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Court of Criminal Appeal 1 August 2012

Clark v R

[2012] NSWCCA 158

Homicide
CRIMINAL LAW APPEAL MURDER ACCUSED (FATHER) NO MERIT IN CONVICTION GROUNDS APPEAL AGAINST SENTENCE

Citation: Clark v R [2012] NSWCCA 158
Court: Court of Criminal Appeal, New South Wales
Date: 1 August 2012
Judge(s): Basten JA, Johnson J, Garling J

Background

The applicant pleaded guilty to the murder of her grandfather, Ernest Richard Clark, who was shot twice at his home in Bexley on the night of 29 April 2005. The victim was first shot in the neck and then, at close range, in the head. He died in hospital the following day. Patten AJ sentenced the applicant in August 2007 to a non-parole period of 14 years, with a balance of term of six years.

The applicant, who appeared unrepresented, also gave evidence as a Crown witness at two trials of her father, Michael Rex Clark, who was ultimately convicted of murder and sentenced to 30 years' imprisonment with a non-parole period of 24 years.

By a Notice of Appeal filed in August 2011, the applicant sought leave to appeal against both her conviction and her sentence. She raised multiple grounds across both limbs of the appeal. By the time of the hearing, she had adopted a female gender identity and was known as Stephanie Elizabeth Clark.

  • Whether a miscarriage of justice arose from the conduct of the applicant's legal representatives, in particular their failure to challenge the admissibility of listening device recordings and an electronically recorded interview (ERISP)
  • Whether the sentencing judge erred by admitting listening device evidence, ERISP material, and prior court transcripts given the applicant's alleged impairment at relevant times
  • Whether the sentencing judge erred in rejecting a provocation-related claim at the sentencing hearing
  • Whether the applicant's post-sentence transgender status in custody constituted grounds to reduce her sentence on appeal

Decision

Conviction grounds: The Court found no merit in any of the grounds directed at the conviction. Johnson J examined the applicant's complaint that her lawyers had misrepresented her position and failed to challenge key evidence, but concluded that the applicant had been given prudent and realistic advice to plead guilty. No miscarriage of justice arising from legal representation was established.

The Court also rejected the grounds alleging that listening device evidence, ERISP material, and prior court transcripts had been wrongly admitted at the sentencing hearing. No error by Patten AJ was identified in the admission or reliance on that evidence. The findings made by the sentencing judge were not unfavourable to the applicant, and the Court saw no basis on which the plea of guilty should be vacated or a new trial ordered.

Sentence grounds: The Court rejected the provocation-related ground, finding that the sentencing judge had properly considered the applicant's claims of fear and hatred of the victim stemming from alleged abuse. The Court also reviewed the quantum of the sentence independently, given the applicant was unrepresented, and detected no error. Patten AJ had taken into account the guilty plea, the applicant's subjective circumstances, the finding on motive (described as not unfavourable to the applicant), and had applied a finding of special circumstances to justify the extended balance of term.

On the transgender status ground, the applicant herself acknowledged this issue could only arise if the Court found error and proceeded to resentence. Because no error was identified, resentencing did not arise. Further, the Court held that the post-sentence circumstances (which emerged only in September 2011, well after sentencing in 2007) did not meet the threshold of exceptional circumstances necessary to be ventilated on appeal, applying the principles in Springer v R and Norrie v R.

Orders Made

  • Leave to appeal against conviction refused
  • Leave to appeal against sentence refused

Key Takeaways

  • A claim of miscarriage of justice arising from legal representation requires more than disagreement with the advice given; the Court of Criminal Appeal found that advice to plead guilty can be prudent and realistic even where the applicant later disputes it.
  • Findings of fact made by a sentencing judge will not be disturbed on appeal unless clear error is demonstrated; scrutiny of the admitted evidence here disclosed no such error.
  • Post-sentence changes in an applicant's circumstances cannot ordinarily support a sentence appeal; they become relevant only if the appellate court has independently identified error and is proceeding to resentence.
  • In exceptional circumstances, post-sentence events may be considered on appeal, but the Court declined to classify the applicant's custodial difficulties arising from her transgender status as meeting that threshold.
  • Where an applicant appears unrepresented, the Court of Criminal Appeal may nonetheless review the overall quantum of a sentence to check for error, but that independent review here confirmed the sentence was appropriate to the circumstances of the offence.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1), s 5(1)(c)

Cases:
- Rasic v R [2009] NSWCCA 202
- R v Clark (No. 3) [2008] NSWSC 795
- Clark v R [2010] NSWCCA 94
- Clark v The Queen [2010] HCATrans 256
- Thalari v R [2009] NSWCCA 170; 75 NSWLR 307
- R v Birks (1990) 19 NSWLR 677
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124
- Ali v The Queen [2005] HCA 8; 79 ALJR 662
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- R v Cornwell [2003] NSWSC 97; 57 NSWLR 82
- Aoun v R [2011] NSWCCA 284
- Norrie v R [2008] NSWCCA 185
- Springer v R [2007] NSWCCA 289; 177 A Crim R 13