Citation: Regina v Clissold [2002] NSWCCA 356
Court: NSW Court of Criminal Appeal
Date: 19 August 2002
Judges: Hodgson JA, Simpson J, Smart AJ
Background
The offender was a member of a motorcycle club who, acting on the orders of the club's Supreme Commander, participated in the assault and abduction of a fellow member. The victim was subsequently beaten to death at an unknown location. The offender also assaulted the householder at the premises where the victim was found and abducted. He pleaded guilty to manslaughter (as an accessory before the fact to an unlawful and dangerous act) and to assault occasioning actual bodily harm.
In the Supreme Court, Greg James J sentenced the offender to four years imprisonment for the assault and 14 years imprisonment with a non-parole period of eight years for the manslaughter. The sentences were partially accumulated, producing a total effective sentence of 16 years and a combined non-parole period of 10 years.
The Director of Public Prosecutions appealed, arguing the non-parole period for the manslaughter sentence was manifestly inadequate. The Crown contended that where the only special circumstance justifying departure from the standard three-quarters rule was the accumulation of sentences, the non-parole period should have been fixed at three-quarters of the total sentence, producing parole eligibility after 12 years rather than 10.
Legal Issues
- Whether a sentencing judge, when finding special circumstances based solely on the accumulation of sentences, is bound to set a non-parole period equivalent to three-quarters of the total accumulated sentence.
- Whether the sentencing judge correctly construed and applied s 44 of the Crimes (Sentencing Procedure) Act in fixing the non-parole period.
- Whether the overall sentences, including the extent of accumulation, were within the permissible range.
Decision
The Court of Criminal Appeal rejected the Crown's construction of s 44. Smart AJ, with whom Hodgson JA and Simpson J agreed, held that s 44(2) requires only that the non-parole period be not less than three-quarters of the head sentence unless special circumstances exist. The provision does not specify what the non-parole period should positively be. That question is governed by s 44(1)(b), which requires the court to fix the minimum period the offender must actually spend in custody.
The Crown's argument would have required reading additional words into s 44(2) that the legislature did not include. It also involved treating accumulation as a uniquely constrained species of special circumstance, a distinction the statute itself does not draw. The Court found no warrant for that differential construction merely because the resulting reduction is numerically calculable in accumulation cases.
The Court found the sentences were individually correct, the partial accumulation was appropriate to mark the gravity of the assault on the householder, and the overall result of parole eligibility after 10 years was sound and within the permissible range. No error by the sentencing judge was established.
Even if error had been found, the Court noted it would still have dismissed the appeal, given the principles of double jeopardy applicable to Crown sentence appeals and the soundness of the overall sentencing outcome.
Orders Made
- The Crown appeal was dismissed.
Key Takeaways
- Under s 44 of the Crimes (Sentencing Procedure) Act, a sentencing judge is not bound to fix a non-parole period equal to three-quarters of the total accumulated sentence simply because accumulation is the special circumstance relied upon. The judge retains a considerable degree of discretion.
- A correct reading of s 44 requires distinguishing between s 44(2), which sets a minimum threshold for the non-parole period, and s 44(1)(b), which guides the positive determination of the appropriate non-parole period.
- The Court of Criminal Appeal rejected the proposition that one category of special circumstance, accumulation, attracts a different or more restricted application of s 44(2) than any other special circumstance.
- In dismissing the appeal, the Court reaffirmed that principles of double jeopardy remain relevant to Crown sentence appeals, providing an independent basis to decline intervention even where error might otherwise be identified.
- No error was established in the sentencing judge's approach to accumulation or in the overall structure of the sentences imposed.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (in particular s 44(1)(b) and s 44(2))
Cases cited:
No cases were cited in the judgment.