Clifton v The King - [2023] VSCA 232

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…

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 [2023] VSCA 232
Case: [2023] VSCA 232
Decision Date: 22 September 2023

CaseChat Overview and Summary

The case of Clifton v The King involved an individual, Clifton, who was convicted of multiple sexual offences against a child under the age of 16. The totality of his crimes led to a sentence of 8 years and 10 months, with a non-parole period of 5 years and 10 months. Clifton, who has an intellectual disability, contested the severity of his sentence and sought leave to appeal. The High Court of Australia was tasked with determining whether there was an error in the sentencing process that failed to properly consider the principles outlined in Muldrock v The Queen and whether the sentence was manifestly excessive.

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.

Orders