R v Clancy

Case [2013] SASCFC 63

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CLANCY

[2013] SASCFC 63

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Kelly and The Honourable Justice Blue)

28 June 2013

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence. The appellant was convicted after trial of aggravated causing serious harm with intent to cause serious harm. She was was sentenced to 14 years' imprisonment with a non-parole period of 10 years' imprisonment. The appellant contends that the sentencing Judge proceeded on a basis of fact not proved beyond reasonable doubt.  The appellant contends that the sentence was manifestly excessive.

Held:  Appeal allowed.  The appellant's sentence is reduced to ten years' imprisonment with a non-parole period of six years' imprisonment (at [80]).

Per Sulan and Blue JJ (Kelly J dissenting): 

1.   The factual basis on which the Judge proceeded to sentence included two findings which cannot be supported having regard to the evidence (at [39]-[53]).

2.    Those errors alone are not sufficient to interfere with the sentence (at [59]).

3.    The starting point imposed by the Judge is similar to that imposed for serious assaults involving multiple offending. The starting point was manifestly excessive (at [76]-[79]).

Criminal Law Consolidation Act 1935 (SA) s 23(1), referred to.
R v Stehbens (1976) 14 SASR 240; Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; R v McNamara [2009] SASC 227; (2009) 105 SASR 38; R v Wilkinson [2008] SASC 172; (2008) 101 SASR 21; R v Saunders [2011] SASCFC 37; (2011) 210 A Crim R 1; R v Martin [2007] SASC 336; (2007) 99 SASR 213; R v Campbell [2012] SASCFC 44, considered.

R v CLANCY
[2013] SASCFC 63

Court of Criminal Appeal:       Sulan, Kelly and Blue JJ

  1. SULAN AND BLUE JJ:                 This is an appeal against sentence. The defendant and appellant, Tanya Michelle Clancy, pleaded not guilty to the offence of aggravated causing serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA). The aggravating features of the offence were that an offensive weapon was used, namely a chair, and that the offence was committed in company with one or more other persons.

  2. Ms Clancy was convicted by a jury after a trial in the Supreme Court. She was sentenced to 14 years’ imprisonment with a non-parole period of 10 years.

  3. Ms Clancy appeals against the sentence on the ground that it is manifestly excessive. It is further contended that the sentencing Judge erred in proceeding on a basis of fact which was not proved beyond reasonable doubt.

    Background

  4. On 29 July 2011, Ms Clancy was at her house at Elizabeth Park. She was there with the victim of the assault, Ms…

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AGLC
R v Clancy [2013] SASCFC 63
Case
[2013] SASCFC 63
Decision Date

CaseChat Overview and Summary

Ms Clancy appealed against a sentence imposed by a sentencing Judge, contending that it was manifestly excessive and that the Judge erred in proceeding on an unproven factual basis. The appeal was heard by Sulan, Kelly, and Blue JJ.

The Court was required to determine whether the sentencing Judge erred in his findings of fact and whether the sentence imposed was manifestly excessive. Specifically, the Court considered whether two findings made by the sentencing Judge were supported by the evidence and, if not, whether these errors alone warranted interference with the sentence. The Court also had to assess whether the sentencing Judge’s starting point for the sentence was appropriate, particularly in comparison to sentences for similar serious assaults involving multiple offenders.

Per Sulan and Blue JJ, the appeal was allowed because the factual basis upon which the sentencing Judge proceeded contained two findings not supported by the evidence. However, these errors were not considered sufficient, in themselves, to justify interfering with the sentence. The majority found that the sentencing Judge’s starting point was manifestly excessive, noting its similarity to starting points for serious assaults involving multiple offenders. Kelly J dissented.

The Court reduced Ms Clancy's sentence to ten years' imprisonment with a non-parole period of six years' imprisonment.

Orders

Orders of the court

Held: Appeal allowed. The appellant's sentence is reduced to ten years' imprisonment with a non-parole period of six years' imprisonment (at [80]).

