Clare v R [2008] NSWCCA 30

Clare v R [2008] NSWCCA 30

The sentencing judge erred by not considering whether the overall effect of cumulating the sentences (Supreme Court and District Court) constituted special circumstances justifying a variation from the statutory ratio between the non-parole and parole periods under s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The Court allowed the appeal with respect to this ground, varying the non-parole period for manslaughter accordingly. The applicant failed on other grounds, as the sentence was not manifestly excessive and was within the discretion of the sentencer, given the nature, context, and seriousness of the offences.

Parties
Applicant: William Thomas Clare; Respondent: The Crown
Jurisdiction
Australia
Judgment Date
28 February 2008
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Against Sentence; Judgment on Appeal
Outcome
Leave to appeal granted; appeal allowed in part (sentence for count 2 varied); otherwise appeal dismissed
Legal Topics
Sentencing, Principle of Totality, Special Circumstances, Manifestly Excessive Sentence, Cumulative and Concurrent Sentences, Manslaughter of a Child, Sexual Offences Against Children
Criminal Law Sentencing Principle of Totality Special Circumstances Manifestly Excessive Sentence Cumulative and Concurrent Sentences Manslaughter of a Child Sexual Offences Against Children

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Parties

William Thomas Clare

Applicant

The Crown

Respondent

Procedural Posture

Criminal Appeal / Application for Leave to Appeal Against Sentence; Judgment on Appeal

Legal Issues

  1. 1 Whether the sentencing judge erred in the application of the principles of totality in sentencing for multiple offences
  2. 2 Whether special circumstances existed justifying a variation in the proportion between the parole and non-parole periods
  3. 3 Whether the overall sentence imposed was manifestly excessive

Ratio Decidendi

The sentencing judge erred by not considering whether the overall effect of cumulating the sentences (Supreme Court and District Court) constituted special circumstances justifying a variation from the statutory ratio between the non-parole and parole periods under s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The Court allowed the appeal with respect to this ground, varying the non-parole period for manslaughter accordingly. The applicant failed on other grounds, as the sentence was not manifestly excessive and was within the discretion of the sentencer, given the nature, context, and seriousness of the offences.

Court Disposition

Leave to appeal granted; appeal allowed in part (sentence for count 2 varied); otherwise appeal dismissed

Orders

  • Grant leave to appeal
  • Uphold the appeal in relation to the sentence for count 2; impose a non-parole period of 15 years and 9 months for count 2 but otherwise confirm the sentence