R v Cliff (No 6)

Case •

[2018] NSWSC 587

•

04 May 2018

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: R v Cliff (No 6) [2018] NSWSC 587
Hearing dates: 2 May 2018
Date of orders: 04 May 2018
Decision date: 04 May 2018
Jurisdiction:Common Law
Before: Campbell J
Decision:

See from Paragraph 103 below.

Catchwords: CRIMINAL LAW – Sentence - Murder - child under the law - objective seriousness of offending - intoxication - provocation - s 166 certificate - aggravated break and enter and steal - plea of guilt consciousness of guilt - mitigating factors - offensive weapon charge - subjective factors - family impact statements - aggregate sentence - totality - self-induced intoxication - remorse - special circumstances – concurrence - overall criminality
Legislation Cited: Crimes Act 1900 (NSW) ss 19A, 23, 23A, 33B, 112; 154A
Crimes (High Risk Offenders) Act 2006 (NSW);
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21, 21A, 44, 45;
Criminal Procedure Act 1986 (NSW) s 166;
Children (Criminal Proceedings) Act 1987 (NSW) ss 15A, 15E
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37;
Cheung v The Queen (2001) 209 CLR 1;
Muldroch v The Queen (2011) 244 CLR 120; [2011] HCA 39;
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38;
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57;
R v Bolt (2001) 126 A Crim R 284; [2001] NSWCCA 487;
R v Isaacs (1997) 41 NSWLR 374;
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA
Category:Sentence
Parties: Regina (Crown)
Bryce Cliff (Accused)
Representation:

Counsel:
M Pincott (Crown)
E Wilson SC (Accused)

  Solicitor:
M McFarlane (Office Director of Public Prosecutions)
(Crown)
A Van der Velde (Matouk Joyner Lawyers)
(Accused)
File Number(s): 2016/175505

Judgment

  1. The offender is to be sentenced for the murder of James Cleghorn on 7 June 2016 in his home at 5 Acacia Street, Kooringal here in Wagga Wagga, New South Wales. He is also to be sentenced for an offence of breaking and entering the home of Ms Suzanne Lipu in Tichborne Crescent, Kooringal and committing a serious indictable offence therein, being larceny in circumstances of aggravation. The larceny involved the theft of Ms Lipu’s car keys in an attempt to make good his escape from Wagga Wagga to evade arrest. The circumstances of aggravation relevant to this second offence involved the use of physical violence on Ms Lipu.

  2. There are other related offences that I am required to deal with which were listed on a certificate referred to the Court under s 166 Criminal Procedure Act 1986 (NSW) when the offender was committed to this Court for trial by the Local Court. My powers in those matters are limited to those exercisable by the Local Court. The first s 166 offence consists of actually stealing Ms Lipu’s car, a Toyota Camry Altise. The second s 166 offence involves an allegation that he used an offensive weapon with intent to commit an indictable offence, namely assault occasioning actual bodily harm on Mr Wade Garland, an important witness in the proceedings. This occurred in the immediate aftermath of the killing.

  3. After determination of pre-trial issues by me on 5 and 6 February 2018, the offender was arraigned on the murder charge in the presence of the jury panel on 7 February 2018 and entered a plea of not guilty of murder but guilty of manslaughter. This plea was not accepted by the Crown in discharge of the indictment. The jury was accordingly empanelled to try the offender for murder. The Crown case closed late in the afternoon on 19 February 2018. The offender chose to give evidence, which was taken on the 19 and 20 February. After, legal argument, addresses and summing up, the jury retired to consider its verdict at 10:20 am on Monday, 26 February 2018. The alternative of manslaughter was left for the jury’s consideration on two possible bases. The first, was the partial defence of extreme provocation under s 23 Crimes Act 1900 (NSW) (“Crimes Act”), which I ruled fairly arose on the evidence of the accused. The second was whether the jury was satisfied beyond reasonable doubt that when the offender killed Mr Cleghorn, he acted with the actual specific intent necessary for murder. This question arose primarily in the context of the accused’s intoxication. The jury returned a verdict of guilty of murder at about 2:16 pm that day. His conviction was duly recorded.

  4. The offender had indicated his willingness to plead guilty to the break, enter and steal count before his committal by the Local Court on 3 May 2017. When first arraigned in this Court on 2 June 2017 he adhered to that position and pleaded guilty. He has also pleaded guilty to the first s 166 offence, but not guilty of the second.

  5. Accordingly, it is necessary for me to sentence the offender for the murder of James, the break, enter and steal involving Ms Lipu, and the related car stealing matter. I am also required to decide whether the offender is guilty or not guilty of the offensive weapon charge on the evidence lead at the Trial, there being no further evidence in relation to that matter led in the proceedings on sentence. If I find him guilty of that offence, I will proceed immediately to sentence him for that matter as well.

General principles

  1. Following the trial, I am required to find the facts relevant to my task on the basis of the evidence lead at the Trial and any evidence led in proceedings on sentence. Although the jury, by its verdict have decided the facts necessary to establish the offender’s guilt of the murder of Mr Cleghorn beyond reasonable doubt, I am required to make my own findings of fact for the purpose of determining matters relevant to sentence, including the important considerations of the objective seriousness of the offending, and the offender’s moral culpability. It is not my task to attempt to define the basis upon which the jury made its decision. I am required by law to make my own determination, subject to two principle constraints: Cheung v The Queen (2001) 209 CLR 1 at [14] citing R v Isaacs (1997) 41 NSWLR 374 at 377 - 378 (per Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ). The first constraint is that I am bound by the jury’s verdict and the findings I make must be consistent with it. The second is that the facts informing my decision about the seriousness of the offending and the offender’s culpability need to be established to my actual satisfaction beyond reasonable doubt. It is important for me to bear in mind that I am not required to sentence the offender on the most benign version available on the evidence, provided, as I have said that the facts underpinning the offender’s culpability are proved beyond reasonable doubt.

  2. By the same token, it is necessary for me to make my own decision about facts which may operate in mitigation of the severity of a sentence. However, these facts need only be established to my satisfaction according to the less stringent civil standard of the balance of probabilities. That is to say, it is enough if I am satisfied that the matters put forward in mitigation of sentence are more likely than not: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] - [28]. As there are facts relevant to sentencing which remain in dispute, these principles are not of theoretical interest only. They will have an important practical effect in the decision I make.

  3. When, as here, the offender is being sentenced for more than one offence, the appropriate sentence must be fixed for each offence before consideration of the structure of the sentence, which includes questions of accumulation, concurrence and totality. It is important in this regard not to punish the offender twice for the same criminality: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at 624. But the total sentence must reflect, and be proportionate to, the overall criminality of all of the offending conduct.

  4. I need also mention, as was discussed during the Trial, the provisions of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) because when he was killed by the offender Mr Cleghorn, whom I shall hereafter refer to as “James”, not meaning him any disrespect, was aged 16 years and 6 months, making him a child at law. Generally, it is contrary to law for the name of a child connected with criminal proceedings to be broadcast in a way which discloses that connection. This prohibition does not apply in James’ case because both his mother and his father have previously given consent, as I ruled during the Trial, in compliance with the requirements of s 15E of the Act.