Per Sulan and Blue JJ (Kelly J dissenting):

1. The factual basis on which the Judge proceeded to sentence included two findings which cannot be supported having regard to the evidence (at [39]-[53]).

2. Those errors alone are not sufficient to interfere with the sentence (at [59]).

3. The starting point imposed by the Judge is similar to that imposed for serious assaults involving multiple offending. The starting point was manifestly excessive (at [76]-[79]).

Background

Background to the litigation

Ms Clancy appeals against the sentence on the ground that it is manifestly excessive. It is further contended that the sentencing Judge erred in proceeding on a basis of fact which was not proved beyond reasonable doubt. Background On 29 July 2011, Ms Clancy was at her house at Elizabeth Park. She was there with the victim of the assault, Ms Christine Le. Ms Le and Ms Clancy were acquaintances. They were consuming alcohol. Whilst at the house, Ms Clancy was visited by her niece, Shyanna, and her friends who had come there to get cigarettes. Ms Clancy knew Craig, one of Shyanna’s friends. Both Shyanna and Craig were 13 years old. Also present at Ms Clancy’s house was Sammy-Jo aged 11, Stacie (Sammy-Jo’s elder sister) aged 15, and Irvine aged 16. The youths are identified by first name only. At one point during the evening, Ms Clancy and Craig left the house on foot to purchase cigarettes. Craig told Ms Clancy that on a previous occasion Ms Le had attempted to strangle him. Upon returning to the house, Ms Clancy attacked Ms Le by kicking and punching her. A chair was used during the assault. The attack commenced in the kitchen. Ms Le was then dragged into the lounge room where the assault upon her continued. Craig and Shayanna then kicked and punched Ms Le, after seeking Ms Clancy’s permission to join in. Ms Le became unconscious during the attack. Ms Clancy collected a shopping trolley from outside the house and brought it into the lounge room. With the assistance of Shyanna, Craig and Irvine, Ms Clancy placed Ms Le into the trolley on her back with her legs over her head. Ms Clancy and Craig then pushed the trolley through the backyard to a vacant house next door. Ms Clancy placed a piece of plywood over the top of the trolley and returned to her home. As a result of an anonymous call to SA Ambulance, Ms Le was found by paramedics in the trolley. She was curled on her side in a foetal position. She was severely bruised on the left side of her face and had dried blood around her nose, mouth, right ear and left side of her head. Paramedics reported that she was making mumbling noises and was only able to tell them her name. Ms Le was taken to the Royal Adelaide Hospital and placed on a ventilator. She suffered brain damage, multiple rib fractures, collapsed lungs and facial fractures. She was admitted to the intensive care unit for two days and then transferred to a ward, where she remained for approximately three weeks. Due to the traumatic brain injury she suffered, Ms Le spent a further seven weeks in the brain rehabilitation unit at Hampstead Rehabilitation Centre, improving her orientation, memory, speech and limb weakness. She also needed assistance with activities for daily living, including walking. Ms Le died before Ms Clancy’s trial. Her death was unrelated to the assault. Sentencing Judge’s remarks In sentencing Ms Clancy, the Judge considered the circumstances of the offending. The Judge concluded:Upon returning back to your house, you went up to Ms Le and hit her in the head. At the time of this hit, witnesses heard you say something along the lines of ‘This is for hitting my nephew Craig’. Ms Le fell to the ground. You then grabbed a chair that was in the kitchen and put the chair to Ms Le’s throat. You then started jumping on the chair and pushing it into Ms Le’s throat. You began to get angrier. You dragged Ms Le into the lounge room and began kicking and punching her in the head.Shyanna and Craig were encouraging you by saying ‘Bash her, Auntie’. Your niece asked you if she could join in and you said ‘Go for it’. Shyanna and Craig also started kicking, punching and jumping on Ms Le in the head. Whilst Shyanna and Craig were bashing Ms Le in the head, you were kicking her around the stomach area.The witnesses describe Ms Le bleeding from the nose and right ear, and her eyes rolling back into her head. They said Ms Le was crying and you told her to shut up. She eventually became unconscious.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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