Citation: R v Cleverly [2004] NSWSC 1279
Court: Supreme Court of New South Wales, Common Law Division
Date: 17 December 2004
Judge(s): Mathews AJ
Background
The prisoner was convicted by jury on 17 August 2004 of murdering his aunt, Susan Smith, aged 42, on the evening of 3 July 2002 at her home in West Ryde. The victim was found by her sister, Margaret, who arrived home from work to discover the house in darkness and the back door ajar. A post-mortem examination confirmed Susan Smith had died by ligature strangulation.
The prisoner initially gave police a version of events that placed him away from the scene. He subsequently told police he had visited the house that evening and discovered the body before his other aunt returned home, but denied any involvement in the killing. Forensic evidence contradicted key aspects of his account: fibres from his jacket were found on the deceased's clothing and on a forcibly opened electrical box, and DNA consistent only with the prisoner was located under the deceased's fingernails.
Following his arrest, a series of unusual events unfolded, including threatening communications purportedly from a person identifying as "I2" who claimed responsibility for the killing. On 6 August 2003, the prisoner organised a staged home invasion at his mother's residence, designed to convince authorities that the "I2" figure genuinely existed and posed a threat to his family. A co-conspirator identified the prisoner's involvement, and the prisoner ultimately admitted his part in staging the invasion.
Legal Issues
- What is the appropriate head sentence and non-parole period for the murder of Susan Smith?
- How should the prisoner's post-offence conduct, including the staged home invasion, bear on sentencing?
- What weight should be given to the absence of remorse and the prospects of rehabilitation?
- How should the two offences arising from the home invasion be taken into account in the overall sentencing exercise?
Decision
Mathews AJ sentenced the prisoner following a jury conviction on a plea of not guilty, which meant no discount for a guilty plea was available. Her Honour described the killing as essentially senseless: a deliberate, cold-blooded act against a family member who had done nothing to provoke it. The absence of any apparent motive made the offence particularly troubling, and the court noted the difficulty this created in assessing rehabilitation prospects.
Her Honour treated the prisoner's organisation of the staged home invasion as a significant aggravating factor in sentencing. The deception was specifically designed to implicate a fictitious third party and deflect responsibility for the murder. The court found this conduct reflected poorly on the prisoner's prospects of rehabilitation and demonstrated a calculated willingness to deceive authorities long after the original offence.
The court declined to take into account, in any adverse way, the unresolved assault on Margaret Smith three weeks after the murder, noting the prisoner had never been charged with that incident. Similarly, her Honour expressly excluded Margaret Smith's victim impact statement from the sentencing calculus, acknowledging its moving quality while recognising it was not a permissible sentencing consideration. No special circumstances were established that would justify a departure from the standard ratio between head sentence and non-parole period.
The two home invasion offences were taken into account as part of the overall sentencing exercise. Her Honour acknowledged their seriousness but described their relative impact on the final sentence as not major, given the gravity of the murder itself. The sentence was backdated to 9 February 2003 to account for the 22 months and eight days the prisoner had already spent in custody.
Orders Made
- Head sentence of 24 years imprisonment, commencing 9 February 2003
- Non-parole period of 18 years from 9 February 2003
- Earliest eligible parole date: 8 February 2021
Key Takeaways
- The Supreme Court treated the prisoner's orchestration of a staged home invasion, designed to fabricate evidence of a fictitious killer, as a relevant aggravating factor going to rehabilitation prospects rather than the objective gravity of the murder itself.
- A conviction for murder following a not guilty plea attracts no sentencing discount, and the court proceeded on the basis of the jury's findings without any reduction for cooperation or remorse.
- Where no special circumstances are established, sentencing courts applying the Crimes (Sentencing Procedure) Act 1999 will not depart from the standard non-parole period ratio.
- Victim impact statements, even compelling ones, do not constitute a permissible basis for increasing the sentence imposed for murder under the approach applied here.
- Uncharged conduct, such as an alleged assault on a separate family member, was expressly excluded from the sentencing exercise, reinforcing that sentencing must proceed on proved or admitted facts.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases cited:
No cases were cited in the portion of the judgment provided.