The Queen v William Levi Clare - [2000] QCA 263

[2000] QCA 263
COURT OF APPEAL

McPHERSON JA
DAVIES JA
THOMAS JA

[R v Clare]

CA No 70 of 2000

THE QUEEN

and

WILLIAM LEVI CLARE Applicant

BRISBANE

..DATE 04/07/2000

JUDGMENT

DAVIES JA: The applicant was convicted after a trial in the Supreme Court of attempting to procure a man, Douglas, between 1 and 29 April 1997 to shoot a man, Griffith, with intent to murder. At the same time he was acquitted of a charge of attempting to procure Douglas to shoot another man, Hard, with intent to murder him.

The facts with respect to the offence of which the applicant was acquitted are relevant at least because one of the grounds of his appeal against the sentence imposed on him is that there was a lack of parity between his sentence and that imposed on another man, Hunter, who was convicted of the offence of which he was acquitted.

The applicant was convicted on 10 September last year and because, amongst other reasons, he appealed against that conviction, he was not sentenced until 28 February this year. On that date he was sentenced to eight years imprisonment, cumulative upon sentences he was then serving, with a recommendation for parole eligibility on 30 June 2003.

At the time of the alleged commission of these offences, Hard was the de facto husband of Hunter's former wife. Griffith was a man whom, the Crown alleged, Clare believed was informing the National Crime Authority about Clare's illegal activities. The case against Hunter was that Hunter had cause to resent Hard and his former wife. Hearing dates for matrimonial proceedings between them had been set and were approaching.

Douglas was engaged initially in that respect to threaten the former wife with the possibility, amongst other things, of an "extreme accident", as it was described, to Hard. Initially his instructions with respect to Hunter's former wife and Hard were to intimidate. By contrast, Clare's purpose was a cold-blooded one of removing someone who was informing against him to the authorities.

Both offences were to be committed with a .45 calibre pistol owned by Clare. Douglas was to commit them in repayment of money borrowed from Clare. A number of recorded conversations between Clare and Douglas record that Clare had in mind the death of some other people who may also, or perhaps even instead, have informed against him. Clare was also the initial contact between Douglas and Hunter in respect of the proposed killing of Hard.

The learned sentencing Judge who sentenced both Clare and Hunter observed that Hunter's motivation was a domestic one. He also took into account, in Hunter's favour, the fact that he reported the matter to the police in time to protect his wife and Hard from what he believed to be an attempt to kill Hard by Douglas. He also took into account Hunter's less serious criminal history. Hunter was then sentenced to five years imprisonment, suspended after 12 months.

The applicant, who was 51 at the time of…

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 The Queen v William Levi Clare

Details

AGLC: The Queen v William Levi Clare [2000] QCA 263
Case: [2000] QCA 263
Decision Date: 4 July 2000

CaseChat Overview and Summary

The case involves William Levi Clare, who was convicted in the Supreme Court of attempting to procure a man named Douglas to shoot another man, Griffith, with intent to murder him between 1 and 29 April 1997. Clare was acquitted of another charge of attempting to procure Douglas to shoot a man named Hard with intent to murder him. Clare was sentenced to eight years imprisonment, cumulative upon sentences he was serving, with a recommendation for parole eligibility on 30 June 2003. Clare appealed against his sentence on several grounds, including a lack of parity between his sentence and that of another man, Hunter, who was convicted of the offence of which Clare was acquitted. The Court of Appeal considered the appeal and examined the relevant factors in determining the sentence.

The legal issues the Court of Appeal needed to decide included whether there was a lack of parity between Clare's sentence and Hunter's sentence, whether Clare was denied the benefit of a declaration in respect of pre-trial custody, whether the cumulative nature of the sentence made it unduly onerous and excessive for the totality of the offences for which he was required to serve imprisonment, and whether Hunter but not Clare had been given the benefit of good behaviour in prison, whereas Clare's behaviour in prison had been exemplary.

The Court of Appeal found that there was no lack of parity between Clare's sentence and Hunter's sentence. The Court considered Clare's motivation, the elimination of an informer, which strikes at the heart of the justice system and makes his offence much more serious than Hunter's. The Court also found that Clare's previous criminal history was much more serious than Hunter's. The Court further found that Clare provided Douglas with the relevant weapon and was the initial point of contact with him in respect of both offences. The Court concluded that the difference between the sentences imposed on each was as marked as it was. The Court of Appeal also found that the complaint about denial of a declaration in respect of pre-trial custody had no substance, as Clare was returned to custody because his parole in respect of the earlier offence was suspended, and the period in custody would be taken into account in respect of that offence.

The Court of Appeal found that the complaint that this sentence ought not to have been served cumulatively or that the effect of its imposition cumulatively was to impose too heavy a burden for the totality of Clare's criminal conduct did not matter when considering whether the sentence was manifestly excessive. The Court also found that the complaint about credit being given for Hunter's good behaviour and none for Clare's had some substance, but it did not affect the overall sentence. The Court concluded that the overall sentence was not manifestly excessive and refused the application.

The Court of Appeal dismissed the application for leave to appeal against the sentence.

Orders