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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.
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…
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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AGLC
R v Clifford [2011] NZCA 360
Case
[2011] NZCA 360
Decision Date
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.