R v Clissold

[2002] NSWCCA 356

CITATION:	Regina v Clissold (Revised to include second counsel) [2002] NSWCCA 356 revised - 15/11/2002
FILE NUMBER(S):	CCA 60340/02
HEARING DATE(S):	19 August 2002
JUDGMENT DATE:	19 August 2002
PARTIES :	Regina v Ian Raymond Clissold
JUDGMENT OF:	Hodgson JA at 26,28; Simpson J at 27; Smart AJ at 1

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70002/01
LOWER COURT JUDICIAL OFFICER :	Greg James J

COUNSEL :	(C) P Ingram (R) C B Craigie SC and Ms C T Loukas
SOLICITORS:	(C) S E O'Connor (R) Sydney Regional Aboriginal Corporation Legal Service
CATCHWORDS:	Crown appeal against sentence - accumulation of sentences - special circumstances - judge not bound to adhere to three-quarters rule for the total sentence - wide discretion of judge - correct construction of s.44 of Crimes (Sentencing Procedure) Act.
LEGISLATION CITED:	Nil
CASES CITED:	Nil
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

HODGSON JA

SIMPSON J

SMART AJ

Monday, 19 August 2002

REGINA v IAN RAYMOND CLISSOLD

JUDGMENT

1. SMART AJ: The Director of Public Prosecutions has appealed against the following sentences imposed upon Ian Raymond Clissold, the offender, in the Supreme Court on 17 May 2002:

(i) assault occasioning actual bodily harm - four years imprisonment commencing on 25 January 2000 (the date of the offender's arrest)
(ii) manslaughter - 14 years imprisonment with a non-parole period of eight years to commence on 25 January 2002.

2. Thus the effective total sentence is 16 years and the applicant is eligible for release on parole after 10 years, that is, on 24 January 2010. The attack of the Crown centres on the non-parole period which it contends should be 10 years so that the offender becomes eligible for release on parole after 12 years, that is, on 24 January 2012.

3. In brief, on 4 August 1999, the offender and two other men entered the house of Gregory Mark Symonds, assaulted him and assaulted and abducted Peter John Ledger using a knife to do so. Subsequently Ledger was killed.

4. The offender was initially charged with murder. The judge gave two pre-trial rulings. In one he rejected evidence directed towards establishing the place of the death of the deceased, Peter John Ledger, on the basis that the evidence was of little probative value and merely gave rise to speculation. In the other, the judge determined that the evidence of Symonds identifying the offender as the assailant was admissible. However, the judge raised in that ruling limitations on what might occur at trial concerning identification. The plea of guilty to each charge were entered following that ruling.

5. The plea to manslaughter was entered on the basis that the offender was an accessory before the fact to an unlawful and dangerous act occasioning the death of the deceased. The plea in respect of the assault upon Mr Symonds was entered upon the basis that the offender was a party with others to an attack upon that man as householder in order to abduct the deceased. On the orders of the Supreme Commander of the Commancheros, Jock Ross, the deceased was to be given a flogging by members of that body, supervised by the offender, its Sergeant at Arms.

6. It was accepted by the Crown that, in the absence of the plea of guilty, the offender might have been acquitted of any involvement in the death. Mr Symonds' identification may not have been persuasive. The other identification evidence came from a Mr Crowley, to whom the offender allegedly said:

“I am in a bit of trouble. Jock told us to sort somebody out, he was causing a bit of trouble and teach him a lesson, but it went a bit too far. It wasn't intentional and the bloke died after it.”

7. It was accepted by the Crown that it was not able to prove beyond reasonable doubt who amongst the assailants did what and with what intention, or who was present after the assailants left the house and during the flogging. This concession was made as there was evidence of a statement made by the offender to a psychologist that although he had participated in the initial assault and abduction, he had left the group suffering from abdominal pain prior to the conclusion of the flogging and that, so far as he was aware, it was never intended that the deceased should be subjected to grievous bodily harm.

