Shannon Ian Clifford v The Queen

IN THE SUPREME COURT OF NEW ZEALAND

SC 89/2011
[2011] NZSC 125

SHANNON IAN CLIFFORD

THE QUEEN

Court: Blanchard, Tipping and William Young JJ

Counsel: G J King and Q C S Hix for Applicant
M H Cooke for Crown

Judgment: 18 October 2011

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

The applicant was convicted of sexual violation by rape. He had conceded at his trial that the complainant had not consented. His defence was that he had an honest and reasonable belief that there was consent.
The Judge sentenced the applicant to imprisonment for five years. The Judge expressly gave him credit for the fact that there had been no violence used beyond that inherent in the act of rape. The sentencer also gave him credit for the fact that he had held an honest belief that there was consent.[1]
[1] R v Clifford DC Ashburton CRI-2010-009-4143, 24 January 2011.
On a Crown appeal, the Court of Appeal[2] increased the sentence to seven years. It correctly identified that the absence of additional violence is not a mitigating factor. It also considered, correctly, that s 9(3) of the Sentencing Act 2002 required that an intoxicated belief in consent was not to be treated as a mitigating factor. It said that the Judge had clearly attributed the applicant’s belief in consent to his intoxication.
[2] R v Clifford [2011] NZCA 360.
The proposed ground of appeal is that the sentence imposed by the Court of Appeal is manifestly excessive because there were factors other than intoxication which contributed to inducing the applicant’s mistaken and unreasonable belief in consent, and that s 9(3) does not preclude them from being taken into account by way of mitigation.
Whilst we agree that s 9(3) allows any such operating features to be taken into account, it was fully open to the Court of Appeal to reach the view, as it did, that the Judge had sentenced the applicant on the basis that it was his state of intoxication and not other matters which caused him to believe, unreasonably, that the complainant was consenting.
The proposed appeal therefore raises no question of public or general importance and there is no appearance of any substantial miscarriage of justice.

Solicitors:
Quentin Hix Legal Limited, Timaru for Applicant
Crown Law Office, Wellington

CaseChat Overview and Summary

The Supreme Court of New Zealand dealt with an appeal from Shannon Ian Clifford against a sentence imposed by the Court of Appeal. Clifford had been convicted of sexual violation by rape, with the defence that he held an honest and reasonable belief in the complainant's consent. The trial judge sentenced him to five years in prison, taking into account the absence of additional violence and his honest belief in consent. The Crown appealed the sentence, and the Court of Appeal increased it to seven years, determining that the absence of additional violence was not a mitigating factor and that the applicant's intoxication-induced belief in consent could not mitigate the sentence under section 9(3) of the Sentencing Act 2002.

The legal issues before the Supreme Court were whether the Court of Appeal's sentence was manifestly excessive and whether factors other than intoxication that contributed to the applicant's mistaken belief in consent could be considered for mitigation. The Supreme Court held that while section 9(3) allowed for other factors to be considered, the Court of Appeal was justified in concluding that the trial judge had based the sentence primarily on the applicant's state of intoxication. The court found that the appeal did not raise a question of public or general importance and did not indicate any substantial miscarriage of justice.

Based on the reasoning, the Supreme Court dismissed the application for leave to appeal. The Court of Appeal's sentence of seven years imprisonment for Clifford was upheld as it was deemed to be appropriate under the circumstances, considering the statutory framework and the facts of the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established