The issues

  1. Many of the facts, matters and circumstances relevant to sentencing are not in dispute. There is for instance no dispute about how James met his death. It is well to record my finding about this now. In simple terms James died from stab wounds deliberately inflicted upon him by the offender. There is no dispute that when inflicting those wounds, the offender had the actual specific intent of inflicting really serious personal injury. The Crown accepted that this was the relevant mental element for this offending and it was left to the jury on that basis. The Crown’s concession was based upon the consideration that the offender’s attack on James was not premeditated, although it was determined and frenzied, or at least furious as Mr Wilson of learned Senior Counsel accepted. However, the evidence also clearly established that James was able to escape from the offender’s clutches and seek refuge in Mr Garland’s home downstairs at 5 Acacia Street. The evidence also clearly established, and it was common ground, that the offender did not know or realise that he killed James until he was informed of the fatal consequences of his actions by police some hours later that night. These circumstances made it unlikely that the offender stabbed James with the actual specific intention of killing him.

  2. According to the undisputed evidence of Dr Allan Cala, Forensic Pathologist, who carried out the autopsy on James, the offender inflicted 47 separate injuries over various parts of James’ body. Not all were inflicted with the knife. There were a number of blunt force trauma injuries including a blow to the top of James’ head consistent with, at least, the application of significant force (543.25T). Of around 34 wounds inflicted with the knife about 20 were defensive wounds to James’ arms, hands and fingers. Dr Cala defined “defence injuries” as “a term used to describe a situation where a victim tries to thwart or parry blows rendered by … a knife, and so tries to grab the knife off an offender and, in so doing, can cause the injuries” (544.45T). From my inspection of the autopsy photographs which were in evidence, some of these defensive injuries were themselves quite severe.

  3. On Dr Cala’s evidence there was but one fatal knife wound which went into the space around James’ heart. The knife penetrated his skin, his left lung, his thymus gland overlying the heart, through the pericardium space and into the heart to an overall depth of about 5 centimetres (538.50 - 539.5T). There is no doubt that this wound was caused by the kitchen knife recovered at the scene and tendered as Exhibit “B” (545.15T). This wound flooded the space around the heart and his chest area generally with blood. Dr Cala estimated James lost about a quarter of his total blood supply internally as a result of this single stab wound. This comparatively rapid blood loss starved the heart of blood, causing it to stop beating, followed by immediate death. In this case that occurred after James had fled downstairs. The infliction of that fatal wound would have required the application of “moderate to possibly severe force” in the words of Dr Cala (541.13T).

The factual findings

  1. For a number of years prior to about the end of 2013, the offender had been in a domestic relationship with James’ older sister, Suchada Paiboonbudsrakam, whom I will refer to as “Proy” as she had been in the Trial. In the latter part of their relationship they bought a house together in a suburb of Melbourne as their residence. Despite his evidence to the contrary, the breakdown of their relationship and their separation were most unhappy circumstances for the offender. Initially he was pleased to take the home, subject to a mortgage with his mother’s help, as his share of the property settlement. His mother’s help enabled him to reduce the mortgage to manageable levels while he was working. Unfortunately he was forced to sell the house in disadvantageous circumstances and at a net loss when he lost his job due to failing a mandatory, random drug test at work.

  2. From an email he wrote to Proy in June of either 2014 or 2015, it is obvious that he felt betrayed by Proy forming a new relationship and regarded her as having ruined his life. Although the offender was adamant when cross-examined on a printout of the email that he wrote it in June 2014, I am satisfied it was written in June 2015 about 12 months before he murdered James. It was put to him in cross-examination that it was written in June 2015, which matter he vehemently denied. But from the affidavit read in proceedings in Sentence sworn by his mother Ms Michelle Hill on 18 April 2018, I infer the email must have been written in 2015. Ms Hill’s affidavit is written in careful detail. She says that the offender took over the title to the property in 2014. In her affidavit she described the offender’s decline after the separation and states:

“In 2015, (the offender) sold, (the house) and started making plans to move to Queensland”.

Given her concern for her son and her close involvement in his affairs to assist him, I feel confident her recall is accurate. The matter is important because it undermines the offender’s account that by June 2016 he had long reconciled himself to the separation from Proy and had overcome the devastation he had once felt. According to his June email, the Melbourne home was sold “on 21 April” (827.15T). This is consistent with the chronology provided by the offender’s mother and increases the probability that the email was written in June 2015, not 2014. The offender agreed he was angry when he wrote the email (828.20T).

  1. There was a body of intriguing evidence led at the Trial as to the arrangements the offender made to come to Wagga Wagga on 7 June 2016. His journal was recovered among personal possessions, apparently discarded along Acacia Street as he ran away from the scene of the crime while being pursued by Mr Garland and his dog, Soap. Forensic examination of the offender’s journal provided convincing evidence that he had made somewhat careful plans for his journey. He recorded the times of trains he intended to catch and the operating hours of two restaurants in Wagga Wagga that were associated with James’ family. There were also other entries which raised suggestions of a “cover story” for his presence in Wagga Wagga, apparently relating to a car breakdown. The offender’s version was that he planned to come to Wagga Wagga to speak to James’ father, Mr Glenn Cleghorn, about an issue concerning the transfer of registration of a car the offender had sold to Mr Cleghorn sometime previously. The offender’s version is corroborated by his mother, Ms Hill in her affidavit (at par 50). She says that after the offender had moved to Wollongong to live with her in May of 2016 he spoke to her about that matter, but she discouraged him from doing anything about it. Since his arrest he has also spoken to his mother about the matter of the car registration as the reason for him wishing to see Mr Cleghorn (Affidavit, Michelle Hill, 18 April 2018 at par 57).

  2. I have had the advantage of seeing and hearing the offender give evidence on this topic and the extensive cross-examination of him in relation to it by the Crown Prosecutor. I find myself unable to accept his evidence about it, notwithstanding his mother’s corroboration. I appreciate that Ms Hill was not cross-examined on her affidavit. However, acceptance of her account as sincere is not inconsistent with an inability to accept the offender’s account. After all, she is only relaying what her son told her. That he discussed this topic with her before coming to Wagga Wagga is a factor which may lend weight to his evidence. On the other hand, I found the account implausible and his responses to cross-examination about it unconvincing. I am still of that view having had the benefit of his mother’s evidence, and the expert evidence tendered in the proceedings on sentence in relation to his mental state to which I will refer later.

  3. I accept that he recorded the business hours of the restaurants because he wished to avoid some members of the extended Cleghorn family, including James’ mother, Ms Nonguch Boonchu-Cleghorn, whom he felt had never considered him good enough for her daughter, Proy.

  4. Having rejected the offender’s explanation it remains the case that there is no other clearly convincing explanation for his plans, except that in some general way it had something to do with his lingering resentment toward Proy. Part of which may be resentment that Proy had bought the house at Acacia Street, Kooringal for her family to live in. She had bought the house at Kooringal for her family to live in. But the evidence does not permit any definite finding.

