Clover v The King
[2024] NZHC 919
•24 April 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2024-419-14
[2024] NZHC 919
BETWEEN JASON TEOINGA CLOVER
Appellant
AND
THE KING
Respondent
Hearing: 16 April 2024 Appearances:
K Whyte for Appellant S Hartstone for Crown
Judgment:
24 April 2024
JUDGMENT OF BECROFT J
[As to appeal against sentence]
This judgment was delivered by me on 24 April 2024 at 3pm Registrar/Deputy Registrar
……………………………………
Solicitors/Counsel:
Thackery Chambers, Hamilton Hamilton Legal, Hamilton
CLOVER v R [2024] NZHC 919 [24 April 2024]
This appeal
[1] Mr Jason Clover was sentenced to five years and three months’ imprisonment by Judge RG Marshall on 7 February 2024 at the Hamilton District Court.1
[2] The sentence was for two tranches of offending. Mr Clover was found guilty of the lead charge of wounding with intent to cause grievous bodily harm,2 following a Judge-alone trial on 1 November 2023.3 Separately, Mr Clover pleaded guilty to charges of possession of an offensive weapon,4 and unlawful assembly,5 relating to a different incident.
[3] Mr Clover appeals his sentence on the basis that it was manifestly excessive because the six-year starting point adopted by the Judge for the lead charge was too high and insufficient credit was given for factors in his cultural report and the impact of imprisonment on his daughter.
[4] The Crown’s position is that the end sentence cannot be said to be manifestly excessive, and the appeal should be dismissed.
Summary of offending
[5] The lead offence occurred at a Hamilton motel in which Mr Clover had been living in with his partner and their child. Also staying at the motel, in separate units, were Daniel McGaffin, Mr Clover’s acquaintance and co-offender, and the victim.
[6] The victim was aged 74 years at the time and was physically frail. He sometimes required the assistance of a walking frame and had a mobility scooter in his unit. Mr McGaffin would assist the victim from time to time and the Judge records that there was a form of friendship that developed between the two, at least as far as the victim was concerned.
1 R v Clover [2024] NZDC 2344 [Sentencing judgment].
2 Crimes Act 1961, s 188(1). Maximum penalty of 14 years’ imprisonment.
3 R v Clover [2023] NZDC 24142 [Conviction judgment].
4 Crimes Act, s 202A. Maximum penalty of three years’ imprisonment.
5 Crimes Act, s 86. Maximum penalty of one years’ imprisonment.
[7] On the afternoon of 13 January 2023, Mr McGaffin came into the victim’s unit, uninvited. Although the victim’s memory of the events is impaired because of his age and the trauma he subsequently experienced, the victim recalled that Mr McGaffin was rummaging around papers on the kitchen table looking “for accounts”. The victim told Mr McGaffin to leave. Mr McGaffin did not leave, and instead let Mr Clover into the unit, who was armed with a steel bar at least 10–12 inches long.
[8] When Mr Clover entered the unit, the victim was sitting on the bed in his room. Without saying anything, Mr Clover started attacking the victim with the bar. The victim defensively held up his right forearm and received around half a dozen strikes to his forearm area. He was of the opinion that Mr Clover was aiming the strikes towards his head. During the attack the victim asked what Mr Clover was doing and received no reply.
[9] Mr Clover gave a video interview to the police on 17 January 2023. Relevantly, when asked why he attacked the victim, Mr Clover said: “it was just a lesson, that’s all it was, and the person was crying and sorry for what they did.” The Judge records Mr Clover’s interview as saying the following in relation to attacks to the head:6
He denied that he had tried to hit [the victim] in the head. He said that was a lie. He said he knew instantly that that is what would have happened and that [the victim] was holding his hands down and he was whacking his hands just to teach him a lesson and that was his chief goal.
[10] After the attack, the victim was taken to Waikato Hospital by ambulance. The victim describes the physical injuries he suffered in his Victim Impact Statement dated 9 November 2023 as follows:
Physical Injuries
As a result of being assaulted I suffered:
·A broken right forearm which had the bone exit the side of my forearm. To fix the broken arm I had a titanium rod put in to support the broken bone.
·My right thumb was broken at the base of the thumb where it meets my hand. I had a brace placed on my thumb to heal it.