8. It was not accepted by the offender that the Crown material supported a finding beyond reasonable doubt that the offender was present when the really serious injuries were inflicted. Nor was it accepted that he had a controlling role at the time at which the flogging escalated from one in which no serious physical injury was to be occasioned to the deceased to one where really serious physical injury or death was intended to be or might have been occasioned or was in contemplation. The Crown was prepared to proceed on the basis that it could not establish these matters to the requisite degree..

9. The offender and the deceased were members of the Western Chapter of the Commancheros Motor Cycle Club. The deceased had stayed at the home of Symonds overnight on 3 August 1999. Shortly before 8pm on 4 August 1999, Symonds, on answering a knock at the front door, was confronted by Brady Hamilton, a member of the Commancheros, the offender and another man. When Hamilton ascertained that Ledger was present, the three visiting assailants forcibly entered the house. The offender threatened Symonds with a knife and punched him to the left side of the head dazing him. Symonds was ordered to move along the hallway and upon the kitchen being reached, the offender punched Symonds to the ear knocking him to the floor.

10. A sum of money was demanded of the deceased. The assailants had attended with a view to obtaining some money allegedly owed by the deceased, the club colours and to enforce some form of club discipline at the instigation of the Supreme Commander. The offender punched the deceased heavily and repeatedly to the face. The money and colours were demanded. The deceased begged Symonds to help him, but Symonds said he did not know what was going on and did not want to know. The deceased was punched again a number of times. He was crying out. The unidentified man had a meat cleaver in his hand. The offender pressed a knife against the deceased's back and ordered him from the house. Symonds was ordered not to go near the telephone.

11. The Crown's statement of fact continues:

“...Ledger was taken by the prisoner and the others to an unknown location where he was savagely beaten. About 9.25pm that evening his dead body was found in the driveway of the home of his estranged wife...".

12. There were numerous bruises, lacerations and abrasions to Ledger's head, body, arms and legs. There was fracturing and extensive damage to the left side of the jaw and extensive bruising under the scalp and blood in the cavity of the right lung. There were the following additional major injuries:

· a fracture of the skull which extended into the base of the skull;

· extensive fractures to the face; the right cheek bone was completely detached from the rest of the face;

· the anterior wall of the upper jaw bone was fractured with exposure of the right maxillary sinus;

· fractures through the left cheek bone and upper jaw bone and several fractures through the lower jaw bone;

· fracture in the hard palate and part of the floor of the anterior fossa of the skull;

· fractures with associated bruising through the third to the twelfth ribs on the right side;

· fractures of the seventh, eighth and ninth ribs causing penetration into the pulmo cavity and lacerations of the lung;

· extensive fractures of the left femur and the left leg and soft tissue damage.

13. The pathologist concluded that the death was due to the effects of severe injuries, especially to the head and face, consistent with a severe beating and that the major injuries to the leg and chest would have contributed to death by virtue of blood loss and impairment of breathing. A spiked knuckle duster was located and the injuries sustained were consistent with the use of such an implement. The judge was unable to say that the offender was aware of the use or intended use of some such implement.

14. The offender was born on 3 March 1965. His prior record began in 1985 in the Children's Court. Since then he has had convictions for offences of dishonesty, offences involving violence and driving offences. In October 1996, he was sentenced to a minimum term of one year for maliciously inflicting grievous bodily harm and an additional term of one year. He also received sentences of six months imprisonment for driving offences which were concurrent with the minimum term. For breach of parole he was ordered to serve the balance of parole. In July 1998, he was fined for contravening a domestic violence order and sentenced to three months imprisonment for a driving offence. The offender's record does not assist his claim for leniency.

15. The offender has a history of stable employment over many years and was described by his employer of twelve years standing as an excellent worker. The employer stated that the offender behaved himself and tried to avoid violent. There were other testimonials to his good qualities, including his support of those who had moral claims upon him and as to his exemplary behaviour in gaol.