  5. After his arrival in Wagga Wagga in the early afternoon his movements are recorded on CCTV footage and pieced together by calls he made to taxi companies on his mobile phone. He certainly walked past each of the restaurants, he says to see if he could meet Mr Cleghorn there. He was unaware that Mr Cleghorn and Ms Boonchu-Cleghorn had separated and that Mr Cleghorn had moved away from Wagga Wagga. Given that I have not been persuaded by his explanation, I think this too is unlikely and although there is no clear evidence one way or the other, my impression is that he may have been satisfying himself that the business were still in operation. Overall, my impression is that he was trying to avoid the family rather than meet up with them.

  6. It does seem clear that he intended to attend the home that evening. Although I cannot make findings beyond reasonable doubt about this, he probably expected no one would be at home at that time because the whole family usually worked at the restaurant. As it happened James had been home from school that day due to illness and his mother did not take him to work that night. As the evidence is, I am left in the position, where his true motivation for coming to Wagga Wagga remains a mystery, not dispelled by the evidence. But some things can be said with certainty.

  7. He obviously intended to go to 5 Acacia Street after dark when the family would normally be at work and the premises vacant. However, there is no evidence that he was equipped with any housebreaking implements. A balaclava fashioned as a mask and a pair of gloves in the backpack were said to be always kept there as he had formerly used them when riding his motorbike in Melbourne. He was not challenged about that evidence. It is also certain that he was not then intent on killing James or anyone else. He brought no weapon with him. The knife with which he attacked James with was a knife undoubtedly obtained from the kitchen at 5 Acacia Street. As I have said, he took positive steps to avoid running into members of the family.

  8. I think I can also say with certainty that when he attended the premises at about 7:00 pm he was heavily intoxicated by his consumption of a combination of the notorious drug methylamphetamine known as ice and a sedative known as ketamine.

  9. I will not detail all of that evidence as the issue is no longer controversial. He gave evidence that he had smoked over a gram of ice using a glass pipe that was found amongst his possessions. A quantity of ice was also recovered (see Exhibit “F”). He twice administered the drug to himself after his arrival in Wagga Wagga. Likewise he had consumed the ketamine which he said induces “a bit of a drunk … feeling” (795.15T). He could still feel the effects of his drug consumption when he arrived in Acacia Street. In cross-examination he described himself “as drug affected” (870.45T). He also said, “[y]ou still know what you’re doing when you’re on ice, yes” (871.15T). The evidence of the lay witnesses, Mr Colin Everett, Ms Belinda Schreiber and in particular Ms Lipu strongly suggested to me that he presented as a person badly affected by drugs. Moreover, his appearance and speech on the video taken at the time of his arrest (Exhibit “AC”) compared to his sober presentation in the witness box leads me to believe he was still badly affected at the time of his arrest some hours after the murder.

  1. When the offender arrived at 5 Acacia Street James was home alone. He admitted the offender without question and provided a towel for the offender to dry himself from the rain. He also allowed him to recharge his mobile phone. Apparently they were pleased to see each other and James assisted the offender to look up the train timetable for his return to Wollongong. The offender’s journal did not contain any entries of train times for his return journey. It took a little time both in chief and in cross-examination to tease out what the offender said happened to cause him to attack James. However, on my consideration of the whole of the evidence, I am satisfied that the offender raised in some way the topic of Proy. It seems the mood deteriorated, according to the offender, after he had been offensive about Proy and James’ mother. James then said something about the apparently advantageous property settlement that the offender had received. More than once the offender had described this as James throwing it in his face. They stood up and the offender struck James with sufficient force with the back of his right hand around James’ mouth to draw blood and knock him down. There was a significant height, weight and age disparity between the two. The offender described himself as about 6 foot 4 inches, then weighing about 85 kilograms and aged 29. James was 16 and 6 months, as I have said, of about 5 foot 8 inches in height, weighing 61 kilograms. While it is difficult to accept at face value that a 16 year old would descend into the minutiae of his sister’s property settlement with the offender, I cannot say it did not happen. I am prepared to accept that James said something which touched a raw nerve, if I may use that metaphor in the offender’s bitter and drug addled psyche, causing him to lash out as I have described.

  2. What happened next is the subject of dispute. It is necessary for me to resolve the dispute because it goes to both the question of provocation as a mitigating factor and the offensive weapon charge.

  3. The offender says that after striking James he went out onto the balcony to smoke a cigarette. His account is that he was screaming out to James, who had remained inside, to find him a time for a train so he could leave. That he was screaming is an important part of his version because he says that while he was barking orders at James, Mr Garland emerged on the scene with his dog Soap. The inference I am asked to draw is that the offender’s loud voice alerted Mr Garland to his presence. The offender says that Mr Garland aggressively accused him of interfering with the supply of services to his home. Feeling intimidated the accused re-entered the home whereupon he was hit from behind by James with sufficient force to wind him and cause injury to his ribs. James then jumped on his back knocking him down and in the struggle which then ensured the offender lost control, obtained the knife from the kitchen and attacked James with it. The offender said, James tried to wrestle the knife from him.

  4. Mr Garland’s account was quite different. On his version, he came out of his downstairs flat to investigate only when he heard what might be described as a blood curdling scream from upstairs. He had been home from work in his business as a plasterer from about 4:30 pm and had had a few beers with his work mate before 6:00 pm. He then was in the process of preparing dinner for himself and Soap, listening to music of a style with which I am unfamiliar streamed through his phone to his radio. Between songs he heard the scream and went outside to investigate. When he was near the bottom of the stairs from the veranda James, whom he initially mistook for his brother, Pat, ran past him in high anxiety saying “he’s trying to kill me”. He went up the stairs. Soap remained below as he’d been trained to do. There was then a confrontation with the offender who, as Mr Garland told the police, was armed with “a stabbing implement”. I interpolate that this is the alleged offensive weapon. There was much proper cross-examination about the various versions Mr Garland had given in relation to this stabbing implement. Sometimes he referred to a large knife, which he said was “a pretty serious thing” (244.5T). At other times he described it “mostly as a screwdriver” (244.20T). I interpolate crime scene officers recovered not only Exhibit “B”, but also a large shafted screwdriver which was located on the kitchen bench at 5 Acacia Street during the course of their investigations.

  5. Mr Garland described the offender as being armed with the stabbing implement and a belt. He retreated to the ground level hiding behind a bush, and arming himself with Soap’s heavy dog chain with which he attacked the offender when he in turn came downstairs. Following his attack on the offender, he took flight down Acacia Street with Mr Garland and Soap in pursuit. The offender was struck at least twice with the dog chain.

  6. There are problems with Mr Garland as a witness in some respects. First, he was clearly intoxicated which was likely to have affected his perception. Secondly, he gave somewhat different account so far as the details are concerned to the police on the night in question and some weeks later when he conducted what is referred to as a walkthrough which was audio visually recorded. Thirdly, if I may say so, he is a man of a particular personality type. He was extremely discursive, anything but taciturn, and had a strangely stilted and formal manner of speech. For all those difficulties with his evidence, I formed the impression that in substance, if not in the detail, his account was reliable, particularly as to the timing of his emergence to investigate what was happening upstairs.