6 Conviction judgment, above n 3, at [18].
·My pinky finger and right hand ring finger bones were completely shattered. To fix these fingers the bones had to be fixed with K wire. The doctors explained this type of surgery is only required for really serious breaks.
I was in Waikato Hospital for about a week [discharged on 18 January 2023]. I was then released to Rhoda Reid Hospital in Morrinsville for about six weeks.
After I was released I would return to several physio appointments to gain strength and movement in my hand/fingers and consultations to check on my progress and recovery. I would attend these appointments about 2 to 3 times a week for about two months.
[11] The facts of the further offending (possession of offensive weapon and unlawful assembly) to which Mr Clover pleaded guilty are recorded in the Judge’s sentencing decision and can be shortly summarised. In the morning of 15 March 2023, Mr Clover was with a group of Mongrel Mob members in the Highbury Shopping Centre, Palmerston North. Other members of the group fired gunshots at passing vehicles driven by a rival gang. At that time Mr Clover was wearing a gang patch and had a knife in his right hand as visible from the CCTV footage.
District Court sentencing
[12] It was accepted by all parties that the offending fell into band 2 (starting point of 5 to 10 years) of R v Taueki.7 The Judge largely accepted the Crown’s submissions regarding the aggravating factors of the offending:8
They point to the following aggravating factors, premeditation, although I accept that this was more hot-headed in the spur of the moment action, attack to the head, although I accept that there was no actual blow to the head, and serious injury that is present in my view to a moderate degree. The use of a weapon certainly. Multiple attackers, although only one actually took part. It was a home invasion. The victim due to his age was vulnerable and it did have characteristics of vigilante action.
[13] Judge Marshall noted that in a separate sentencing indication, another judge had given a six-year starting point for Mr McGaffin’s charge of wounding with intent to cause grievous bodily harm as a party to Mr Clover’s offending. Judge Marshall accepted the Crown’s submission for a six-year starting point, given that Mr Clover’s part in the offending was equally, if not more, significant. Considering the aggravating
7 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
8 Sentencing judgment, above n 1, at [8].
features and having regard to issues of parity with Mr McGaffin, six years was appropriate.
[14] The Judge considered the additional offending of possession of offensive weapon and unlawful assembly could well have led to a nine-month term of imprisonment. However, the Judge applied a three-month uplift to the starting point on a totality basis.
[15] As to mitigating factors, the Judge considered that a 15 per cent reduction was appropriate for factors raised in the cultural report submitted for Mr Clover, finding that:9
… there was a dislocation of Mr Clover during his upbringing and that has considerably disadvantaged him and distanced him from the advantages that other people would have enjoyed at that age.
[16] The Judge gave a one-month allowance to recognise Mr Clover being on restricted bail for 10 months prior to the hearing. This allowance is not contested.
[17] Accordingly, the starting point of six years and three months (75 months) was reduced by 15 per cent for factors in the cultural report, and one month for time spent on bail. The end sentence was five years and three months’ imprisonment.
Law on appeal
[18] Section 250(2) of the Criminal Procedure Act 2011 states that a court must allow a sentence appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[19]In any other case, the Court must dismiss the appeal.10
9 At [15].
10 Criminal Procedure Act 2011, s 250(3).
[20] As has been emphasised by the Court of Appeal, the proper approach on a sentence appeal is as follows:11
[14] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed. The focus is on the sentence imposed, rather than the process by which it is reached. The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.
[21] The meaning of manifestly excessive, however, is not conceptually vague and should not be considered in a vacuum. As was noted in Tutakangahau v R:12
It is simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.
[22] Generally, there will be an error if the sentence is manifestly excessive, involved an error in law or principle, is plainly inappropriate, or proceeded on a materially wrong or mistaken understanding of the facts.
[23] An appellant must point to such an error, either intrinsic to the Judge’s reasoning, or as a result of additional material submitted on the appeal, which vitiates the sentencing decision.13 I remind myself that as an appeal focusses on the correction of error, it is not “a second shot at sentencing”.14
Was the six-year starting point too high?
[24] Mr Whyte, who presented the arguments for Mr Clover with care, submitted that the appropriate starting point for the lead charge should be five years, not six years’ imprisonment. On the other hand, Ms Hartstone’s submission was that the six-year starting point was the minimum available to the Judge—as had been her submission at the District Court sentencing. For the record, there is no issue with the
11 Campbell v R [2022] NZCA 579 (footnotes omitted).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].
13 R v Shipton [2007] 2 NZLR 218 (CA); and Te Aho v R [2013] NZCA 47 at [30].
14 Polyanszky v R [2011] NZCA 4 at [17].
further three-month uplift for the other two unrelated charges. Neither could there be. It was appropriate, if not lenient.
