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R v Clifford

R v Clifford

Case [2008] NSWCCA 190 15 August 2008

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New South Wales
Court of Criminal Appeal

CITATION: R v Clifford [2008] NSWCCA 190

HEARING DATE(S): 2 July 2008

JUDGMENT DATE:
15 August 2008

JUDGMENT OF: Allsop P at 1; James J at 2; Price J at 3

DECISION: 1. Crown appeal allowed. 2. Sentences imposed in the District Court on counts 2-7 inclusive are quashed.
3. In respect of count 2 sentence the respondent to imprisonment for a non-parole period of 2 years 9 months to date from 12 September 2007 and expire on 11 June 2010 and a balance of term of 2 years 6 months expiring on 11 December 2012. 4. In respect of count 3 sentence the respondent to imprisonment for a fixed term of 15 months commencing on 12 October 2007 and expiring on 11 January 2009. 5. In respect of count 4 sentence the respondent to imprisonment for a fixed term of 18 months commencing on 12 December 2007 and expiring on 11 June 2009. 6. In respect of count 5 sentence the respondent to imprisonment for a fixed term of 18 months commencing on 12 March 2008 and expiring on 11 September 2009. 7. In respect of count 6 sentence the respondent to imprisonment for a fixed term of 21 months commencing on 12 June 2008 and expiring on 11 March 2010. 8. In respect of count 7 sentence the respondent to imprisonment for a fixed term of 21 months commencing on 12 December 2008 and expiring on 11 September 2010. The overall effective sentence will be a non-parole period of 3 years 9 months commencing on 12 December 2006 and expiring on 11 September 2010 and a balance of term of 2 years 3 months expiring on 11 December 2012. The earliest date on which the respondent will be eligible for release to parole is 11 September 2010.

CATCHWORDS: Criminal law - sentencing - Crown appeal - offences of break, enter and steal - sentence manifestly inadequate - repeat offending - small businesses - accumulative effect of aggravating factors - matters on Form 1 - consideration of discretion not to intervene - sentence manifestly inadequate

LEGISLATION CITED: Crimes Act 1900 s 113(1), s 112(1), s 154AA(1),
Crimes (Sentencing Procedure) Act 1999 s 3A,
s 21A(2)

CATEGORY: Principal judgment

CASES CITED: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Ayoubi v Regina [2006] NSWCCA 364
Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Griffiths v The Queen (1977) 137 CLR 293
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Malvaso v The Queen (1989) 168 CLR 227
Markarian v The Queen (2005) 79 ALJR 1048
Mill v R (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Allpass (1993) 72 A Crim R 561
R v Baker [2000] NSWCCA 85
R v Barton (2001) 121 A Crim R 185

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 Clifford

Details

AGLC: R v Clifford [2008] NSWCCA 190
Case: [2008] NSWCCA 190
Decision Date: 15 August 2008

CaseChat Overview and Summary

The case of R v Clifford involved a defendant who had been convicted of multiple offences of breaking, entering, and stealing from small businesses. The prosecution appealed the sentence imposed on the defendant, arguing it was manifestly inadequate. The appeal was heard by the relevant appellate court, which was tasked with determining whether the sentence was appropriate in light of the nature and circumstances of the offences. The court had to consider the cumulative impact of the defendant's repeat offending, the vulnerability of the victims, and the broader impact on the community.

The primary legal issue before the court was whether the original sentence was manifestly inadequate, warranting an increase. The court needed to balance the principles of proportionality and deterrence against the need to avoid excessive punishment. The court considered the matters listed on Form 1, which outline the relevant aggravating and mitigating factors. It assessed the accumulative effect of the aggravating factors, including the defendant's history of similar offending and the harm caused to the victims. The court also had to weigh the discretion not to intervene against the public interest in ensuring that sentences reflect the seriousness of the crimes.

After thorough consideration, the court found that the original sentence was indeed manifestly inadequate. The cumulative impact of the defendant's repeat offending, coupled with the harm caused to the small businesses, justified a higher sentence. The court exercised its discretion to increase the sentence, taking into account the need for deterrence and to reflect the community's expectations of justice. The appellate court concluded that the revised sentence better aligned with the principles of sentencing and the specific circumstances of the case.

The final orders included an increased sentence for the defendant, reflecting the court's determination that the original penalty was insufficient. The court's decision underscored the importance of considering the totality of the circumstances, including the defendant's criminal history and the impact on the victims, when determining an appropriate sentence.

Orders