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R v Clissold

R v Clissold

Case [2002] NSWCCA 356 19 August 2002

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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…

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 Clissold

Details

AGLC: R v Clissold [2002] NSWCCA 356
Case: [2002] NSWCCA 356
Decision Date: 19 August 2002

CaseChat Overview and Summary

In the case of R v Clissold, the Crown appealed against the sentence imposed on the defendant, Clissold, by the Supreme Court of New South Wales. The case arose from a series of convictions for various criminal offences, including armed robbery, aggravated assault, and possession of a firearm. The Crown argued that the cumulative sentence imposed by the trial judge was too lenient, given the nature and severity of the offences. The appeal was heard by the Court of Criminal Appeal of New South Wales.

The central legal issue before the court was whether the trial judge had correctly exercised his discretion under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when imposing the sentence. Specifically, the Crown contended that the trial judge failed to properly consider the need for accumulation of sentences and did not adequately address the special circumstances of the case. The court was required to determine whether the trial judge's approach to sentencing was in error and whether the sentence imposed was manifestly inadequate.

The Court of Criminal Appeal held that the trial judge had not erred in law or failed to consider the special circumstances of the case. The court emphasised that the trial judge has a wide discretion when imposing a sentence and is not bound to adhere to the three-quarters rule for the total sentence. The court further clarified that section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not require the trial judge to impose a particular sentence or to follow a specific formula. Instead, the trial judge must consider the totality of the circumstances, including the nature and circumstances of the offence, the character and antecedents of the offender, and any special circumstances that may be relevant. The court concluded that the trial judge had exercised his discretion appropriately and that the sentence imposed was not manifestly inadequate.

Ultimately, the Crown's appeal against sentence was dismissed. The court affirmed that the trial judge had correctly exercised his discretion under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and that the sentence imposed on Clissold was appropriate in the circumstances of the case.

Orders