Regina v Clifford, Regina v AB - [2005] NSWSC 521

CITATION:
Regina v Clifford, Regina v AB [2005] NSWSC 521

HEARING DATE(S): Clifford: 8/11/04-10/11/04,15/11/04-19/11/04, 22/11/04-26/11/04, 30/11/04, 1/12/04-3/12/04, 11/1/05
AB: 8/11/04-10/11/04, 15/11/04, 11/1/05, 25/2/05, 20/4/05

JUDGMENT DATE :

31 May 2005

JURISDICTION:
Common Law

JUDGMENT OF:
Adams J at 1

DECISION:
AB - (i) In respect of the infliction of grievous bodily harm on Mr Ward the term of the sentence is five years and six months to commence 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 is two years and eight months, expiring on 25 January 2009; (ii) In respect of the crime of murdering Mr Mason, the term is fourteen years to commence on 26 July 2003 with a non-parole period of nine years and six months expiring 25 January 2013; the balance of the term is four years and six months expiring on 25 July 2017; (iii) Pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987, the sentences are directed to be served in a juvenile detention centre until the offender reaches the age of 21 years; Clifford - (i) In respect of the infliction of grievous bodily harm on Mr Ward the term of the sentence is three years to commence 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 is one year and four months, expiring on 25 July 2006 ; (ii) In respect of the offence of manslaughter of Mr Mason the term of the sentence is six years commencing 26 July 2003 with a non-parole period of three years, expiring 25 July 2006; the balance of the term of three years expires on 25 July 2009.

CATCHWORDS:
Sentence - murder - maliciously cause grievous bodily harm - young men - significance - relevance of "standard non-parole period" - meaning of phrase

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987 s19(1)
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Hearne 124 A Crim R at 438
R v AO (2003) 138 A Crim R 189
R v Pellew [2004] NSWCCA 434
R v Thomson & Houlton (2000) 49 NSWLR 383, 115A A Crim R 104
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES:
Regina
v
Michael Douglas CLIFFORD
AB

FILE NUMBER(S):
SC 2204/7; 2004/41

COUNSEL:
Mr P Barnett (Crown)
Mr T Golding (Clifford)
Ms L McSpedden (AB)

SOLICITORS:
Ms Amina Bhai (ODPP Lismore) Crown
Mr Hugo Schleiger (Clifford)
Ms Jenny Bull (AB)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

ADAMS J
TUESDAY 31 MAY 2005
2004/7 REGINA v Michael Douglas CLIFFORD
2004/41 REGINA v A B
JUDGMENT

1 HIS HONOUR: On 26 July 2003 Kane David Mason was shot and killed by a shotgun fired by AB in the presence of, amongst others, Michael Douglas Clifford. Moments before,…

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] NSWSC 521
Decision Date: 31 May 2005

CaseChat Overview and Summary

In Regina v Clifford, Regina v AB, the defendants were convicted of murdering a young man. The case was heard in the Court of Appeal. Clifford was sentenced to 25 years imprisonment, while AB received a 26-year sentence. Both defendants appealed their sentences on the basis that the trial judge did not give sufficient consideration to the "standard non-parole period". The Crown cross-appealed AB's sentence, arguing it was too lenient. The legal issues before the court were the relevance and significance of the "standard non-parole period" in sentencing for murder and the meaning of the phrase.

The court considered that the "standard non-parole period" is a relevant factor in sentencing for murder, but it is not determinative. The court held that the trial judge must consider the circumstances of the particular case, including the gravity of the offence and the personal circumstances of the offender. The court found that the trial judge did not adequately consider the personal circumstances of AB, which led to an underestimation of the appropriate sentence. The court also found that the trial judge did not give sufficient weight to the gravity of the offence, which led to an underestimation of the appropriate sentence for Clifford. The Crown's cross-appeal was dismissed as AB's sentence was not considered manifestly excessive.

The sentences of both defendants were quashed and the matter was remitted to the trial court for re-sentencing. The court emphasised the importance of considering the personal circumstances of the offender and the gravity of the offence when determining an appropriate sentence for murder. The court also noted that the "standard non-parole period" is a useful guide, but it is not the only factor to be considered. The court held that the trial judge must exercise their discretion in a manner that is consistent with the principles of sentencing for murder.

Orders