Clifford v The Queen - [2011] VSCA 199

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clifford v The Queen

Details

AGLC: Clifford v The Queen [2011] VSCA 199
Case: [2011] VSCA 199
Decision Date: 30 June 2011

CaseChat Overview and Summary

The case of Clifford v The Queen involved an appeal by the appellant against his sentence following a conviction for armed robbery. The High Court of Australia was tasked with reviewing the sentence imposed by the lower court, focusing on whether the punishment was commensurate with similar crimes and whether the totality principle was appropriately applied. Additionally, the appeal challenged the decision to cancel parole eligibility and questioned the consideration given to the appellant's rehabilitation prospects.

The central legal issues revolved around the principles of parity and totality in sentencing, the appropriate consideration of parole eligibility, and the weight to be given to the appellant's rehabilitation prospects. The court examined whether the sentence was disproportionate compared to similar offences, whether the totality of the appellant's sentences for multiple crimes was excessive, and if the decision to deny parole eligibility was justified. Moreover, the court assessed whether the sentencing judge had adequately considered the appellant's potential for rehabilitation.

The High Court found that the lower court had not properly applied the principles of parity and totality. It determined that the sentence imposed was excessively harsh when compared to sentences for similar crimes and that the totality principle was not adequately considered. Furthermore, the court ruled that the decision to cancel parole eligibility was flawed due to insufficient consideration of the appellant's rehabilitation prospects. Consequently, the appeal was allowed, and the matter was remitted to the lower court for resentencing. The court emphasized the need for a balanced approach that considers both punitive and rehabilitative aspects of sentencing.

Orders