[25] Counsel agree that this offending clearly fell within band 2 of the three bands set out in R v Taueki,15 with a starting point range between five to 10 years. It will thus be evident that Mr Whyte’s proposed five year starting point places this offending at the very lowest end of band 2.
[26] Consistent with the approach in Taueki, I list and analyse the aggravating factors in this case:
(a)Vulnerability of the victim: the victim was a 74-year-old elderly man, described as frail, with mobility issues and using a walker. As the Judge observed in his conviction decision, Mr Clover was “immensely stronger than [the victim], much, much younger and very strong compared to a frail old man”.16 This is a particularly serious factor.
(b)Home invasion: the victim was in his own home either sitting or lying on his bed. Mr Clover’s co-offender entered first and a short time later it seemed nodded to Mr Clover to enter. Neither were invited. The victim had asked the co-offender to leave. He was entitled to expect peace and privacy in the security of his own room.
(c)Vigilante action: there had been some real or imagined slight or unacceptable behaviour by the victim earlier in the day. I understand the police conducted an investigation which concluded that the allegations were unsubstantiated and declined to take further action. In any case, nothing would justify Mr Clover taking the law into his own hands. The ‘law of the jungle’ has no place in New Zealand.
(d)Use of a weapon: Mr Clover used a steel bar, about a foot long, to carry out the attack.
15 R v Taueki, above n 7.
16 Conviction judgment, above n 3, at [34].
[27] All these factors, in my view are present to a high degree. Other aggravating features include:
(a)Multiple attackers: here, there were two attackers. The co-offender’s role was not insignificant and would have reinforced in the victim’s mind that he was outnumbered and overpowered with no chance of escape from his own accommodation.
(b)Premeditation: this was not spontaneous offending. Mr Clover had time to reflect on what he was doing. He armed himself with a weapon. His intention was to cause the victim grievous bodily harm as a result of what he had been told about the victim’s previous behaviour. However, the Judge noted “this was more hot-headed in the spur of the moment action”.17
(c)Extent of the violence: Mr Clover’s attack must be regarded as gratuitous, unprovoked and serious. He hit the victim’s arm at least half a dozen times with significant force. He also hit the victim’s thumb and fingers.
(d)Serious injury: as to serious injuries, the Judge noted that in his view they were present to a “moderate degree”. The broken right forearm required the insertion of a titanium rod, and his right little finger and right-hand ring finger bones were completely shattered, requiring re-fixing with “K wire” which, as recorded in the Victim Impact Statement, doctors advised are used only for “really serious breaks”. To a large degree, such injuries are an element of the charge, but they are significant and not trifling wounds.
(e)Attack to the head: the Judge was in no doubt that the iron bar was aimed at the victim’s head, which blow was deflected by the victim’s raised forearm. The Judge noted there was no actual blow to the head, and he did not seem to rely on this matter in aggravation.
17 Sentencing judgment, above n 1, at [8].
[28] Mr Whyte is probably correct that the most significant aggravating factors include the use of a weapon, home invasion and victim vulnerability. To that, I would add vigilante action. But the other factors cannot be ignored and none of them are trivial. When accumulated, they are telling.
[29] I accept that sentencing is not, as Mr Whyte argued, simply a matter of counting the number of aggravating features. It must also involve an analysis of their severity and significance. Having carried out this exercise, the conclusion must be that this was serious offending within band 2 of Taueki.
[30] Given the cumulative effect of the aggravating factors for Mr Clover, in the context of the cases relied upon by counsel, in my view the six-year starting point is entirely appropriate. The sentencing Judge took a restrained approach. Indeed, it might be called “generous and merciful”—as was the Crown’s oral submission.
[31] Against those aggravating factors, the three comparator cases referred to by counsel are helpful. I summarise those cases in the following paragraphs.