  7. I should also say the accused did not attribute his rib injury to an assault by James or anyone else when the police took him to the hospital later that night. The account was more consistent with an injury received during his subsequent flight.

  8. I was left firmly with the view that the offender’s account of going out to the balcony for a smoke to cool down was an invention. It was a necessary ingredient of his unreliable account to provide James with the opportunity, on his version, to hide lying in wait so he could attack the much larger, older offender from behind. I am satisfied beyond reasonable doubt that that did not occur. I am satisfied beyond reasonable doubt that James did not in any way attack or injury the offender on 7 June 2016.

  9. Looking at it from the perspective of mitigation, I am not persuaded on the balance of probabilities that James in any way by physical act provoked the offender causing him to so lose control that he formed the intent to inflict really serious bodily injury on James. I am prepared to accept that their initially amicable conversation did deteriorate when the offender raised the topic of Proy and his relationship with her. I am prepared to accept that in his innocence James may have said something which touched that raw nerve I have referred to. The offender took offence at whatever James had said, lost self-control and lashed out at him with the back of his hand. His ongoing resentment and bitterness about the breakdown of his relationship with Proy was greatly enhanced by the great disinhibition that was part and parcel of his ice-intoxication.

  10. Ms Anita Duffy, a very experienced Forensic Pathologist, whose report of 4 April 2018 was tendered as part of Exhibit “1” on the proceedings on sentence, described the process very clearly (at page 12) in the following way:

“It is thought that due to his drug use and sleep deprivation, his thinking was disturbed, his judgment affected and he was unable to envision the consequences of his actions when in the state of intense arousal and anxiety. He was not able to exercise logical reasoning or apply controls after the argument escalated ….”

She described how his “extreme interpersonal sensitivity and dysregulation” combined with his substance abuse “which contributes to both the cognitive distortions and disinhibition associated with substance of abuse of alcohol or stimulants”. As I understand her evidence, in this mental state there was an imbalance between the control provided by the frontal cortex of the brain and the more basal reactions triggered by its limbic regions.

  1. What followed from this was a frenzied and uncontrolled attack upon James by the offender with the knife that he had obtained from the kitchen. From the evidence of Dr Cala and importantly of Sergeant Christian Cox, the expert blood pattern analyst, I am satisfied that James desperately tried to fight the offender off by using his arms in an attempt to parry the offenders repeated blows with the knife and his fists. That James attempted to get away is evident from the extensive blood staining throughout the dining room, kitchen, hallway and into the foyer. The foyer area in particular according to Sergeant Cox displayed patterning consistent with some toing and froing towards the front door and back again, suggesting James attempting to get out and the offender attempting to stop him. The number of blows and stab wounds of various types suggest great determination on the part of the offender to do James real injury. This probably bespeaks the loss of control to which the offender amply admitted and which I find was born of his bitterness and the disinhibition due to his self-induced intoxication. James eventually was able to evade the offender and escape his clutches but tragically not before the offender had inflicted the fatal wound to his heart.

  2. There was a good deal of evidence at the Trial about the offender’s post-offence conduct. The relevance of this is largely what it says about the offender’s “consciousness of guilt” as it is explained in legal terms. Given that the jury were satisfied beyond reasonable doubt of the offender’s guilt of murder, it is unnecessary for me to detail this evidence as its utility has effectively merged in the jury’s verdict. But it is appropriate for me to say a little about it for two reasons. First, it is appropriate to acknowledge the assistance that the various householders affected by the offender’s flight rendered to police in the investigation. I must say I was impressed by the resourcefulness and resilience of the ordinary people who gave evidence at the Trial in relation to this aspect of the case. In particular I was impressed by Mr Garland, notwithstanding his idiosyncrasies, Mr Paul Piercy, Mr Everett and Ms Schreiber who I thought showed composure in dealing with the offender in what must have been for them trying circumstances of an oddly behaving stranger showing up at their relatively remotely located homes late at night. The second reason is to deal with the facts concerning the break, enter and steal offence.

  3. I am indebted to Mr Wilson of Senior Counsel for his succinct summary of this evidence. During the pursuit of him by Mr Garland and Soap, the offender ran along Acacia Street before diverting into various yards, climbing fences and gates during his flight. He made his way through 18 Acacia Street, 77 Fay Avenue, 22 Edney Street, 17 The Boulevarde, 15 The Boulevarde, 19 The Boulevarde and then into the yard of Ms Lipu’s residence at 17 Tichborne Crescent. Mr Wilson has summarised it in these terms:

“A home invasion took place 17 Tichborne Crescent, where a Toyota Camry motor vehicle was stolen from the witness Suzanne Lipu. The offender kicked a back door in to gain entry to her house while she was in bed. He told her that he had been stabbed. This took place after 8:20 pm. He shouted at her when demanding her car keys and to know where her car was and at one point dragged her from her bedroom through the lounge room and into the kitchen by taking hold of her hair. She operated the remote to raise the garage door and while this was happening slowly the offender kicked in a side door and tried to force the (garage) door upwards. This interfered with the progress of the door and Ms Lipu had to operate the remote to keep it going. The offender drove away in her car.”

  1. Ms Lipu said that she was very scared and her brain was working really fast trying to process everything, “yet the time was really slow” (377.20T). Despite her fear she tried to appear nice and helpful in the hope that the offender would go away. He continued to speak to her aggressively. She said (at 377.45T):

“I was terrified and like because of his manner that he was so angry so I was quite frightened at the time.”

She explained that the offender forcefully pulled her by the hair out of the bedroom, through the hall into the lounge room holding her hair tightly. He was moving fast and she had trouble keeping up with him. In his drug-addled condition, he couldn’t find the car and he was aggressively demanding her assistance. When he left with her car she rang the police.

  1. In cross-examination she agreed that she thought the offender was affected by drugs because of the way he was so worked up. She thought it was drugs because she could not smell alcohol on him.

  2. The offender drove away from Wagga Wagga through the Lake Albert region out to Big Springs where he clearly became lost, effectively driving around in circles. He tried to disguise the car by removing the number plates. However, he was eventually arrested by pursuing police in the yard of Ms Schreiber’s home.

Family Victim Impact Statements

  1. In every case of murder, the harm extends beyond the death of the immediate victim to the losses suffered by the victim’s family as a result of the death. I have had the benefit of receiving in evidence five family Victim Impact Statements. They were by Mr Glen Cleghorn, James’ father; Ms Jasmin Marvasti, James’ half-sister; Proy, James’ sister, Nongnuch, James’ mother and Mr Pat and Mrs Alyssa Paiboonbudsrakam, James’ brother and sister-in-law. Mr Cleghorn and Ms Marvasti read their statements from the witness box. I was impressed by their stoicism in sharing with the Court their palpable sense of loss. That the statements of the other family members were read by the Crown Prosecutor does not diminish the impact their statements made. Each of them was eloquently moving in its own way. I will quote from Proy’s statement:

“We will never be the same again, there is a hole inside us which could never be filled. No parents, family or friends should have to go through what we have been through. No parent should have to bury their child. We watched on as James’ friends graduated from school, getting their licence, turning 18, going onto university. James didn’t get a chance of that”.

