to s 315 of the Criminal Procedure Act 2009 (Vic).
Circumstances of Offending
The circumstances of the appellant’s offending were set out by the sentencing judge as follows:
The offences to which you have pleaded guilty or been found guilty occurred at a licensed bar in Brunswick Street, Fitzroy on 13 June 2008. On that evening a 21st birthday party was being held for your sister, Ms Rachel Clifford. At about 11pm an altercation occurred between you and another person. You offered to fight the other person outside and called upon Mr Tim Sauvarin, a friend of your sister’s, to help you get the other person outside. Mr Sauvarin declined and was told ‘if he doesn’t go outside then you will’. After which you head-butted Mr Sauvarin causing pain and redness to the left side of his face (Count 1, common law assault).
The owner and operator of the licensed bar, Mr Bromilow, was concerned about the amount that you and your brother, Mr Kieran Clifford, had been drinking, as well as your behaviour. He was intending to ask you to leave the premises. He followed you and your brother to the toilet area. After entering into the main part of the toilet area, Mr Bromilow’s path was blocked by Mr Kieran Clifford who prevented him leaving. While Mr Bromilow said that that person was David Clifford it was common ground that he was mistaken about the name. At that point you and a third unknown man were at the urinals. Mr Bromilow said that your brother and you had been a problem and should leave. Mr Kieran Clifford told Mr Bromilow that he was the problem.
Mr Bromilow’s evidence at the trial was that he asked your brother to move away from the door. At that point he saw movement from behind and was hit in the back of the head several times. Your brother then hit him in the face. He went down to his knees and your brother made a threat to him. He said all three were then kicking into him and punching him then you grabbed him in the eye and was trying to gouge his eye. He said he knew it was ‘the other brother’ because of the orange colour on the shirtsleeve. He said he was trying to get to the door. He was knocked down and was pleading to be let out whilst continually being assaulted. Further threats were made by your brother. On the third or fourth try he got to the door and was able to pull it open and get out.
Mr Bromilow said he suffered two major fractures in his ribs and a hairline fracture as well as two black eyes and a lot of bruising to his body, arms, chest and back of his head.
Your defence was that the prosecution could not prove beyond reasonable doubt that you had been in any way involved in the false imprisonment of Mr Bromilow or the attack on him and that the possibility could not be excluded that you remained at the urinal and that the incident was over by the time you had finished.[1]
[1]DPP v Clifford (Unreported, County Court of Victoria, Judge Patrick, 30 July 2010), [5]–[9] (‘Reasons’).
As appears from her Honour’s reasons, the appellant pleaded not guilty to all counts except the first count. In delivering their verdict, the jury announced that they found the appellant guilty on the counts they did on the basis that he was acting as an aider and abettor. Her Honour made her own finding about the role played by the appellant:
I have reviewed the evidence of Mr Bromilow and his responses in cross‑examination by your counsel and, on the basis of his evidence and the jury verdict, I am satisfied beyond reasonable doubt that you were one of the two men that came up behind Mr Bromilow and attacked him from behind. I am satisfied that you were the person who Mr Bromilow described as having an orange sleeve who tried, as he said, to gouge his eye. It is not possible on the evidence to say whether it was you or the third man who engaged in specific acts of kicking or hitting Mr Bromilow.
On Mr Bromilow’s evidence he made a number of attempts to leave the bathroom area but was not permitted to do so. It appears from their verdict that the jury accepted Mr Bromilow’s evidence as to the ongoing nature of the false imprisonment and was satisfied that you had aided and abetted in that false imprisonment. On the evidence of Mr Bromilow, the way in which you had done that was with the third man coming up behind Mr Bromilow and taking part in the assault on him. I accept the defence submission that, whilst two offences were committed, it was the same involvement by you which provided the factual foundation for the jury’s guilty verdict.[2]
[2]Ibid [11]–[12].
Thus, although the jury specifically announced the basis on which they reached their verdict against the appellant as aiding and abetting, her Honour concluded that there was actual involvement by him in the actions which constituted the offences.
