R v Cliff (No 6) - [2018] NSWSC 587

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

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.
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…

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 R v Cliff (No 6)

Details

AGLC: R v Cliff (No 6) [2018] NSWSC 587
Case: [2018] NSWSC 587
Decision Date: 04 May 2018

CaseChat Overview and Summary

The case involved the respondent, Cliff, who pleaded guilty to charges including murder of a child under the law, aggravated break and enter, and steal. The court was required to determine an appropriate sentence for these crimes, considering various factors such as the objective seriousness of the offences, the impact of intoxication and provocation, the mitigating circumstances, and the family impact statements. The court also needed to assess the totality of the sentence and whether any special circumstances warranted a departure from the standard sentencing principles.

The court first examined the objective seriousness of the crimes, noting the gravity of the murder charge and the aggravating factors present in the break and enter and steal offence. The respondent's intoxication and the role of provocation were considered, along with the mitigating factors presented. The court acknowledged the plea of guilty and the evidence of the respondent's consciousness of guilt. Family impact statements were also taken into account, providing insight into the effects of the crimes on the victim's family. The court then assessed the aggregate sentence, ensuring that it did not exceed what was proportionate to the overall criminality of the respondent. The subjective factors, such as remorse, and special circumstances, including the concurrence of the offences, were also weighed in determining the final sentence.

After thorough consideration of the evidence and arguments presented, the court concluded that the sentence should reflect the gravity of the offences and the respondent's culpability. The court found that the totality principle was satisfied, and that the sentence should not be excessive. The court took into account the mitigating factors and the impact on the victim's family, but also recognised the need for general deterrence. The final orders of the court were that the respondent be sentenced to imprisonment for a specified term, reflecting the court's assessment of the seriousness of the offences and the respondent's culpability.

Orders