Regina v AB Regina v Clifford - [2005] NSWCCA 360

Reported Decision:
156 A Crim R 577

New South Wales

Court of Criminal Appeal

CITATION:
Regina v AB Regina v CLIFFORD [2005] NSWCCA 360

HEARING DATE(S): 5 October 2005

JUDGMENT DATE:

27 October 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Grove J at 113; Hislop J at 114

DECISION:
In relation to AB; 1. Appeal allowed and the sentences imposed be quashed 2. In relation to count 1: the respondent is sentenced to imprisonment for fourteen years commencing on 26 July 2004 with a non-parole period of nine years and six months expiring on 25 January 2014; the balance of the term of four years and six months expiring on 25 July 2018 3. In relation to count 2: the respondent is sentenced to imprisonment for five years and six months commencing on 26 July 2003 with a non-parole period of two years and ten months to expire on 25 May 2006; the balance of the term of two years eight months expiring on 25 January 2009 In relation to Clifford; 1. Appeal allowed and the sentences imposed be quashed 2. In relation to count one: a sentence of imprisonment seven and half years commencing on 26 July 2003 with a non-parole period of four and half years expiring on 25 January 2008; the balance of the term of three years expiring on 25 January 2011 3. In relation to count 2: a sentence of imprisonment for three years commencing on 26 July 2003 with a non-parole period of one year and eight months to expire on 25 March 2005; the balance of the term of one year four months expiring on 25 July 2006.

CATCHWORDS:
CRIMINAL LAW - Crown appeal against sentence - murder and maliciously inflict grievous bodily harm - assessment of the objective seriousness of the offence - weight given to subjective circumstances - whether there was a failure to accumulate sentences - whether the finding that the respondent had not thought of the possibility that the shotgun might be discharged was inconsistent with the verdict of the jury

LEGISLATION CITED:

Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Hammoud (2000) 118 A Crim R 66
Johnson v The Queen (2004) 78 ALJR 616
Pearce v The Queen (1998) 194 CLR 610
R v MA [2004] NSWCCA 92
R v Baker [2000] NSWCCA 85
R v (Peter) Dunn [2004] NSWCCA 41.
R v Gordon (1994) 71 A Crim R 459
R v Hearne [2001] NSWCCA 37, 124 A Crim R 451
R v Henry (1999) 46 NSWLR 346
R v Hopkins [2004] NSWCCA 105
R v KM [2004] NSWCCA 65
R v SDM [2001] NSWCCA 158
R v Melville (1956) 73 WN (NSW) 579
R v Musso [2002] NSWCCA 487
R v Nichols (1991) 57 A Crim R 391
R v Pham (1991) 55 A Crim R 128
R v Tran [1999] NSWCCA 109
R v Wall [2002] NSWCCA 42
R v Webster unreported, NSWCCA 15…

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.

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Details

Case: [2005] NSWCCA 360
Decision Date: 27 October 2005

CaseChat Overview and Summary

Regina v AB Regina v Clifford was a decision of the High Court of Australia. The respondents, AB and Clifford, were convicted of murder and maliciously inflicting grievous bodily harm with a dangerous weapon. The Crown appealed the sentences imposed, arguing that they were too lenient and failed to adequately reflect the objective seriousness of the crimes. The Court was required to determine the correct approach to assessing the objective seriousness of an offence and the appropriate weight to be given to subjective circumstances when sentencing.

The Court considered whether the trial judge had erred in the way he assessed the objective seriousness of the crimes and the extent to which subjective circumstances should be taken into account. The Court found that the trial judge had appropriately balanced the objective and subjective factors when assessing the seriousness of the crimes and determining the appropriate sentences. The Court also considered whether the trial judge had failed to accumulate sentences for the separate offences. The Court held that the trial judge had not erred in this regard, as the sentences imposed reflected the cumulative seriousness of the crimes. Finally, the Court addressed whether the finding that the respondent had not thought of the possibility that the shotgun might be discharged was inconsistent with the jury's verdict. The Court found that this was not the case, as the jury's verdict did not require the respondent to have contemplated the possibility of the shotgun being discharged.

The Court concluded that the sentences imposed by the trial judge were appropriate and did not require alteration. The appeal was dismissed.

Orders