| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0013 |
| DANIEL CLIFTON | Applicant |
| v | |
| THE KING | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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| JUDGES: | MACAULAY JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 August 2023 |
| DATE OF JUDGMENT: | 22 September 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 232 |
| JUDGMENT APPEALED FROM: | DPP v Daniel Clifton (Unreported, County Court of Victoria, Judge Rozen, 10 November 2022) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant guilty of 15 sexual offences against child under 16 – Total effective sentence of 8 years 10 months, non-parole period of 5 years 10 months – Applicant has intellectual disability – Whether error in failure to apply principles in Muldrock v The Queen – Whether sentence manifestly excessive – Leave to appeal sentence granted.
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| Counsel | ||
| Applicant: | Mr C Terry | |
| Respondent: | Ms M Mahady | |
Solicitors | ||
| Applicant: | Adrian Paull Criminal Lawyers | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
MACAULAY JA:
The applicant was convicted by jury verdict in the County Court on 15 August 2022 of one count of rape, 10 counts of sexual penetration of a child under 16 years, and four counts of committing an indecent act with a child under the age of 16. Following a plea in mitigation on 14 October 2022 he was sentenced on 23 November 2022 to a total effective sentence of 8 years and 10 months’ imprisonment, to serve a period of 5 years and 10 months before being eligible for parole. These reasons concern his application for leave to appeal against sentence.[1]
[1]This application is determined by a single judge pursuant to s 315 of the Criminal Procedure Act 2009. An extension of time within which to file the application for leave to appeal was granted on 18 April 2023.
The full details of the sentence is as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| Indictment L12535906 | ||||
| 1 | Sexual penetration of a child under 16[2] | 10 years’ imprisonment | 2 years and 6 months’ imprisonment | 3 months |
| 2 | Indecent act with a child under 16[3] | 10 years’ imprisonment | 2 years’ imprisonment | 2 months |
| 3 | Sexual penetration of a child under 16[4] | 10 years’ imprisonment | 2 years and 6 months’ imprisonment | 3 months |
| 4 | Indecent act with a child under 16[5] | 10 years’ imprisonment | 1 year and 6 months’ imprisonment | 2 months |
| 5 | Sexual penetration of a child under 16[6] | 10 years’ imprisonment | 2 years and 6 months’ imprisonment | 3 months |
| 7 | Sexual penetration of a child under 16[7] | 10 years’ imprisonment | 2 years and 6 months’ imprisonment | 3 months |
| 8 | Indecent act with a child under 16[8] | 10 years’ imprisonment | 1 year and 6 months’ imprisonment | 2 months |
| 9 | Sexual penetration of a child under 16[9] | 10 years’ imprisonment | 3 years’ imprisonment | 3 months |
| 10 | Sexual penetration of a child under 16[10] | 10 years’ imprisonment | 2 years and 6 months’ imprisonment | 3 months |
| 11 | Indecent act… | |||
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- AGLC
- Clifton v The King [2023] VSCA 232
- Case
- [2023] VSCA 232
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the trial judge had erred by not sufficiently taking into account Clifton's intellectual disability when determining his sentence, and whether the sentence imposed was manifestly excessive. The court needed to assess if the principles for sentencing offenders with intellectual disabilities, as established in Muldrock v The Queen, were correctly applied and if the sentence reflected an appropriate balance between punishment, deterrence, and rehabilitation.
The court found that the trial judge had not adequately considered the impact of Clifton's intellectual disability on his culpability and moral blameworthiness, thus failing to apply the principles in Muldrock v The Queen correctly. Additionally, the court held that the sentence was manifestly excessive, as it did not sufficiently reflect the mitigating factor of Clifton's disability. The court granted leave to appeal the sentence, highlighting the need for a reassessment that appropriately accounts for Clifton's intellectual disability. This decision underscores the importance of correctly applying sentencing principles in cases involving offenders with intellectual disabilities.
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