  1. I fully understand what a powerful emotion grief is. In time one may become reconciled to it, but rarely does one get over it entirely. I listened attentively to each of the statements as they were read in Court and I have re-read them during the time taken for consideration of the case. Each of them is very moving and the suffering of each of the authors was not lost on me. I consider it appropriate to accede to the prosecutor’s application that I take the content of these statements into account, to assist in my determination of the punishment of the offender. This is done on the basis that the loss suffered by the family is an aspect of the harm done to the community by the offender’s offending.

  2. I offer the Court’s condolences to all of the family. I appreciate that all will be permanently affected by these crimes.

Subjective circumstances

  1. The offender was born on 11 May 1987 at Nepean Hospital, Penrith. He was accordingly 29 at the date of the offending and will turn 31 next week.

  2. His parents, Ms Hill and Mr Allan Cliff were, like the Cleghorn family, ordinary hardworking Australians. The offender is the eldest of four boys born to their marriage.

  3. The Cliff family moved from Sydney to Port Macquarie at about the time the offender started primary school. He had a normal upbringing in a hardworking family, playing soccer for a local club and participating in Nippers in the summer months.

  4. Regrettably his parents’ marriage broke down in about 2003 when the offender was starting year 11. His father left the family home commencing a new relationship. It is an obvious, even if regrettable, fact that divorce is a common enough occurrence in contemporary Australian society. However, there is no gainsaying that divorce has its effect upon children of the marriage. The offender at the age of 15 going on 16 was at what is always an impressionable age when that occurred.

  5. Soon after the breakdown of his parents’ marriage he left school to work with his father as an apprentice electrical technician. It should be said that upon Ms Duffy’s testing, despite the limitations of making such an assessment when the subject is in custody, the offender was found to be basically of low average intelligence. Perhaps in those circumstances he would not have been a candidate for University. The company for which he worked went into liquidation and for a brief time the offender returned to school. I infer it was not to his liking and he left school obtaining work installing billboards up and down the Pacific Highway.

  6. According to Dr Olav Nielssen who provided two reports dated 22 November 2017 and 13 March 2018 respectively, both forming part of Exhibit “1” on the proceedings on sentence, the offender commenced using cannabis from the age of 15 years old, which is about when his parents’ marriage broke down. He told Dr Nielssen “drugs have been a really bad problem for me”. According to the history recorded by Ms Duffy (at page 5) he was introduced to ice on his 24th birthday and quickly became hooked smoking “one point a day”, using it in conjunction with ketamine, from about 2014.

  7. He and Proy met in 2007, started dating and quickly became a couple. As I have recounted, the offender moved to Melbourne to be with Proy, who was a flight attendant. He worked as a baggage handler at the airport. I have already recounted something of the breakdown of their relationship.

  8. The offender had the usual bereavements in life, including: the loss of his favourite grandparent, his father’s mother in 2008; a very severe injury to his younger brother, Dylan, in 2009, whom fortunately made a remarkable recovery; the loss of his maternal grandmother in 2010; and the loss of his maternal grandfather in 2012. According to his mother, all of these events, I must say, as I would expect of anyone, had a significant effect upon the offender.

  9. The offender’s drug use was clearly a contributing factor to the breakdown of his relationship with Proy. It also led to the loss of his job when he failed a random drug test. This, in turn, as I have said led to the forced sale of his home. It is fair to say that one has the impression that his life spiralled downward from there. He moved into a new abusive relationship with a young woman who was also an habitual ice user, which did not last. According to Dr Nielssen, mental health issues arose after his separation from Proy. He had several hospital admissions because of anxiety and depression; an involuntary admission following a suicide attempt in Victoria; and a voluntary admission on the Gold Coast for depression.

  10. He continued to receive mental health treatment when living in Queensland with his father in the early part of 2016 including psychological counselling and referral to a psychiatrist. His General Practitioner prescribed anti-psychotic medication for sleep, even though there was no suggestion of psychotic illness. Dr Nielssen records having read an Acute Care Team Assessment from Queensland dated 3 May 2016, and of course, this is about one month before he murdered James, he was reported to have said that he doesn’t care about anything anymore, had considered suicide and was behaving recklessly. A trainee psychiatrist diagnosed an adjustment disorder and prescribed medication for him. The offender has been treated by psychiatrists engaged by Justice Health since he has been in custody on remand. There is no suggestion of psychosis, but depression and Post Traumatic Stress Disorder have been diagnosed.

  1. Upon mental state examination by Dr Nielssen he found no evidence of underlying mental illness. Dr Nielssen estimated the offender’s intelligence to be in the normal range, having regard to his educational and occupational attainment. This is probably not inconsistent with the more precise assessment made by Ms Duffy. Dr Nielssen diagnosed substance abuse disorder and a depressive illness, the latter being based upon the symptoms described by the offender from time to time. He did not regard the depressive illness as giving rise to an abnormality of mind at the time of the offending. He regarded him at the time as having been affected by intoxication with a large dose of methamphetamine. The offender’s continuous use of the drug over several days led to perceptual disturbance. In his second report, Dr Nielssen expressed the view that the offender may have been affected by a toxic delirium at the time of the offending. He said:

“The effects of toxic delirium, like that of severe intoxication, can be to misinterpret events, increase the perception of threat and increase the tendency to act on impulse without properly considering the potential consequences.”

This in turn could affect the capacity for self-control.

  1. I interpolate that that I am unable to give full effect to this view of Dr Nielssen given that it is implicit in the jury’s verdict that when the offender attacked James with a knife, he turned his mind to the possible consequences of the infliction of really serious bodily injury and indeed acted for the purpose of bringing that result about.

  2. A number of testimonials were read on the offender’s behalf. I have already referred to his mother’s affidavit. In her affidavit, Ms Hill records that her son has repeatedly expressed regret at the consequences of his action. She said he is “extremely ashamed”. His father acknowledged that his parents’ divorce “affected the whole family”, particularly the offender. He records the attempts he made to help his son following the breakdown of his relationship with Proy. He said that his son “has shown … since his offence how remorseful he is and how he wants to change his life to be a better man”. His younger brother, Ben, said he noticed a direct change in the offender after the relationship with Proy broke down. He refers to his mental health and his admissions to mental health institutions after the breakdown of that relationship. He associates the offending with his brother’s use of illicit drugs. He too confirmed that the offender is “very saddened and regrets the crime.”

  3. A cousin, Rebecca Savill refers to his normal upbringing, his apparent determination to look after his younger brothers after the breakdown of his parents’ marriage and his rapid decline after the breakdown of his relationship with Proy. Like the offender’s father she acknowledges the great hurt suffered by the Cleghorn family. She expresses the view that “he [the offender] is deeply remorseful for what he has done”.

