R v Clifford - [2004] SASC 344

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLIFFORD
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)
3 November 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Application by Director of Public Prosecutions for leave to appeal against sentence - respondent found guilty by jury of one count of gross indecency and one count of unlawful sexual intercourse - respondent sentenced to imprisonment for 3 years with a non-parole period of 15 months - whether sentence reflects an adequate standard of punishment - whether sentence imposed reflects an error of principle - whether Judge erred in making sentences for the two offences concurrent - whether sentence manifestly inadequate - leave to appeal granted - appeal allowed - respondent's sentence of imprisonment increased to 6 years with a non-parole period of 3 years.
Criminal Law Consolidation Act 1935 (SA) s 49(4), s 58(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v D (1997) 69 SASR 413, discussed.
R v Liddy (No 2) (2002) 84 SASR 231; R v P (2003) 87 SASR 287; R v Nemer (2003) 87 SASR 168, considered.

R v CLIFFORD
[2004] SASC 344
Court of Criminal Appeal: Doyle CJ, Besanko and White JJ

DOYLE CJ: This is an application by the Director of Public Prosecutions for leave to appeal against a sentence.
Mr Clifford was sentenced by a District Court Judge, after being found guilty by a jury on one count of procuring an act of gross indecency by a person under the age of 16 years, and on one count of unlawful sexual intercourse with a person of or above the age of 12 years and under the age of 17 years. The maximum penalty for the former offence is imprisonment for a term not exceeding three years: s 58(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum punishment for the latter offence is imprisonment for a term not exceeding seven years: s 49(4) of the Criminal Law Consolidation Act 1935 (SA).
The Judge imposed a single sentence of imprisonment in exercise of the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The Judge sentenced Mr Clifford to imprisonment for three years, and fixed a non-parole period of 15 months.
I will refer to the victim of the offences as J.
J was born in September 1982. Her mother separated from her father, and in 1989 her mother became friendly with another man. She married him in 1991. He lived with J’s mother for about one year before that. They began living…

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 [2004] SASC 344
Case: [2004] SASC 344
Decision Date: 3 November 2004

CaseChat Overview and Summary

The matter before the Court of Appeal was an application by the Director of Public Prosecutions for leave to appeal against the sentence imposed on the respondent, who was found guilty by a jury of one count of gross indecency and one count of unlawful sexual intercourse. The District Court had sentenced the respondent to imprisonment for three years with a non-parole period of fifteen months. The appeal against the sentence concerned whether it reflected an adequate standard of punishment, whether it imposed an error of principle, whether the sentences for the two offences should have been concurrent, and whether the sentence was manifestly inadequate.

The Court of Appeal considered the severity of the crimes, the respondent's lack of criminal history, and the fact that this was a Director’s appeal. The Chief Justice concluded that the original sentence was inadequate and allowed the appeal. The Court set aside the sentence imposed by the District Court and imposed a sentence of two years’ imprisonment for the first offence, and four years’ imprisonment for the second offence, to run cumulatively. The Chief Justice fixed a non-parole period of three years for the combined head sentence of six years, considering the respondent's age, lack of prior criminal history, and the nature of the Director's appeal.

Both Justices Besanko and White concurred with the Chief Justice's orders and reasons. The Court granted leave to appeal, allowed the appeal, and directed that the head sentence and non-parole period run from the date when the respondent was taken into custody.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would allow the appeal, set aside the sentence, and substitute sentences of two years’ imprisonment and four years’ imprisonment as indicated. In fixing a non-parole period I am prepared to accept that Mr Clifford is unlikely to offend again. Having regard to his age, and the fact that he has not been in prison before, there is some scope for mercy in fixing the non-parole period. The fact that this is a Director’s appeal is also relevant. In relation to the combined head sentence of six years I would fix a non-parole period of three years, which is lower than usual.Conclusion I would grant leave to appeal. I would allow the appeal. I would set aside the sentence imposed by the District Court. I would impose a sentence of two years’ imprisonment for the first offence, and four years’ imprisonment for the second offence. I would direct that the second sentence be cumulative upon the first sentence. In relation to the combined head sentence of six years I would fix a non-parole period of three years. I would direct that the head sentence and non-parole period run from 22 April 2004, the date when Mr Clifford was taken into custody. BESANKO J: I agree with the orders proposed by the Chief Justice and with his reasons. There is nothing I wish to add. WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons.

Ratio Decidendi

Legal Principle Established

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