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Supreme Court 4 May 2018

R v Cliff (No 6)

[2018] NSWSC 587

Assault & violenceHomicideTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE MURDER CHILD UNDER THE LAW OBJECTIVE SERIOUSNESS OF OFFENDING INTOXICATION

Citation: R v Cliff (No 6) [2018] NSWSC 587
Court: Supreme Court of New South Wales
Date: 4 May 2018
Judge: Campbell J

Background

The offender was sentenced following a jury verdict of guilty for the murder of James Cleghorn, a 16-year-old (and therefore a child at law), killed on 7 June 2016 at a residential address in Kooringal, Wagga Wagga. James died from 47 separate injuries, including approximately 34 stab wounds. The attack was described as determined and frenzied, though not premeditated. The offender did not know he had killed James until police informed him several hours later that night.

In the aftermath of the killing, the offender broke into the home of a nearby resident, stole her car keys using physical violence against her, and then took her vehicle in an attempt to flee Wagga Wagga and evade arrest. These acts gave rise to charges of aggravated break and enter with larceny and motor vehicle theft, to which the offender pleaded guilty.

Two further offences were referred to the Supreme Court on a s 166 certificate from the Local Court: using an offensive weapon with intent to commit an indictable offence, and the motor vehicle theft. The offender pleaded not guilty to the offensive weapon charge. Campbell J determined that charge on the trial evidence.

  • What findings of fact should be made for sentencing purposes, consistent with the jury's murder verdict but independently assessed by the sentencing judge?
  • What was the objective seriousness of the murder, having regard to intoxication and the absence of premeditation?
  • Whether the partial defence of extreme provocation (s 23, Crimes Act 1900) was relevant to the sentencing assessment of moral culpability, even though the jury rejected it as a complete defence?
  • How should self-induced intoxication be weighed as a mitigating or aggravating factor?
  • What subjective factors applied, including remorse, youth, background, and prospects of rehabilitation?
  • How should the sentences for the murder and the related offences be structured, with appropriate consideration of accumulation, concurrence, and totality?
  • Whether the offender was guilty of using an offensive weapon with intent to commit an indictable offence?
  • What special circumstances, if any, warranted departure from the standard non-parole period ratio?

Decision

Campbell J approached sentencing by making independent findings of fact consistent with the jury verdict, applying the beyond reasonable doubt standard to facts aggravating culpability and the balance of probabilities standard to mitigating matters. The judge found the murder was not premeditated but was nonetheless a sustained and furious attack involving 47 injuries. The mental element established was an intent to cause really serious bodily harm, not an intent to kill, partly because the offender did not know James had died until told by police.

On the question of intoxication, the judge noted that self-induced intoxication is generally not a mitigating factor, consistent with established principles. However, its relevance to the offender's actual state of mind at the time of the killing was taken into account in assessing overall moral culpability. The issue of extreme provocation, while rejected by the jury as a complete defence, remained a consideration in the sentencing court's assessment of the circumstances in which the killing occurred.

The judge considered the offender's subjective circumstances, including his age, background, and any expression of remorse, as well as the profound impact on James's family as conveyed through family impact statements. The murder of a child at law was treated as a significant feature of the objective gravity of the offending.

On the offensive weapon charge, Campbell J acquitted the offender on the evidence adduced at trial. The sentences for the break and enter and car theft were structured to run concurrently from the date of the offending, with the murder sentence commencing after the expiry of those terms. The judge applied totality principles to ensure the overall sentence reflected, but did not overstate, the full criminality across all offences.

Orders Made

  • Convicted of murder of James Cleghorn (jury verdict); sentenced to imprisonment with a non-parole period of 22 years commencing 7 June 2018 and expiring 6 June 2040, with an additional term of 8 years expiring 6 June 2048; earliest eligibility for parole is 6 June 2040.
  • Convicted on guilty plea of aggravated break and enter (larceny involving physical violence on the victim); sentenced to a fixed term of 3 years commencing 7 June 2016 and expiring 6 June 2019.
  • Convicted on guilty plea of taking and driving a motor vehicle without consent; sentenced to a fixed term of 1 year commencing 7 June 2016 and expiring 6 June 2017.
  • Acquitted of using an offensive weapon with intent to commit an indictable offence; the Court Attendance Notice was dismissed.
  • The offender was warned that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply following the expiration of his sentence.

Key Takeaways

  • A sentencing judge following a murder trial must make independent findings of fact for sentencing purposes, bound by the jury's verdict but not confined to the most favourable version of events available on the evidence, provided that facts increasing culpability are proved beyond reasonable doubt.
  • Self-induced intoxication does not operate as a mitigating factor in sentencing for serious violence, though it may inform the assessment of actual mental state at the time of the offence.
  • Where a partial defence such as extreme provocation is left to the jury but rejected, the circumstances underlying that defence may still be weighed by the sentencing court when assessing the offender's moral culpability.
  • Under the totality principle, sentences for multiple offences must reflect overall criminality proportionately, without punishing the offender twice for the same conduct. Here, the lesser sentences were structured to run concurrently with each other and prior to the commencement of the murder sentence.
  • Expiry of a non-parole period does not guarantee release; it marks only the earliest point at which a parole authority may consider the offender's release, which remains dependent on demonstrated rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 19A, 23, 23A, 33B, 112, 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A, 44, 45
- Criminal Procedure Act 1986 (NSW), s 166
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15E
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cheung v The Queen (2001) 209 CLR 1
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Bolt (2001) 126 A Crim R 284; [2001] NSWCCA 487
- R v Isaacs (1997) 41 NSWLR 374
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54