R v Clifford

Case [2011] NZCA 360


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NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA88/2011 [2011] NZCA 360

BETWEEN  THE QUEEN Appellant

ANDSHANNON IAN CLIFFORD Respondent

Hearing:         20 June 2011

Court:            O'Regan P, Chambers and Arnold JJ

Counsel:         C L Mander and M H Cooke for the Appellant

G J King and Q C S Hix for Respondent

Judgment:      3 August 2011 at 10.30 am

JUDGMENT OF THE COURT

A        Leave to appeal is granted. B The appeal is allowed.

C        The sentence of five years imprisonment imposed in the District Court is

quashed and replaced with a sentence of seven years imprisonment.

REASONS OF THE COURT

(Given by O’Regan P)

R V SHANNON IAN CLIFFORD COA CA88/2011 [3 August 2011]

Table of Contents

Para No

Introduction  [1] Guideline judgments  [2] Issues on appeal  [5] Facts  [10] Sentencing remarks  [15] Were there grounds for an honest or reasonable

belief in consent?  [18]

Reasonable belief and intoxication  [22] Lack of actual violence  [32] What is the appropriate sentence?  [33] Starting point  [35] Impact of Hessell (SC) on guideline judgments  [45] Result       [64]

Introduction

[1]      The respondent, Mr Clifford, was found guilty after a jury trial of one count of sexual violation by rape.  The judge who presided at his trial, Judge Philip Moran, sentenced him to imprisonment for a term of five years.1     The Solicitor-General seeks leave to appeal against that sentence on the grounds that it was manifestly inadequate and wrong in principle.

Guideline judgments

[2]      In 2010, this Court issued a guideline judgment in relation to sentencing for sexual offences, R v AM.2    As the Crown’s application required us to consider the application of the guidelines in R v AM, we took the opportunity to consider whether

the decision of the Supreme Court in Hessell v R3  impacts on R v AM and other

1      R v Clifford DC Ashburton CRI-2010-009-4143, 24 January 2011.

2      R v AM(CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.

3      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

guideline judgments issued by this Court and on this Court’s approach to sentence appeals.  We asked counsel to make submissions to us on those matters.  We made a similar request in the context of another appeal, Flavell v R,4  involving another guideline judgment, R v Taueki.5   (For ease of reference we will refer to the Supreme Court’s  decision  in  Hessell  v  R  as  Hessell  (SC)  and  this  Court’s  decision  in R v Hessell6 as Hessell (CA).)

[3]      We are issuing our judgment in Flavell v R at the same time as this judgment. In the present appeal, Mr King made submissions on the Hessell (SC) issues and Mr Hix made submissions in relation to the respondent’s own appeal.  Counsel for Mr Flavell, Mr Muston, also made submissions on the Hessell…

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R v Clifford [2011] NZCA 360
Case
[2011] NZCA 360
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CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v Clifford involved an appeal by the Solicitor-General against the sentence imposed on Shannon Ian Clifford, who was found guilty of sexual violation by rape. The trial judge sentenced Clifford to five years imprisonment, but the Solicitor-General argued that the sentence was manifestly inadequate and wrong in principle. The Court of Appeal granted leave to appeal and allowed the appeal, replacing the sentence with seven years imprisonment. The Court found that the trial judge erred in treating the defendant's intoxication as a mitigating factor and in considering the absence of actual violence during the rape as a mitigating factor. The Court also considered the impact of the Supreme Court decision in Hessell v R on guideline judgments and concluded that it did not call for any change in approach to guideline judgments issued by the Court of Appeal or to the way in which the Court dealt with sentence appeals.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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