Clifton v The King - [2024] VSCA 82

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0013

DANIEL CLIFTON	Appellant
v
THE KING	Respondent

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JUDGES:	EMERTON P and McLEISH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2024
DATE OF JUDGMENT:	30 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 82
JUDGMENT APPEALED FROM:	DPP v Daniel Clifton (Unreported, County Court of Victoria, Judge Rozen, 10 November 2022)

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CRIMINAL LAW – Appeal – Sentence – Appellant guilty of 15 sexual offences against child under 16 – Appellant has diagnosed intellectual disability – Whether error in failure to accord any or due weight to appellant’s intellectual disability in reduction of moral culpability and reduced need for general and specific deterrence – Total effective sentence of 8 years 10 months – Non-parole period of 5 years 10 months – Appeal allowed – Sentences imposed set aside – Appellant re-sentenced to total effective sentence of 7 years and non-parole period of 4 years 9 months.

Muldrock v The Queen (2011) 244 CLR 120; Stevens v The Queen [2021] VSCA 218, applied.

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Counsel
Appellant:		Mr C Terry
Respondent:		Mr R Gibson KC
Solicitors
Appellant:	Mr AL Hands
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
MCLEISH JA:

Introduction

On 15 August 2022, following a trial by jury in the County Court of Victoria, the appellant was found guilty of 15 sexual offences against a minor: one count of rape; 10 counts of sexual penetration of a child under 16; and four counts of committing an indecent act with a child under 16.
On 23 November 2022, the appellant was sentenced as follows:

Charge on Indictment[1]	Offence	Max Penalty	Sentence	Cumulation
Indictment L12535906
1	Sexual penetration of a child under 16[2]	10 years	2 years 6 months	3 months
2	Indecent act with a child under 16[3]	10 years	2 years	2 months
3	Sexual penetration of a child under 16[4]	10 years	2 years 6 months	3 months
4	Indecent act with a child under 16[5]	10 years	1 year 6 months	2 months
5	Sexual penetration of a child under 16[6]	10 years	2 years 6 months	3 months
7	Sexual penetration of a child under 16[7]	10 years	2 years 6 months	3 months
8	Indecent act with a child under 16[8]	10 years	1 year 6 months	2 months
9	Sexual penetration of a child under 16[9]	10 years	3 years	3 months
10	Sexual penetration of a child under 16[10]	10 years	2 years 6 months	3 months
11	Indecent act with a child under 16[11]	10 years	1 year 6 months	2 months
12	Sexual penetration of a child under 16[12]	10 years	3 years	3 months
13	Sexual penetration of a child under 16[13]	10 years	2 years 6 months	3 months
14	Sexual penetration of a child under 16[14]	10 years	2 years 6 months	3 months
15	Sexual penetration of a child under 16[15]	10 years	3 years	3 months
17	Rape[16]	25 years	5…

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 Clifton v The King

Details

AGLC: Clifton v The King [2024] VSCA 82
Case: [2024] VSCA 82
Decision Date: 30 April 2024

CaseChat Overview and Summary

In the matter of Clifton versus The King, the appellant was convicted of fifteen sexual offences against a child under the age of sixteen. The appellant has a diagnosed intellectual disability. The appeal was against the sentence imposed by the trial judge, specifically whether the judge erred in not according sufficient weight to the appellant's intellectual disability in reducing moral culpability and the reduced need for general and specific deterrence. The appellant was sentenced to a total effective sentence of eight years and ten months, with a non-parole period of five years and ten months.

The court had to determine whether the trial judge erred in not adequately considering the appellant's intellectual disability. The court examined relevant case law, including Muldrock v The Queen and Stevens v The Queen, which highlight the importance of considering an offender's intellectual disability when determining sentence. The court concluded that the trial judge did not adequately consider the appellant's intellectual disability, which resulted in an overestimation of the appellant's moral culpability and the need for general and specific deterrence.

The court set aside the sentences imposed and re-sentenced the appellant to a total effective sentence of seven years, with a non-parole period of four years and nine months. The court emphasised the importance of appropriately considering an offender's intellectual disability when determining sentence. The appeal was allowed, and the appellant was re-sentenced.

Orders