  4. His Uncle, Mr Allan Hill OAM refers to the offenders “typical Australian childhood”. He felt that the breakup of his parents’ marriage came at a critical time in the offender’s development. He said that following the breakdown of his relationship with Proy the family “was extremely worried about [the offender’s] mental and physical wellbeing.” He noticed he became extremely depressed and talked of suicide. He understands that “two families and the wider community have suffered” through the offender’s actions. The offender has expressed his remorse to him.

  5. The mother of a school friend, Ms Marie Crew spoke of the offender’s respect, honesty and caring nature. She explained that while still living in Port Macquarie in 2004 the offender rendered assistance to her family after her husband was involved in a serious accident. She has kept in contact with him by mail during his incarceration on remand and states that she has found him to be “very remorseful”. She said that he “has become a broken man”. She regarded his offending as out of character because he had always displayed a caring nature previously.

  6. While in custody on remand, the offender has undertaken such rehabilitation courses as have been made available to him, particularly in relation to rehabilitation from his drug addiction. And this, of course, is a positive thing.

  7. The offender does have a prior criminal record, but I say at the outset it is not a very serious one. There are property offences committed in 2003 for which he received a bond in the Children’s Court. Street racing and driving with an illicit drug in his system, that occurred in October 2015 here in Wagga Wagga, and was the subject of evidence at the Trial, and for which he received a fine and a disqualification. And there are also two driving offences relating to his driving Ms Lipu’s car for which he was fined and received a further period of disqualification. There is offending in Victoria which I infer relates to his abusive relationship with his partner after the breakdown of his relationship with Proy. That offending included an offence of assault by kicking for which he received a community correction order of six months duration. It is not clear that he performed that service before he moved to Queensland.

  8. It may be, as Mr Wilson seemed to concede that the existence of this record deprives the offender of a call upon the Court’s leniency. However, I am not of the view that it is such as to require of itself an emphasis upon community protection in the sentence which I must impose.

  9. I acknowledge that the plea of guilty to manslaughter involves an admission that he killed James and an expression of a willingness to acknowledge a degree of responsibility.

  10. I record that when giving evidence (at 812.20T) the offender acknowledged the wrongfulness of his actions towards Ms Lipu and her property. He did seem prepared to accept full responsibility for that matter, and offered an express apology to her.

  11. I also accept that there was some facilitation of the course of justice in the way the proceedings were conducted on his behalf. Proper admissions were made and the Trial ran efficiently. I will take that into account to the admittedly limited degree appropriate in a case as serious as this.

Relative maximum sentences

  1. The maximum penalty for murder is imprisonment for life: s 19A Crimes Act. But the Court is empowered to impose a sentence of imprisonment for a specified term instead, where appropriate: s 21 Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”). Under s 61(1) of the Sentencing Act, a life sentence must be imposed on a person who is convicted of murder “if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.” Accepting that that decision is a matter for me alone, I record that the Crown have not submitted, serious as this case may be, that this is such a case.

  2. Murder is what is referred to as a standard non-parole period offence. The standard non-parole period represents the non-parole period for an offence that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle of the range of seriousness. The standard non-parole period for the murder of a person under 18 years of age is 25 years. Where a life sentence is imposed no non-parole period is applicable. The break enter offence, contrary to s 112(2) Crimes Act involving Ms Lipu is also a standard non-parole period offence. The maximum penalty is imprisonment for 20 years and the standard non-parole period, 5 years. As the s 166 offence of stealing Ms Lipu’s Camry is subject to the limits of the Local Court’s power, the maximum penalty available is a term of imprisonment of 2 years. The same is true of the charge involving the use of an offensive weapon.

  3. It is relevant for me to mention these matters because when determining the appropriate sentence for an offence, the Court is required to bear in mind where applicable the maximum penalty and any prescribed standard non-parole period as legislative guideposts indicating the seriousness with which the offence in question is regarded. Sentencing has many purposes, these are: ensuring adequate punishment; crime prevention by deterring the offender and others from committing similar offences; community protection; the promotion of the rehabilitation of the offender; making the offender accountable; denouncing his conduct; and recognising the harm done to the victims of the offending and the general community.

  4. The obligation of the Judge is to consider all of the facts, matters and circumstances relevant to the particular sentencing task at hand in what is referred to as an instinctive synthesis to arrive at the appropriate punishment for the offence and the offender.

  5. A central consideration is the objective seriousness of the offending at hand. This is important generally because the sentence passed must not be disproportionate either by undue sternness or undue leniency to the seriousness of the offending, objectively assessed. The objective seriousness of the offending is not the same as the moral culpability of the offender, although there will always be a significant overlap between the two concepts.

  6. The assessment of objective seriousness is particularly relevant for the offence of murder and other standard non-parole period offences. The High Court has said that meaningful content cannot be given to the concept of objective seriousness by taking into account the characteristics of the offender. Objective seriousness is to be assessed without reference to matters personal to the offender. It is determined wholly by reference to the nature of the offending: Muldroch v The Queen (2011) 244 CLR 120; [2011] HCA 39 at 132 [27].

  7. Moral culpability focuses upon the personal characteristics of the offender which may provide explanations for even serious offending, which suggests his culpability is not as great as the seriousness of the offending may suggest otherwise. A lesser moral culpability may reduce the relevance of specific and general deterrence in the case of a particular offender.

  8. In addition to these matters, other factors may be said to aggravate or mitigate the offending and sentence. Sometimes the same factor may point in both directions in this regard.

The offensive weapon charge

  1. Before turning to pass sentence, I think it convenient to deal with the offensive weapon charge. I have set out my findings in regard to the matter above. Although I have expressed a preference for the evidence of Mr Garland over that of the offender in relation to the sequence of events, it does not follow that I accept at face value everything that Mr Garland has said. I have explained why in some respects he was a difficult witness and his perceptions may not have been entirely reliable. The inconsistencies in his evidence about the nature and description of the “stabbing implement” he said the offender confronted him with caused me to doubt whether such an implement was ever brandished by the offender at Mr Garland. The fact that crime scene officers found a knife and a long shafted screwdriver within the upstairs residence reinforces that doubt. There is no objective evidence that they were ever outside. I am not persuaded that the offender had anything in his hands other than his belt when he emerged from the premises. I am not satisfied beyond reasonable doubt that he is guilty of the offence charged under s 33B(1)(a) of the Crimes Act. My verdict is not guilty and I dismiss the Court Attendance Notice in respect of that charge.

The offending against Ms Lipu

  1. I will now deal with the charges involving Ms Lipu, that is to say the aggravated break and enter charge and the car stealing charge. It is well to record that the larceny, the subject of the break and enter charge is the theft of Ms Lipu’s car keys which were taken by the offender from inside her dwelling. I am satisfied that the nature of that offending means that no punishment other than a sentence of imprisonment is appropriate. There is no other possible alternative, especially given the practical consideration that he will receive a long sentence for James’ murder.