At the time of these offences the appellant was on parole in relation to drug and firearms offences. The offences that are the subject of this appeal were committed only a month after his release on parole on 13 May 2008. By the time he was sentenced for the current offences, he had been reclaimed by the Parole Board. The result was that appellant’s total effective sentence, including the reclaimed parole period, was 54 months’ imprisonment.[3]
[3]R v Hunter (2006) 14 VR 336.
The brother of the appellant, Kieran Clifford, was sentenced by a different judge of the County Court for his role in the incident on 15 December 2009. Following his pleas of guilty, he was sentenced as follows:
| Count | Offence | Sentence |
| Count 1 | False imprisonment | 3 months’ imprisonment |
| Count 2 | Intentionally Cause Injury | 19 months’ imprisonment |
| Count 3 | Making a threat to kill | 9 months’ imprisonment |
Three months of the sentence on count 3 was ordered to be served cumulatively on the sentence on count 2 resulting in a total effective sentence of 22 months’ imprisonment. 18 months of the sentence was suspended for a period of three years. The effect of the sentence was that he was released on a suspended sentence after serving 4 months’ imprisonment.
This Appeal
There are four grounds of appeal:
(1) That the sentences imposed on the appellant are manifestly disparate with those imposed on the co-offender Kieran Clifford (parity);
(2) That the sentencing judge erred in concluding that the appellant’s prospects of rehabilitation were low;
(3) That the sentencing judge erred by failing to have adequate regard to the principle of totality given that at the time of his sentence the appellant was serving a period of reclaimed parole; and
(4) That the individual sentences, total effective sentence and non-parole period are manifestly excessive.
Parity
In his submissions on behalf of the appellant, Mr Carter of counsel submitted that the disparity between the sentences of the appellant and his brother cannot be justified.
Counsel submitted that the consequences of the offending for the victim, Mr Bromilow, do not provide any basis for differentiation, with the injuries being at the higher end of the offence of intentionally causing injury. The conclusion that the disparity cannot be justified is also said to be compelled by the following matters:
(1) The appellant’s brother played a more serious role in the offending as opposed to the appellant who, the jury specifically asserted, was found guilty on the basis of being aider and abettor;
(2) Unlike the appellant, his brother had prior convictions for violence which, it was argued ‘illuminate[d]’ his brother’s moral culpability;[4]
[4]Veen v The Queen (No 2) (1988) 164 CLR 465, 477.
(3) Although the appellant’s brother pleaded guilty, the appellant also pleaded guilty to one count and was acquitted of several of the original counts with which he was charged;
(4) Although the appellant’s rehabilitative prospects were less than his brother’s, rehabilitation was still a significant factor in the sentence to be imposed on him and they shared a difficult background; and
(5) The effect of the disparity is that the appellant will serve more than five times longer in custody than his brother will, that being 21 months’ imprisonment as opposed to 4 months.
It was thus argued that the appellant and his brother should have received the same sentence or, at least, that the appellant’s sentence should be significantly reduced.
The Crown, on the other hand, points to the fact that the appellant committed these offences whilst on parole and subject to a suspended sentence and, so far as the offending itself was concerned, was no mere bystander. He was actively involved. He had also pleaded guilty to an additional offence of common assault. Although the appellant did not have prior convictions for violence, it was submitted that his character was not ‘divisible’ and that the long list of non-violent convictions show a continuing disregard for the law. Kieran Clifford, on the other hand, had displayed some remorse and, unlike the appellant, had good prospects of rehabilitation. It was further submitted for the respondent that although the sentence imposed on Kieran Clifford was ‘much less’ than might have been expected, it was specifically intended to further his rehabilitation and therefore the disparity was reasonably justified because of that and his ‘significantly’ lesser age.
Mr Gyorffy also submitted that the sentencing judge was well aware of the parity issue and dealt with it in her reasons. Relevantly, the main comparative matters her Honour referred to were that:
· the appellant’s role in the offending was less than his brother’s role;
· the appellant’s brother physically barred the door, started the physical aggression and made threats;
· the appellant came to his brother’s assistance;
· the appellant did not plead guilty and has not demonstrated remorse; and
· the prospects of the appellant’s brother for rehabilitation were good, for the reasons that her Honour stated.
