Citation: Regina v AB; Regina v Clifford [2005] NSWCCA 360
Court: NSW Court of Criminal Appeal
Date: 27 October 2005
Judge(s): McClellan CJ at CL, Grove J, Hislop J
Background
Two respondents were sentenced in the Supreme Court at Port Macquarie following the death of one victim and serious injury to another during an incident involving a loaded shotgun at Macksville on 26 July 2003. The first respondent (referred to as AB, whose identity is subject to suppression) pleaded guilty to murder and maliciously inflicting grievous bodily harm. The second respondent, Michael Douglas Clifford, was convicted at trial of manslaughter and maliciously inflicting grievous bodily harm after being acquitted by direction of murder.
The sentencing judge imposed sentences of 14 years (murder) and 5 years and 6 months (GBH) for AB, with both terms running concurrently from the same commencement date. Clifford received 6 years for manslaughter and 3 years for GBH, also running concurrently.
The Director of Public Prosecutions appealed both sets of sentences under section 5D of the Criminal Appeal Act 1912, contending that the sentences were manifestly inadequate and that errors of principle had been made in assessing objective seriousness, weighting subjective factors, and structuring the sentences.
Legal Issues
- Whether the sentencing judge correctly assessed the objective seriousness of the offences, particularly the introduction of a loaded firearm into a physical confrontation
- Whether excessive weight was given to the respondents' subjective circumstances in mitigation
- Whether the sentencing judge erred by failing to accumulate (that is, partially stack) the sentences for each count
- Whether the sentencing judge's finding that AB had not contemplated the possibility of the shotgun being discharged was inconsistent with the jury's verdict convicting him of murder
Decision
The Court of Criminal Appeal allowed both Crown appeals and quashed the original sentences. McClellan CJ at CL, with Grove J and Hislop J agreeing, found that the sentencing judge had not adequately reflected the objective gravity of offences committed when a loaded shotgun was brought into a physical melee, resulting in death and serious injury.
On the question of AB's state of mind, the Court found that the sentencing judge's characterisation of AB as not having turned his mind to the possibility of the gun discharging was inconsistent with a verdict of murder, which necessarily required the jury to find the requisite intent. This inconsistency infected the assessment of objective seriousness for AB's sentence.
Regarding the failure to accumulate sentences, the Court noted that the Crown had conceded at first instance that concurrent sentences would be appropriate, and this concession was acknowledged. The Court accepted this concession in relation to Clifford's sentence, declining to disturb the concurrent structure on that ground alone. However, the Court's primary concern was with the manifestly inadequate starting point.
For AB, the murder sentence was restructured to commence one year later, reflecting the period spent on remand and the timing of his guilty plea. For Clifford, the Court determined that the appropriate sentence for manslaughter was nine years, but applied the principle that resentencing following a successful Crown appeal should result in a sentence towards the lower end of the available range, settling on seven and a half years. The sentences on the lesser GBH counts were left undisturbed for both respondents.
Orders Made
In relation to AB:
- Appeal allowed and sentences quashed
- Count 1 (murder): 14 years' imprisonment commencing 26 July 2004; non-parole period of 9 years and 6 months expiring 25 January 2014; balance of 4 years and 6 months expiring 25 July 2018
- Count 2 (GBH): 5 years and 6 months commencing 26 July 2003; non-parole period of 2 years and 10 months expiring 25 May 2006; balance of 2 years and 8 months expiring 25 January 2009
In relation to Clifford:
- Appeal allowed and sentences quashed
- Count 1 (manslaughter): 7 years and 6 months commencing 26 July 2003; non-parole period of 4 years and 6 months expiring 25 January 2008; balance of 3 years expiring 25 January 2011
- Count 2 (GBH): 3 years commencing 26 July 2003; non-parole period of 1 year and 8 months expiring 25 March 2005; balance of 1 year and 4 months expiring 25 July 2006
Key Takeaways
- A sentencing judge's finding about an offender's state of mind that is inconsistent with the jury's verdict will constitute an error of principle capable of vitiating a sentence on Crown appeal.
- The Court of Criminal Appeal confirmed that introducing a loaded firearm into a physical confrontation is a seriously aggravating feature that must be adequately reflected in the objective assessment of an offence's gravity.
- Where a Crown appeal against sentence succeeds, the Court will generally impose a sentence towards the lower end of the range that should have applied, in recognition of the double jeopardy faced by the respondent.
- A Crown concession at first instance that concurrent sentences were appropriate will ordinarily be respected on appeal, even where error has been found on other grounds.
- Resentencing following a successful Crown appeal does not simply reproduce what the sentencing court should have originally imposed; the applicable range is moderated downward to account for double jeopardy principles.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 18(1)(a), 19A(1), 24, 33, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Hammoud (2000) 118 A Crim R 66
- Johnson v The Queen (2004) 78 ALJR 616
- Pearce v The Queen (1998) 194 CLR 610
- R v Baker [2000] NSWCCA 85
- R v Gordon (1994) 71 A Crim R 459
- R v Hearne [2001] NSWCCA 37
- R v Henry (1999) 46 NSWLR 346
- R v MA [2004] NSWCCA 92
- R v KM [2004] NSWCCA 65
- R v Musso [2002] NSWCCA 487
- R v Pham (1991) 55 A Crim R 128
- R v SDM [2001] NSWCCA 158
- R v Tran [1999] NSWCCA 109
- R v Wall [2002] NSWCCA 42
- Roper v Simmons 543 US 2005
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Weininger v The Queen (2003) 212 CLR 629