  2. Normally when sentencing an offender to imprisonment, the Court is required to set a non-parole period for the sentence. A non-parole period is a minimum period that justice requires an offender to serve for the offending.

  3. I need not set a non-parole period under s 44 of the Sentencing Act for this offending if I decide this is appropriate for reasons that I consider sufficient: s 45 Sentencing Act. As I have said, it is obvious that subject to the need to partially accumulate this sentence and the murder sentence to give effect to the principle of totality, the sentence imposed for this offending will in no small measure be subsumed in the much greater sentence that I will impose for the murder. As this is a standard non-parole period offence, I bear in mind that I may only dispense with fixing a non-parole period if the term of the sentence is at least as long as the term of the non-parole period I would have set.

  4. In my judgment this case presents a reasonably significant example of s 112(2) offending. I accept that the consideration that the offender broke into Ms Lipu’s home is an element of the offence rather than an aggravating factor. In circumstances where she was trying to stay calm and co-operate from fear, the physical violence the offender used was entirely unnecessary and gratuitous. I would assess the objective seriousness at around the mid-range. His moral culpability is not reduced by his intoxication. The moral culpability of a desperate man intoxicated by the voluntary consumption of illicit drugs breaking into the house of a woman alone at home at night is also significant.

  5. At the same time, I bear in mind the offending was spontaneous and random and that his record is not one of a habitual offender of this type. By reason of his early plea of guilty, I am of the view that he is entitled to a 25 per cent discount in the sentence I would otherwise have passed for the utilitarian value of that plea. I take into account what I regard as his genuine expression of remorse under oath, which was not challenged in cross-examination and which is, in a sense corroborated by both the plea and the persons who have supported him by providing references. The courses he has already undertaken and the good community support he has suggests that he is unlikely to offend in this way again and that he has good prospects of rehabilitation.

  6. Taking all these matters into account, but for the plea of guilty I would have imposed a term of 4 years, instead I will impose a term of imprisonment of 3 years, for which I decline to fix a non-parole period for the reasons I have rehearsed.

  7. Turning to the car stealing offence, there is obviously a complete overlap between the criminality of that offending and the break, enter and steal offence. He has also pleaded guilty to that offence which I have taken into account in his favour. I will impose a fixed term of imprisonment of 12 months to be served concurrently with the term for the s 112(2) offence. In coming to this decision, I have borne in mind the maximum sentence that I can impose is one of 2 years.

Sentence for the murder of James Cleghorn

  1. I turn then to passing sentence for the murder of James Cleghorn. I repeat the maximum available penalty is life imprisonment and should I fix a specified term instead the standard non-parole period is 25 years. I wish to say at the outset that as bad as this offending is and as culpable as the offender may be, I have not been persuaded beyond reasonable doubt that his culpability in the commission of the offence is so extreme that the community interest as discussed in s 61 of the Sentencing Act can only be met through the imposition of a life sentence. I trust that my reasons for this will be made clear as I deal with the arguments advanced by the parties in relation to the sentence that should be passed.

  2. Mr Wilson has submitted that I should find that this particular offending lies below the mid-range of objective seriousness for the crime of murder involving a child. He relies upon six considerations: there was no premeditation; there was provocation, even if the issue of extreme provocation under s 23 of the Crimes Act was decided against him by the jury; there was no intention to kill; it is accepted that the level of violence does not assist the offender; James was not a child of tender years for whose care the offender was responsible; and for that last reason there was no abuse of any position of trust.

  3. The Crown argues that none of these matters considered individually or together supports the conclusion that I am asked to draw. Considerations such as a lack of premeditation, provocation and a want of intention to kill are offset by the frenzied nature of the attack, the degree of violence involved in the infliction of 47 separate injuries and the display of determination to go on with the attack in the face of James’ attempts to defend himself until the offender had stabbed him in the heart ought to be regarded as matters which increase the objective gravity of the offence. Moreover, reliance was placed upon R v Bolt (2001) 126 A Crim R 284; [2001] NSWCCA 487. In that case, an offender killed his mother in a frenzied attack by stabbing her repeatedly. He was found guilty of manslaughter only by reason of provocation. However, Sheller JA (at [1]) said:

“I do not think that violence such as that which caused and accompanied the victim’s death can be treated as other than a factor which increases the objective gravity of the offence. Had the [offender] with an intent to kill his mother stabbed her once and killed her the offence would objectively have been less serious [than the manslaughter]”.

  1. Dowd J agreed that the degree of violence increased the objective gravity of the offence. I accept that the degree of violence and the nature of the attack is a significant pointers to the level of objective seriousness. The nature of the attack is a factor which goes both to objective seriousness and moral culpability.

  2. On the findings of fact I have made, I am satisfied beyond reasonable doubt that nothing occurred which might properly be referred to as provocation. It is unclear what words were actually uttered by James. But even if one accepts that he cast up to the offender, the unfairness of the result in the property settlement, such could hardly amount to provocation at least without descent into a consideration of characteristics personal to the offender, which must be put to one side for present purposes. No ordinary person would have reacted as the offender did to the language he attributed to James. I accept that the considerations that James was not of tender years and that the offender owed him no position of trust are relevant considerations. But of course, had those matters been otherwise, the level of objective seriousness would doubtless have been increased.

  3. For the reasons I have stated I accept the Crown’s argument and I would assess the level of objective seriousness at the mid-range for murder of a person under the age of 18.

  4. Turning to the question of moral culpability there are on my assessment of the evidence two factors which are central to understanding how this dreadful event came about. They are the offender’s ongoing bitterness and resentment arising out of the breakdown of his relationship with Proy and the effects of his self-induced intoxication with ice and ketamine on 7 June 2016 which was a function of his ongoing substance abuse. It may be that the entrenched bitterness and resentment was related to his mental health issues. These matters may feed off each other. The circumstances of his breakup may have contributed to the onset of the offender’s depressive symptoms and even the onset of an adjustment disorder. If not effectively treated, his mental issues may in turn feed off his bitterness and his ongoing addiction which it seems he was not honest about to the health professionals he consulted about his depressive and other symptoms. An adjustment disorder or clinical depression may reduce one’s moral culpability but on the evidence before me, not by very much.

  1. Emphasis was placed upon what are referred to as Bugmy considerations. This a reference to the principles discussed in the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) where the High Court held that evidence of the effects of profound childhood deprivation may serve to reduce an offender’s moral culpability for the inability to control violent impulses when intoxicated. On the other hand, an inability to control violent responses when intoxicated may increase the importance of protecting the community from the offender. Profound childhood deprivation may also reduce the weight ordinarily to be given to personal and general deterrence. It may bring rehabilitation as a purpose of punishment more sharply into focus.

  2. The argument was put that his parent’s separation and divorce at a vulnerable and impressionable age that seems led him into dabbling with illicit drugs, in the form of cannabis. This can be seen as having contributed to his eventual ice addiction which played so important a part in his offending in the way explained by Ms Duffy and Dr Nielssen. There are a great number of difficulties with the acceptance of this submission. First, as I have said, it must be acknowledged that divorce is a regrettable circumstance and it must necessarily have its effect on the children of the marriage. However, it hardly equates to the type of profound social deprivation discussed in Bugmy and subsequent cases. In all other respects, the evidence is that the offender had a normal and happy upbringing typical of children raised in the suburbs of Australian cities around the turn of the 21st century.