In making submissions on the ground of parity, counsel for the appellant invited us to consider whether it was reasonably open to the sentencing judge in the circumstances of this case to differentiate between the co‑offenders in the way she did. For this ground to succeed, it must be demonstrated that the conclusion as to sentence differentials was not reasonably open and – as this Court recently said in DPP v Karazisis[5] in relation to manifest excess – that should be viewed as a difficult hurdle to surmount.
[5][2010] VSCA 350, [124]–[128].
However, in my opinion, the discrepancy between the sentences imposed on the appellant and his brother is substantial, given the circumstances and the respective roles that they played. The discrepancy leads me to conclude that the sentence imposed on the appellant was not reasonably open. It is significant that the appellant was found guilty by the jury as an aider and abettor. It is also significant that, although he pleaded guilty, Kieran Clifford’s offending included the offence of making a threat to kill, which did not apply to the appellant, he having been acquitted of that count on the presentment. That threat was made after the victim of this attack was being prevented from leaving the toilet area, and was repeated. It was directed both at him and his family. In addition, Kieran Clifford assaulted the victim during the course of these events. After that act, the threat to kill - which was directed at the victim and his family - was repeated.
In sentencing Kieran Clifford, the judge qualified the remorse that she found applied to him because he had sought to suggest, even during the plea, that the victim had played some role in provoking what occurred, yet provided no evidence to support such an assertion.
The significant difference between the brothers is concerned with rehabilitation and some differentiation was justified on that basis. However, there remained some factors that were not in Kieran Clifford’s favour, including his angry confrontation of the police informant at a bail application for the appellant during 2010. The judge concluded that Kieran Clifford still had some way to go in controlling his temper.
Whilst I do not consider that the same sentence should have been imposed on both brothers, given the difference in their pleas and, particularly, their prospects for rehabilitation, I do regard the discrepancy between the two sentences as being manifestly excessive and hence I conclude that the sentence imposed on the appellant was not reasonably open. This ground is established and requires the appellant to be resentenced.
Rehabilitation
This ground is based on the sentencing judge’s conclusion that the appellant’s prospects of rehabilitation were ‘low’. Her Honour said:
On the basis of your history so far and the material before me your prospects of rehabilitation are low. You clearly have the intelligence to understand your situation and to have a successful career. It seems that you have also had sufficient insight and determination to stay away from illegal drugs. Unfortunately you have been unable to stay away from alcohol and have committed these offences involving significant aggression despite being on parole and having a suspended sentence hanging over your head. It is clear that specific deterrence should play a significant part in your sentence. [6]
[6]Reasons, [37].
In this Court, the appellant accepted that the sentencing judge was entitled to be ‘guarded’ about those prospects but argued that the adjective ‘low’ was not justified on the evidence. It was submitted that, as a result, too much weight was accorded to specific deterrence and not enough to promoting the rehabilitation of the appellant.
In my view, as the respondent has submitted, there could be no question that such a finding was open on the evidence. There was a long period of offending over some ten years and, as is clear from the debate about totality, it included breaching parole and a suspended sentence. The appellant’s history spoke for itself and, given the concession made on his behalf, there is no utility in a debate about which adjective was appropriate. Her Honour’s conclusion was appropriate and supported by the evidence before her.
This ground is not made out.
Ground 3 - Totality
The complaint under this ground is, in effect, that although the sentencing judge referred to the principle of totality in imposing the sentence, she did not appear to have taken it into account in the manner the law requires.
Section 5(2AA)(a) of the Sentencing Act 1991 (Vic) provides:
(2AA) Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to—
(a) any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind;
…
In this Court in R v Piacentino & Ahmad[7] it was noted:
In Mill v R the High Court adopted the explanation of the principle as articulated by D A Thomas in Principles of Sentencing, namely, as requiring a sentencer who has passed multiple consecutive sentences ‘to review the aggregate sentence and consider whether the aggregate is “just and appropriate”’ and that ‘it is always necessary for the court to take a last look at the total just to see whether it looks wrong’.
