R v Clothier No. Sccrm-02-101 Summary

R v CLOTHIER
[2002] SASC 188
Court of Criminal Appeal: Doyle CJ, Perry and Lander JJ

DOYLE CJ. I would dismiss the appeal. I agree with the reasons given by Perry J.
PERRY J. The appellant was convicted after a trial in this Court before a judge and jury on a charge that he murdered Shane Mervyn Muller on 1 April 2000 at Swan Reach. He appeals by leave against the sentence imposed by the learned trial judge, more particularly the length of the non-parole period, which he claims to be manifestly excessive.
After imposing the mandatory sentence of life imprisonment, the learned trial judge fixed a non-parole period of 17 years to run from the date upon which the appellant had been taken into custody, namely 10 July 2001.
The deceased was a 27 year old man who lived near Swan Reach. On the night in question he was travelling to Swan Reach and for that purpose crossed the River Murray on the ferry. While on the ferry he met the appellant and another man, Mr Williams. The deceased was not previously known to either of them.
However, the three proceeded to the Swan Reach Hotel where they spent the evening.
In the early hours of the next day, that is, Sunday 1 April 2000, the appellant and Mr Williams set up camp on the riverbank not far from the hotel. Later, the deceased and two others drove to the site. The driver of the vehicle backed it into the river, where it became stuck. Unsuccessful attempts were made to free it.
Both the appellant and the deceased were at that stage significantly affected by the consumption of alcohol and by the smoking of cannabis. A fight broke out between the deceased and the appellant, during the course of which the appellant produced a knife which he had been carrying, with which he stabbed the deceased four times, once in the back just above the left buttock and three times in the area of the left chest.
The learned trial judge accepted that the knife wounds were inflicted deliberately. Two of the wounds to the left chest penetrated the deceased’s heart. As a result he died within minutes.
The learned trial judge rejected the appellant’s claim that he acted in self-defence. For the purposes of imposing sentence, he found that the appellant was the aggressor and that the deceased “reacted in a placid manner”.
However, the learned trial judge sentenced the appellant on the footing that he did not intend to kill the deceased, but that he only intended to cause him really serious bodily harm.
The appellant fled the scene immediately after the deceased collapsed. The learned trial judge accepted that the appellant panicked, and further that he became distressed when later told by the police that the deceased had died. But he rejected the submission that the appellant was “now truly contrite”. He found:
“The manner in which you gave your evidence and the psychiatric and psychological reports provided to me convey the impression that you are stressed by your own circumstances but they do not support a view that you are truly contrite. While I accept that you feel sorry for Mr Muller’s family and that you regret what you have done, I am unable to find that you have experienced true contrition. Your feelings of regret arise predominantly as a consequence of your own circumstances.”
At the time of the offence the appellant was 20 years of age. At the time he was sentenced he was 21. He had two minor previous convictions, and the learned trial judge treated him as a first offender.
A psychiatric report which was before the learned trial judge was furnished by Dr Craig Raeside. He was unable to find evidence of any form of psychiatric disorder. The appellant’s history suggested that as a child the appellant suffered from attention deficit hyperactivity disorder, and that some of the symptoms of that might still be present. However, he did not feel able to conclude that this would have had any significant effect on the appellant’s behaviour “apart from some low-grade impulsivity”.
He found also that the appellant’s history suggested a diagnosis of an anti-social personality disorder. He observed that the appellant had:
“... a lifelong history of difficulties with relationships, unlawful behaviour, impulsivity, irritability and anger, failure to sustain consistent work, and a childhood history of conduct disorder, which constitutes an anti-social personality disorder. This is a personality style that occurs in the context of childhood abuse and neglect, and poor educational and social opportunities and attainments.”
Dr Raeside was unable to say whether a fractured skull which the appellant suffered in a motor vehicle accident at the age of 7 had anything to do with the offending.
Based on a blood alcohol reading of 0.015% fourteen hours after the offence, he concluded:
“Alcohol intoxication is likely to have produced a disinhibiting state and, perhaps, contributed to lack of judgment with regard to his actions that killed the victim.”
Dr Raeside regarded the appellant as at “some risk of developing a significant mood disorder while in custody” which could possibly generate suicidal ideas. He recommended further psychiatric follow-up while he was incarcerated.
A psychologist, Dr Balfour, assessed the appellant’s “pre-morbid level of intelligence” as being in the low/average range, as was his “general vocabulary and ability to solve socially abstract problems”. Dr Balfour concluded that the appellant comes from a dysfunctional family background “characterised by neglect, and emotional and physical abuse”. He was unable to identify any “clearly identifiable neuropsychological syndrome” which might have been attributable to the after effects of the appellant’s injury to the head. He went on to observe:
“I believe that Mr Clothier’s past history of impulsive behaviour can be attributed to psychogenic variables rather than organic factors. I believe that his personality and associated history of poor socialisation due to having a dysfunctional childhood are the most likely causes of his impulsive and dysfunctional behaviour.”
Like Dr Raeside, he agreed that the appellant’s mental state should be closely monitored while in custody.
Mr Caldicott for the appellant emphasised the relative youth of his client; his lack of relevant criminal antecedents; his unfortunate childhood; the unpremeditated nature of the offence; and what he suggested were his good prospects of rehabilitation.
Against that background, he suggested that an appropriate starting point should have been of the order of 17 to 18 years, which should then have been discounted by reference to those factors.
He cited a number of other cases, but many of them involved pleas of guilty and other distinguishing features.
Ms Barnett for the Crown tendered a number of sentencing remarks from other cases which reflected a range of between 15 and 21 years for what she suggested were comparable cases.
I must say (without being critical of counsel in this case) that I hope that the fact that sentencing remarks are now routinely published on the Internet does not mean that the Court of Criminal Appeal will, when hearing sentencing appeals, be confronted with large numbers of print-outs of what are said to be relevant precedents. Any attempt to make a comparison with other cases in matters of this kind must have very limited utility.
In that respect, I agree with the remarks of Hunt CJ at CL in Morgan:[1]
“Complaint is made that, because the judge imposed a sentence which was more severe than that which I imposed (at first instance) in Jerrard[2] - a murder case which is said to have demonstrated similar circumstances - error has been established on his part. For reasons to which I will refer shortly, the circumstances of the two cases when examined are not even superficially similar, but in any event the proposition that error may be disclosed in such a manner must be firmly rejected.
It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range.”
[1] (1993) 70 A Crim R 368 at 371.
[2] Unreported, 21 December 1992.
Whether or not a given sentence is manifestly excessive, which is the sole ground of appeal in this case, will, more often than not, be a matter of first impression.
The appellant has been unable to point to any error on the part of the learned sentencing judge apart from a suggestion that the sentence imposed was excessively severe.
However, in my view, the sentence, although severe, is in line with appropriate sentencing standards.
The learned sentencing judge specifically found that the appellant was the aggressor at all relevant times. Furthermore, his introduction of a knife into the altercation which erupted between him and the deceased is a seriously aggravating circumstance.
I would dismiss the appeal.
LANDER J.I agree that the appeal should be dismissed for the reasons given by Perry J.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (1993) 70 A Crim R 368 at 371.
2. Unreported, 21 December 1992.

R v Clothier No. Sccrm-02-101

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established