  3. Secondly, even accepting that teenage experimentation with drugs may lead to addiction, matters of choice are still involved notwithstanding a teenager’s intellectual and emotional immaturity. Moreover, it seems that his addiction to the notorious drug ice did not commence until the age of 24, by any measure the age of maturity and freedom of choice. From what he told Dr Nielssen he did not disclose his ice addiction to the doctors who were caring for his mental health. By that means he deprived himself of an opportunity to receive treatment for his substance abuse before it spiralled completely out of control.

  4. Thirdly, it’s well recognised that addiction will ordinarily increase the weight given to personal deterrence and community protection because of its association with the risk of re-offending: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 (“Munda”) at 56. Generally drug fuelled violence, depending upon all the circumstances, may provide an example of moral culpability to a serious degree: Munda at 57.

  5. Finally, by s 21A(5AA) of the Sentencing Act it is made clear that an offender’s self-induced intoxication cannot operate to mitigate the circumstances of the offending. This important provision ought not be circumvented by allowing self-induced intoxication an ameliorating effect under a different rubric. Even if one classifies the offender’s intoxication as a toxic delirium, that expression connotes no more than the transient effect of a person’s self-administered use of illicit drugs on the occasion of his offending.

  6. This is not to say there are not things that can be said in the offender’s favour. As I have said, his record is not such as would disadvantage him. Despite his relatively medium term addiction to ice, there is no pattern of other serious offending related to it suggesting he presents a particular risk of recidivism. Although the evidence of remorse in relation to the murder offence is not as fulsome as one would wish to see, his strong family support, good background and strong community ties are positive signs for remorse and rehabilitation. With some reservation I am prepared to accept his expressions of remorse to his supporters as some evidence suggesting his prospects of rehabilitation are reasonably good. He has already taken such limited opportunities as are available to him on remand to commence this. I note from his custodial history that he has committed only one infringement of prison discipline. Importantly there is no infringement of prison discipline suggesting ongoing usage of illicit drugs in custody.

  7. I acknowledge the offending is aggravated by the consideration that James was murdered in the sanctity of his own home, a factor of some significance especially given the considerations that he freely admitted the offender to the home at the offender’s request and offered him hospitality. His vulnerability as a young person is factored in when one has regard to the increased standard non-parole period applicable where the victim is a child. The usual standard non-parole period for murder of 20 years is increased to 25.

  8. I have already referred to mitigating factors and I will take care not to double count. I will repeat that I am not satisfied that provocation even to a lesser extent has been demonstrated in this case. Due to his drug addiction, the offender was an emotional power keg and exploded when he took offence at something said by James in a passage of conversation the offender had initiated. Drawing down the language of the plurality of the High Court in Munda a very powerful factor operating on my sentencing discretion in this case is the need to recognise that the appellant by his ice-fuelled violent conduct took a human life and indeed the life of a young person. A just sentence must accord due recognition to the human dignity of his victim and the “legitimate interest of the general community in the denunciation and punishment” of the destruction of the life of James Cleghorn in these circumstances.

  9. Taking all of the relevant facts, matters and circumstances I have referred to in my judgment together, including the maximum penalty and standard non-parole period, the appropriate maximum sentence for the offence and the offender is one of 30 years.

  10. So far as the structure of the sentence is concerned, I will run the sentence for the s 112(2) offence concurrently with the sentence for the car stealing offence under s 154A(1)(a) of the Crimes Act. To recognise the separate criminality and the separate victim involved in that offending I will partially accumulate the sentence for the murder of James so that it commences at the expiration of 2 years of the prior sentence. The total effective sentence then will be one of 32 years.

  11. I will backdate the commencement of the sentence to the date of his arrest on the 7 June 2016 to take account of time already served on remand. For the purpose of fixing the non-parole period for the murder offence, I find special circumstances in the need to maintain the statutory ratio between the non-parole period and the maximum term over the length of the total effective sentence. Adopting this approach, the non-parole period for the murder sentence will be one of 22 years. The total effective non-parole period with the partial accumulation will be 24 years.

  12. In coming to this conclusion I have had regard to the comparable sentences to which I was referred by Mr Wilson. I have had regard to the detailed schedule he provided of the murder of child victims since the year 2000. I have also had regard to the statistics analysed by Mr Wilson in his written submissions. I have used this material essentially as a yardstick to measure the result I have arrived at, but by reference to the circumstances of this particular case. I appreciate the sentence I have arrived at is a substantial, but a comparison of it against the other matters does not persuade me that it is disproportionate in all the circumstances.

  13. I have provided for a substantial non-parole period, but no one should assume, least of all the offender that he will automatically be released after the expiration of the non-parole period on the 6 June 2040. This is merely the earliest he is eligible for release. Whether he is released or not at that time will depend upon a decision of the State Parole Authority, which may in turn depend upon the progress he has made in rehabilitation by then. Doubtless this will require significant determination on his part in difficult circumstances.

  14. The murder of James is a serious violent offence to which the Crimes (High Risk Offenders) Act 2006 (NSW) applies and I am required by law to warn the offender that the provisions of that Act may make him liable to extended detention or supervision after the end of the sentence I will impose.

  15. Mr Cliff stand up.

  16. By this verdict the jury have convicted you of the murder of James Cleghorn.

  17. On your plea of guilty I convict you of the offence of breaking and entering the dwelling house of Ms Suzanne Lipu and committing a serious indictable offence therein, namely larceny in circumstances of aggravation, being that you used physical violence on Ms Lipu.

  18. On your plea of guilty I convict you of taking and driving Ms Suzanne Lipu’s Toyota Camry Altise motor vehicle without her consent.

  19. I acquit you of the charge of using an offensive weapon with intent to commit an indictable offence on Mr Wade Garland. Court Attendance Notice H: 8523701 is dismissed.

  20. I sentence you as follows:

  1. For the aggravated offence of break and enter you are sentenced to a fixed term of imprisonment of 3 years duration commencing on 7 June 2016 and expiring on 6 June 2019;

  2. For the car stealing offence you are sentenced to a fixed term of imprisonment of 1 year commencing on 7 June 2016 and expiring on 6 June 2017;

  3. For the murder of James Cleghorn you are sentenced to a term of imprisonment having a non-parole period of 22 years commencing on 7 June 2018 and expiring on 6 June 2040 with an additional term of 8 years commencing on 7 June 2040 and expiring on 6 June 2048;

  4. You will first be eligible for parole after the expiration of the non-parole period on 6 June 2040.

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Decision last updated: 07 May 2018

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Most Recent Citation
Rogers v R [2021] NSWCCA 61
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Cheung v The Queen [2001] HCA 67
Cheung v The Queen [2001] HCA 67
Cheung v The Queen [2001] HCA 67