McHugh J stated in Postiglione v R, that totality ‘requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged’ but it extends to ‘the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence’. [8]
[7](2007) 15 VR 501 (‘Piacentino’).
[8]Ibid 507 (original references excluded).
Where parole has been cancelled at the time of sentence, the totality principle is to be applied on the assumption that the offender will be required to serve the full term of the unexpired parole. That is because s 5(2AA)(a) prohibits speculation about the possibility that the Parole Board might release the offender on parole before the end of that period.[9] As Buchanan JA expressed the point in Piacentino:
a sentencing court which takes into account the fact that parole has been revoked is not having regard to any possibility or likelihood that the length of time spent in custody will be affected in the future, but rather having regard to a state of affairs then in existence.[10]
[9]R v Hunter (2006) 14 VR 336, 341 [29], affirmed in Piacentino.
[10]Piacentino (2007) 15 VR 501, 502.
In dealing with this issue, the sentencing judge said:
The prosecutor in sentencing submissions said that totality was an important consideration and that there should be at least partial concurrency between sentences.[11]
[11]Reasons, [32].
She added:
Counsel submitted that I should take into account that you had a further 18 months to do on your current sentence, plus you face the risk of the reimposition of the nine months suspended sentence. I have borne those matters in mind in a general sense in determining the appropriate sentence.[12]
[12]Ibid [25].
In this Court, the respondent accepted that her Honour’s expression was ‘infelicitous’ but submitted that sufficient heed was given to the principle. During submissions before us, Mr Gyorffy accepted that the manner in which the sentencing judge took the re-claimed parole into account was not in accord with Piacentino. He accepted that the appellant should have been sentenced on the basis that the whole of the term of his re-claimed non parole period will have to be served. The question he submitted we needed to resolve was whether or not sufficient weight had been given to this circumstance. He also submitted that, given the nature of these offences and the earlier offences which breached both parole and a suspended sentence, it was open to her Honour to come to the conclusion she did.
Given my conclusion in relation to the parity ground, clearly I do not agree. In addition to that, in my opinion, the sentencing judge has not given effect to the principle of totality in the manner in which the authorities require. There is nothing in her Honour’s sentencing remarks to indicate that she had specifically reviewed the total criminality and total sentence (including the reclaimed parole) to consider whether, in that complete sense, it was just and appropriate. There is also nothing to indicate that her Honour acted on the basis that the appellant would be required to serve all of his unexpired sentence.
Therefore, in my opinion, this ground would also succeed.
It is appropriate to add that Piacentino was decided in this Court in March 2007 and is reported. In those circumstances I would have expected that her Honour would have been given considerably more assistance by counsel on the questions of totality and s 5(2AA) of the Sentencing Act 1991 (Vic). This is but a small example of the importance of judges being able to rely on counsel to draw relevant authorities to their attention.
In my opinion, this ground is established.
The last ground complains of manifest excess of the sentences imposed but given the conclusions I have reached on the earlier grounds, it is not necessary to deal with it.
Conclusion
I would propose that the appellant be resentenced as follows:
| Count | Offence | Sentence |
| Count 1 | Common Law Assault | 3 months’ imprisonment |
| Count 2 | False Imprisonment (Common Law) | 6 months’ imprisonment |
| Alternative to Count 3 | Intentionally Cause Injury | 20 months’ imprisonment |
The presumption of concurrency does not apply to sentences imposed for offences committed while on parole.[13] I would direct that the whole sentence imposed on count 1 and 2 months of the sentence on count 2 be served concurrently with each other and with the sentence imposed on the alternative to count 3, resulting in a total effective sentence of 24 months’ imprisonment. I would fix a non‑parole period of 12 months.
[13]Sentencing Act 1991 (Vic) s 16(1A)(d).
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