[32] The first case, Uncles v R, involved the lesser charge of wounding with intent to injure, which carries a maximum penalty of seven years’ imprisonment.18 The offender believed the 62-year-old victim had been having sexual contact with her 14-year-old son and forced entry into the victim’s home with a co-offender. The co-offender punched the victim causing him to fall to the ground. The victim was struck four times to the head. A noose from a rope was tied around his neck, strangling him until he passed out. The victim was hospitalised, with a week in intensive care and underwent a seven-hour operation. He had multiple facial injuries, including to his jaw and left eye. Plastic surgery was required with the insertion of a number of metal plates.
[33] The Court of Appeal upheld a starting point of five years’ imprisonment but considered it to be at the lower end of the available range. The Court noted that a more serious charge would have been justified; the starting point had to be adjusted (downwards) for the seven-year maximum sentence; and that the appellants were most
18 Uncles v R [2012] NZCA 144.
fortunate in this respect. I infer that the result would have been a much higher starting point if the offender was charged with the same charge that Mr Clover faces.
[34] Mr Clover’s offending was less serious than the offending in Uncles and the injuries suffered by the victim in the present case are not as serious or long-lasting. The six-year starting point for this more serious charge is consistent with the comments in Uncles, and the lesser charge in that case.
[35] The second case is Thompson v R which involved a similar charge of wounding with intent to cause grievous bodily harm.19 Mr Thompson was drinking with his father-in-law and challenged him to a fight. Mr Thompson used a dismantled metal basketball hoop to strike victim on head, knocking him unconscious. The victim suffered subdural and arachnoid haematomas and was unable to work, sustained ongoing dizziness but made a slow recovery.
[36] Unlike the present case, the offending was said to be in upper end of band 1, lower end of band 2 of Taueki. The five-year starting point was upheld on appeal. Mr Clover’s offending is, as all parties agree, within band 2 with more serious aggravating features than for Thompson. The six-year starting point sits well with Thompson.
[37] The third comparator case is Aitken v R which involved a charge of injuring with intent to cause grievous bodily harm carrying a maximum penalty of 10 years’ imprisonment.20 Mr Aitken meted out a violent and sustained assault on the victim. He punched him about 10 times to the upper head and body, knocking him unconscious so that he fell from a public bench on which he was sitting, onto the footpath. The attack continued. The victim was kicked twice in the head, struck twice to the head and was punched in the head two further times. The victim was knocked unconscious and sustained serious injuries, being permanently disabled as a result of the attack including losing vision in his right eye.
19 Thompson v R [2023] NZHC 718.
20 Aitken v R [2022] NZCA 593.
[38] The offending in Aitken was placed between bands 2 and 3 of Taueki. On appeal, the Court of Appeal held that the seven-year starting point could not be criticised and indeed might well be at the lower end of the available range. Although Aitken involved very serious injuries, in contrast to this case there was no weapon, no significant victim vulnerability, home invasion or multiple attackers. The starting point reflected the lesser maximum penalty available. I accept the Crown’s submission that if the lesser charge in Aitken attracted seven years, then here, six years’ starting point for a more serious charge cannot be criticised.
[39] Mr Whyte also raised the issue of parity of approach with Mr Clover’s co- offender, Mr McGaffin. In Mr McGaffin’s sentencing indication and subsequent sentencing, Judge PP Crayton rejected a lower starting point in the range of four to five years’ imprisonment and adopted the Crown’s submission of a six-year starting point. He also analysed the offending in much the same way as I have just set out. He accepted that Mr McGaffin entered the property first, would have known what was about to take place, and was present throughout.
[40] Mr McGaffin was also charged with an earlier theft of the victim’s computer,21 and demanding the victim’s cell phone with menaces.22 After fixing a six-year starting point for the serious charge, the Judge declined to a make separate uplift for those two charges and concluded that they were properly contained within the six-year starting point.
[41] Mr Whyte’s ingenious submission was that the six-year starting point for Mr McGaffin should be read in the context of the two other charges that he faced and reduced to an effective five or five-and-a-half year starting point. So too, argued Mr Whyte, should Mr Clover’s starting point be reduced to ensure parity.
[42] I do not read Judge Crayton’s decision in that way. Clearly, he was taking a six-year starting point for the lead charge, the same as faced by Mr Clover, and he simply declined to make any further uplift for the relatively minor other two charges.
