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R v Clancy

R v Clancy

Case [2021] NZHC 1021 7 May 2021

Minimum Period of Imprisonment

Child Victim

Murder

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-070-1709

[2021] NZHC 1021

THE QUEEN

v

ADRIAN CLANCY

Hearing: 7 May 2021

Counsel:

R W Jenson and J Sutton for Crown K Tustin for Defendant

Sentence:

7 May 2021

SENTENCING NOTES OF WHATA J

Solicitors: Pollett Legal, Tauranga

R v CLANCY [2021] NZHC 1021 [7 May 2021]

[1] Mr Clancy, you were found guilty of the murder of Sadie-Leigh Gardner. Given that Sadie-Leigh was only 17 months old when you killed her, a sentence of life imprisonment is inevitable, as your counsel quite properly accepts. The remaining issue is the minimum term of imprisonment (MPI) you must serve before you are eligible for parole. Again, given Sadie-Leigh’s young age, s 104 of the Sentencing Act 2002 demands that I impose a minimum period of imprisonment of 17 years unless it would be manifestly unjust to do so.1 To determine whether that would be manifestly unjust, I must, first, describe the key facts of the murder. Second, take into account your personal circumstances. Third, identify the minimum period of imprisonment I would impose if s 104 did not apply; and, finally, if the minimum period of imprisonment would be less than 17 years, otherwise, I must then decide whether it would be manifestly unjust to impose a 17-year minimum period of imprisonment on you.2

[2] Before I go further, I want to acknowledge Sadie-Leigh’s family. Her loss will have caused you incomprehensible harm and I wish to acknowledge your loss and express my deepest sympathies to you.

Facts

[3] I turn then to the facts of the murder. As the trial Judge, one of my duties today is to set out clearly the facts on which I am sentencing you. In working out those facts, I must accept as true all the facts the jury needed to have accepted, at a minimum, to find you guilty of murder.3 But beyond that, I can only accept as true anything that

1 Sentencing Act 2002, s 104(1)(g): “The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years […] unless it is satisfied that it would be manifestly unjust to do so […] if the deceased was particularly vulnerable because of his or her age […]”. The defence does not suggest there is any dispute that s 104(1)(e) is engaged in this case. While vulnerability for the purposes of s 104(1)(g) is a fact-specific inquiry (Graham v R [2011] NZCA 131 at [13]), and the focus with child victims will be on whether they are particularly vulnerable because of their age (Filihia v R [2014] NZCA 401 at [115]), on no occasion – unsurprisingly – has it ever been found, or in fact (it appears) ever suggested that s 104(1)(g) will not apply in the case of an infant victim: see Little v R [2007] NZCA 491, “if [s 104(1)(g] does not…

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 R v Clancy

Details

AGLC: R v Clancy [2021] NZHC 1021
Case: [2021] NZHC 1021
Decision Date: 7 May 2021

CaseChat Overview and Summary

Adrian Clancy was convicted of murdering Sadie-Leigh Gardner, who was 17 months old at the time of her death. The case, heard in the High Court of New Zealand Rotorua Registry, saw Clancy found guilty of murder, leading to the critical issue of determining the minimum term of imprisonment (MPI) he must serve before being eligible for parole. The legal issues revolved around the application of Section 104 of the Sentencing Act 2002, which mandates a minimum period of imprisonment of at least 17 years for murders involving particularly vulnerable victims due to their age, unless it would be manifestly unjust to do so.

The court considered the nature of Clancy's crime, his personal circumstances, and compared the case to others where similar sentences had been imposed. The court found that the murder of Sadie-Leigh was out of character for Clancy, who had no prior history of violence, and noted mitigating factors such as his immediate attempt to aid Sadie-Leigh and his otherwise good character. However, the court also highlighted Clancy's lack of remorse and continued denial of responsibility, which are significant in determining the appropriate sentence. The court concluded that imposing a 17-year minimum period of imprisonment, as required by Section 104, was not manifestly unjust given the circumstances of the murder and Clancy's personal background.

Ultimately, the court sentenced Clancy to life imprisonment with a minimum period of 17 years, reflecting the need for strong deterrence and denunciation in cases involving the murder of particularly vulnerable victims.

Orders