16. The offender left school in year 7. He is in the bottom 3 per cent of the population in intelligence. According to Ms A Robilliard, consultant psychologist, the offender's personable manner and good communication skills belie his true level of cognitive ability. She described his level of reading as very rudimentary.

17. Ms Robilliard recorded, and there is other supporting evidence, that about two years prior to the events in question the offender and his family, a partner and her two children, moved to the South Coast in search of a quieter lifestyle and less active involvement with the Commancheros. He would have preferred to have been left alone and not asked to attend to this matter. He has been in a committed relationship with his partner since 1994 and views it as permanent. Ms Robilliard has written that the offender deeply regrets his involvement in the incident in question and that he was not present to intervene to prevent matters going too far.

18. The judge held that the appellant's culpability for manslaughter was very, very high. That cannot be gainsaid. The judge accepted that the offender was the original instigator of the assaults and the instigator of the viciousness and brutality used in the Symonds' home. The judge correctly held that there was a degree of planning and that both personal and general deterrence were important. He thought that there was limited contrition and that the plea had been entered at the first reasonable practicable opportunity. The judge gave an overall discount of 20 per cent for the plea, limited contrition and other mitigatory features.

19. The judge declined to impose a non-parole period in respect of the sentence of four years for assault because of the penalty that he imposed for the manslaughter and the fixing of a non-parole period on that sentence. The judge continued:

“In that regard, in respect of the extent of that per cent [that is, the non-parole period] and noting section 44 of the Crimes (Sentencing Procedure) Act 1999, I find special circumstances which permit the imposition for the manslaughter of a non-parole period of a lesser extent than that which would be required because of the length of the sentence to be imposed, that is, partly cumulative. I have determined to impose a non-parole period of eight years.”

The reference to section 44 includes a reference to section 44(1)(b), namely that the non-parole period is the minimum period for which the offender must be kept in detention in relation to the offence. Total or partial accumulation is a well-recognised special circumstance. Whilst section 44(2) provides that the non-parole period must be not less than three quarters of the term of the sentence unless the Court decides that there are special circumstances for it being less, the section does not state what the non-parole period should be. For guidance as to that, resort must be had to section 44(1)(b).

20. The judge has followed the statutory scheme and determined the minimum period required to be spent in gaol. Of course the judge would bear in mind the three quarters rule in section 44(2) in so doing.

21. I reject the Crown argument that where the special circumstance relied upon is the total or partial accumulation of sentences and no other special circumstance is specified, even if available, that the judge must or should fix a non-parole period that is three quarters of the total sentence. Section 44 does not so provide. Of course, in some cases that will be the correct course. The judge has a considerable degree of discretion.

22. The Crown argument involves reading into section 44(2) words which do not appear. It also involves singling out of the phrase "special circumstances" in section 44(2) one special circumstance. That would be an odd course to take when the statute does not do so. The Crown justified this upon the basis that in such a case the extent of the reduction was readily able to be quantified. That is an insufficient warrant for adopting an odd or differential construction of section 44(2).

23. Looking at the sentences overall, the result achieved by the judge was reasonable. Each sentence was correct and the partial accumulation was correct. It was right to mark the gravity of the assault on Symonds by the partial accumulation. It was also right for the judge, taking an overall view of the sentence, to determine that the appellant should not be eligible for release on parole for 10 years and to fix a non-parole period of eight years on the manslaughter charge.

24. I would dismiss the Crown appeal on the basis that no error has been made by the judge. Even if I had been of the view that the judge had made an error I would dismiss the appeal bearing in mind the principles of double jeopardy. Further, sentences determining that the offender should be eligible for release on parole after 10 years were sound and well within the permissible range.

25. I propose that the Crown appeal be dismissed.

26. HODGSON JA: I agree.

27. SIMPSON J: I also agree.

28. HODGSON JA: So the order of the Court is that the appeal is dismissed.

**********