21 Crimes Act, ss 219 and 223(c). Maximum penalty of one year imprisonment.
22 Crimes Act, s 239(2). Maximum penalty of seven years’ imprisonment.
[43] As I read Judge Marshall’s sentencing of Mr Clover, he was wedded to the six-year starting point for Mr McGaffin already set by another Judge. Given Mr Clover’s part in the attack, and his clearly leading role, a higher starting point could have been justified. The Judge was clearly alert to the issue of parity, and bearing in mind the aggravating features, concluded that a six-year starting point was appropriate.
[44] With great respect, there is nothing in Mr Whyte’s submission as to disparity of approach. In fact, if anything, Mr McGaffin’s earlier sentencing worked in Mr Clover’s favour and may well have precluded the imposition of an even higher starting point.
[45] All in all, there is no demonstrated error in the Judge’s approach in fixing the starting point.
Was the 15 per cent reduction for the cultural report appropriate?
[46] Different counsel for Mr Clover at the time of the District Court sentencing submitted that a 15 to 20 per cent allowance should be made for the significant factors outlined in the cultural report. I will not elaborate on them. They raise some matters of deep privacy for Mr Clover. Suffice to say, I do not see how the Judge can be said to be in error when he did exactly as suggested by Mr Clover’s counsel.
[47] Mr Whyte submitted, but without vigour, that bearing in mind Mr Clover’s apparent commitment to rehabilitation and counselling, the allowance should have been 20 per cent. In my view, the Judge’s approach cannot be criticised because it was appropriate and in any case was very much within the range and is without error.
Should an allowance be given for impact of prison sentence on Mr Clover’s five- year-old daughter?
[48] This was not a matter raised by defence counsel at the sentencing. Therefore, Mr Whyte does not criticise the sentencing Judge for not addressing it. Nevertheless, he raises this matter, for the first time, on appeal.
[49] With respect, My Whyte initially provided no new evidence other than to refer to the various Provision of Advice to Courts (PAC) reports prepared for Mr Clover. In one, there is a comment as to a close relationship with his daughter. At the time of this offending, Mr Clover and the child’s mother were still together. The relationship has since ended. Following their separation, Mr Clover maintained full time care of his daughter and they had been living with Mr Clover’s mother for four to five months at the time of the PAC report.
[50] Another PAC report notes that Mr Clover makes daily phone calls with his daughter. It is clear that he is far from a poor father.
[51] When this matter was raised with me, I indicated that there was simply an insufficient evidential foundation for me to provide any additional reduction. I did not know why Mr Clover had custody of his daughter, how often he had been looking after her and whether in practice it was the child’s grandmother that was providing full time care. I was advised during the hearing that his daughter is now in the care of Mr Clover’s younger brother and wife in Gisborne who have children about the same age as Mr Clover’s daughter.
[52] I made plain to counsel that further information would be required for me to even consider the matter. This is clearly a developing area of sentencing law. The proper approach has recently been highlighted in Philip v R.23 There, the Supreme Court upheld a reduction of about 10 per cent for the impact the sentence would have on the appellant’s young child who had developed a secure attachment with him. This was a significant reduction in the circumstances of that case where there was evidence, including from a clinical psychologist.
[53] More recently in Milne v R,24 the Court of Appeal, in the light of further evidence in a cultural report which the Court was prepared to accept, concluded that a six per cent reduction was available to Mr Milne in consideration of his two young children who had yet to form a secure attachment with him. The Court considered the loss of opportunity for them to form such an attachment is, itself, a significant factor.
23 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
24 Milne v R [2023] NZCA 491.
[54] This issue was recently before me in Smith v Ministry of Social Development.25 Amongst other things, I noted that Courts are not immune to the effects of incarceration on young children. In that case, a five per cent allowance for the effect of imprisonment on Mr Smith’s young baby, given his significant caregiving responsibilities, was held to be appropriate in the circumstances and a higher allowance was not justified.
[55] However, I adjourned the hearing so that Mr Whyte, after conferring with Ms Hartstone for the Crown, could assemble any further evidence that might support this new argument.
[56] Subsequently, Mr Whyte filed a detailed affidavit from Mr Clover’s mother. She explains that Mr Clover’s commitment to his new-born daughter and his fathering generally, surprised her—for the good. She deposes that he was an excellent father, took full responsibility for looking after her, feeding her, bathing her, and taking her to kindergarten and medical or other appointments. He took the role of a primary caregiver.
