Citation: Regina v Clifford, Regina v AB [2005] NSWSC 521
Court: Supreme Court of New South Wales
Date: 31 May 2005
Judge(s): Adams J
Background
On 26 July 2003, Kane Mason was shot and killed by AB with a shotgun during a street altercation in Macksville. Moments before, AB also shot Darren Ward in the head. Both shootings occurred in the presence of Michael Clifford, who had initiated a drunken, largely ineffectual confrontation with the victims.
AB pleaded guilty to murder and to maliciously causing grievous bodily harm to Mr Ward. Clifford proceeded to trial and was acquitted of murder by direction of the judge, but the jury convicted him of manslaughter and of maliciously causing grievous bodily harm to Mr Ward. At the time of the offences, AB was a juvenile.
The sentencing proceedings required the court to assess the individual culpability of each offender against the backdrop of what was a single violent episode with multiple legal consequences.
Legal Issues
- What sentences were appropriate for AB and Clifford respectively, having regard to their differing roles in the offences?
- What weight should be given to guilty pleas, youth, and other mitigating or aggravating factors in the sentencing exercise?
- What is the correct meaning and application of the statutory phrase "standard non-parole period" under the Crimes (Sentencing Procedure) Act 1999?
- Whether AB's sentences should be served in a juvenile detention centre pursuant to the Children (Criminal Proceedings) Act 1987.
Decision
Adams J carefully distinguished between the roles of the two offenders. AB was the shooter and pleaded guilty to murder; the court found his culpability substantially higher than Clifford's. Clifford had initiated a minor street confrontation but was unaware AB was armed, had no part in the actual shooting, and was acquitted of murder by direction. His conviction for manslaughter reflected the jury's assessment of a lesser degree of criminal responsibility.
The court applied a fifteen per cent utilitarian discount to the sentences of both offenders to reflect the benefit of AB's guilty pleas. The sentences were rounded down slightly from the strict arithmetic outcome of that calculation. Adams J also found that special circumstances existed in each case, warranting an adjustment to the standard ratio between non-parole period and total sentence.
On the question of the "standard non-parole period," Adams J took care to flag the phrase's peculiar statutory character. He noted that, far from carrying its natural meaning in criminal law discourse, the term is a technical statutory construct under the Crimes (Sentencing Procedure) Act 1999 whose precise meaning is neither intuitive nor straightforward. The court indicated it used inverted commas around the phrase deliberately, to signal its departure from ordinary meaning and to guard against the risk of conflating statutory and colloquial senses.
Regarding AB's youth, the court directed that his sentences be served in a juvenile detention centre until he reached the age of 21 years, in accordance with section 19(1) of the Children (Criminal Proceedings) Act 1987.
Orders Made
AB:
- Maliciously causing grievous bodily harm to Mr Ward: sentence of 5 years and 6 months commencing 26 July 2003, with a non-parole period of 2 years and 10 months expiring 25 May 2006; balance of term expiring 25 January 2009.
- Murder of Mr Mason: sentence of 14 years commencing 26 July 2003, with a non-parole period of 9 years and 6 months expiring 25 January 2013; balance of term expiring 25 July 2017.
- Pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987, sentences to be served in a juvenile detention centre until AB reaches the age of 21 years.
Clifford:
- Maliciously causing grievous bodily harm to Mr Ward: sentence of 3 years commencing 26 July 2003, with a non-parole period of 1 year and 8 months expiring 25 March 2005; balance of term expiring 25 July 2006.
- Manslaughter of Mr Mason: sentence of 6 years commencing 26 July 2003, with a non-parole period of 3 years expiring 25 July 2006; balance of term expiring 25 July 2009.
Key Takeaways
- The Supreme Court sentenced two co-offenders to materially different terms, reflecting that one was the shooter who pleaded guilty to murder while the other, unaware his companion was armed, was convicted of manslaughter after a jury trial.
- A fifteen per cent utilitarian discount was applied to account for the benefit derived from guilty pleas, with sentences then rounded modestly downward from the precise arithmetic result.
- The phrase "standard non-parole period" is a technical statutory term under the Crimes (Sentencing Procedure) Act 1999 whose meaning is substantially removed from its apparent plain-English sense; Adams J treated its obscurity as a reason to handle it with particular care in the sentencing exercise.
- Under s 19(1) of the Children (Criminal Proceedings) Act 1987, a juvenile offender convicted of murder may be directed to serve sentences in a juvenile detention centre until reaching the age of 21.
- Individual culpability, assessed by reference to each offender's actual role in the events, remained the central organising principle governing the disparity in outcomes between the two offenders.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 19(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Hearne 124 A Crim R 438
- R v AO (2003) 138 A Crim R 189
- R v Pellew [2004] NSWCCA 434
- R v Thomson & Houlton (2000) 49 NSWLR 383; 115A A Crim R 104
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Veen v The Queen (No 2) (1988) 164 CLR 465