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7
Court of Criminal Appeal 28 February 2008

Clare v R

[2008] NSWCCA 30

Also reported as 181 A Crim R 450
Sexual offencesHomicide
CRIMINAL LAW PRINCIPLE OF TOTALITY IN SENTENCING SPECIAL CIRCUMSTANCES IN SETTING NON PAROLE PERIOD

Citation: Clare v R [2008] NSWCCA 30
Court: New South Wales Court of Criminal Appeal
Date: 28 February 2008
Judge(s): McClellan CJ at CL, Hall J, Price J

Background

The applicant was convicted of manslaughter and sexual intercourse with a child under ten years of age, following the death of a three-year-old boy in his care in September 2003. The applicant had pleaded guilty to the sexual intercourse count and was acquitted of murder at trial, with the jury returning a verdict of manslaughter. The sentencing judge found that death was caused by anal intercourse inflicted on the child.

At the time of sentencing for these offences, the applicant was already serving a sentence for sexual assaults committed against the victim's six-year-old sister on the previous day. Those prior sentences carried a non-parole period expiring in October 2015, which became the commencement date for the new sentences.

The sentencing judge imposed a fixed term of 14 years on the sexual intercourse count and, on the manslaughter count, a non-parole period of 18 years and 9 months with a balance of term of 6 years and 3 months, all commencing in October 2015. The applicant sought leave to appeal against these sentences.

  • Whether the sentencing judge misapplied the principle of totality, given the applicant was already serving sentences for related offences committed the day before
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of term
  • Whether the overall sentence was manifestly excessive
  • Whether the manslaughter offence was correctly characterised as falling in the worst class of that offence

Decision

On the first ground, the Court of Criminal Appeal accepted that the sentencing judge had erred in the application of the totality principle. The non-parole period for the manslaughter count did not maintain the appropriate statutory ratio when the totality of all sentences was considered. The Court reduced the non-parole period for that count from 18 years and 9 months to 15 years and 9 months, while leaving the head sentence intact.

On the question of special circumstances, the Court noted that a finding of special circumstances permits a sentencing judge to vary the standard proportion between the non-parole period and the total sentence. The Court's adjustment to the non-parole period on totality grounds addressed this issue consequentially, and the appeal succeeded on this ground.

The Court rejected the third ground, finding the overall sentence was not manifestly excessive. McClellan CJ at CL, writing for a unanimous court, affirmed the sentencing judge's characterisation of the manslaughter as falling in the worst class of that offence. Manslaughter is recognised as an offence of protean character, ranging from the least serious unlawful acts to conduct just short of murder. The Court was satisfied that the anal penetration of a three-year-old resulting in death, carried out for sexual gratification, represented an offence of the utmost gravity. The applicant's subjective circumstances, including a history of being abused and cognitive limitations, did not justify any reduction.

Orders Made

  • Leave to appeal granted
  • Appeal upheld on count 2 (manslaughter): the non-parole period reduced to 15 years and 9 months; the balance of the sentence otherwise confirmed
  • Appeal otherwise dismissed
  • Parole eligibility date set at 16 July 2031

Key Takeaways

  • The Court of Criminal Appeal confirmed that the totality principle requires a sentencing court to ensure the overall non-parole period, across all sentences, reflects a proper statutory ratio, even where new sentences are imposed to commence after an existing non-parole period expires.
  • Manslaughter occupies an unusually wide sentencing range, from conduct barely above negligence to conduct barely short of murder, and the appropriate sentence depends heavily on the specific facts.
  • In characterising the offence as the worst class of manslaughter, the court found that the sexual abuse of a three-year-old child resulting in death by anal penetration stands at the most serious end of that already broad spectrum.
  • Adverse subjective circumstances, including cognitive limitations and a history of childhood abuse, do not automatically reduce sentences where the objective gravity of the offence is extreme.
  • Upholding the head sentence while reducing only the non-parole period illustrates that a successful totality argument does not necessarily lead to a reduction in the total term of imprisonment imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 19A, 24, 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Serious Sex Offenders) Act 2006 (NSW)

Cases:
- Close v Regina (1992) 65 A Crim R 55
- Mill v The Queen (1988) 166 CLR 59
- Qing An v R [2007] NSWCCA 53
- R v Adamson (2002) 132 A Crim R 511
- R v Cahyadi (2007) 168 A Crim R 41
- R v Forbes [2005] NSWCCA 377
- R v Guider [2002] NSWSC 756
- R v Hoerler (2004) 147 A Crim R 520
- R v Holder [1983] 3 NSWLR 245
- R v Ibrahim [2005] NSWCCA 43
- R v MMK (2006) 164 A Crim R 481
- Simpson v Regina (1992) 61 A Crim R 58