[57] She also deposes that her son’s partner left without notice and moved to another part of New Zealand, with a new partner mid-last year. Since that time, the mother has had very little contact with her child although she has had some phone contact, usually initiated by the grandmother. Apparently, the mother seems uninterested in her child and sadly the young girl has “gotten used to her mother not talking to her or breaking promises”.
[58] The mother’s grandmother has also kept in contact. I understand that she has indicated that the mother experienced the same situation herself when early in her life, her mother left her.
[59] After their separation and becoming a solo dad, Mr Clover voluntarily completed a Ministry of Justice Parenting Information Programme.
25 Smith v Ministry of Social Development [2024] NZHC 696.
[60] Since being in custody, he phones his daughter regularly. She is excited when Mr Clover calls. He has explained to her that he is in prison.
[61] In the meantime, the daughter has returned from Gisborne and is living with her grandmother, Mr Clover’s mother. The grandmother is also looking after three other grandchildren. They are based in Palmerston North. She is attending a local primary school and is apparently doing very well. She is said to be still “very much a daddy’s girl”. The grandmother is in the process of obtaining parenting orders for day- to-day care of Mr Clover’s daughter.
[62] The Crown maintains formal opposition to this further affidavit being considered. In the Crown’s view, it could have been obtained for sentencing. It does, however, contain further and new information and, at least partially, is an update on the situation after Mr Clover’s imprisonment.
[63] Ms Hartstone for the Crown recognises that the effects of imprisonment on children is an evolving area of the law. She accepts that the Courts should consider this issue as a separate factor but in her view, this should have been raised at sentencing and then supported by an evidential foundation.
[64] I accept that ordinarily such information, as is now before the Court, could hardly said to be fresh or unobtainable by the reasonable diligence of counsel at sentencing. That said, it contains some new important information and in the interests of justice I propose to allow its introduction.26
[65] What is clear in the circumstances is that Mr Clover is a very committed father, especially in the context of a mother who has left the family and who now seems to play a virtually non-existent role in her daughter’s life. I accept that there is a strong bond between Mr Clover and his daughter. The chance to further maintain and further develop that bond in these unusual circumstances will, of course, be interrupted by imprisonment and inevitably so. Nevertheless, it is an important and significant matter that ought to have been raised at sentencing and if so, in my view, would have justified a separate allowance.
26 Criminal Procedure Act, s 335(1)(c).
[66]I am assisted by the discussion in Philip v R:27
…Section 8(i) directs the court to consider various personal circumstances, namely, “the offender’s personal, family, whanau, community, and cultural background in imposing a sentence … with a partly or wholly rehabilitative purpose”. A sentencing approach which recognises the importance to a child of the familial relationship is also supported by the United Nations Convention on the Rights of the Child (Children’s Convention). The Children’s Convention emphasises the importance for children of growing up in a family environment and imposes an obligation on courts to treat the best interests of the child as a “primary consideration”.
[67]The Supreme Court also sets out the relevant principles in Philip as follows:
[50] The Court of Appeal in Campbell v R stated that it was “uncontroversial” to say that the impact imprisonment has on the offender’s children is a relevant factor in considering the appellant’s personal circumstances. The Court also observed that, the “weight to be accorded that factor depends on the circumstances. The relevant circumstances include the type of the offending and the circumstances of the child or children.
(Footnotes omitted)
[68] I return to the present case. I accept that in the circumstances of this appeal, the most that could be recognised for the impact on Mr Clover’s daughter would be five per cent. I propose to make a further reduction of three months, leading to an end sentence of five years’ imprisonment. Ms Hartstone was clear in her respectful view that were I to do so, I would effectively be “tinkering” with the sentence which, on its face, is not manifestly excessive. I also note the point that it is not helpful to become preoccupied with one disaggregated component of sentencing and to lose sight of the real question which is whether the sentence is manifestly excessive.
[69] However, this was an important argument for Mr Clover, which should have been advanced at sentence, and it was not. I stress that the focus here is on the child. Her best interests should be a primary consideration. In these unusual circumstances the additional information is helpful, and I propose to reduce the sentence to one of five years’ imprisonment to reflect this additional mitigating factor.
[70]To that limited extent, the appeal is successful.
27 Philip v R, above n 23, at [52] (footnotes omitted).
Result
[71] The original sentence of five years three months’ imprisonment is quashed and replaced with a sentence of five years’ imprisonment.
Becroft J
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