Clare v R [2008] NSWCCA 30

Reported Decision: 181 A Crim R 450

New South Wales Court of Criminal Appeal

CITATION: Clare v R [2008] NSWCCA 30

HEARING DATE(S): 23 November 2007

JUDGMENT DATE: 28 February 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 50; Price J at 51

1. Grant leave to appeal. DECISION: 2. Uphold the appeal in relation to the sentence for count 2. In relation to that count impose a non-parole period for a term of 15 years and 9 months but otherwise confirm the sentence. 3. Otherwise dismiss the appeal. 4. As a consequence of order 2 the applicant will be eligible for parole on 16 July 2031.

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - principle of totality in sentencing - special circumstances in setting non-parole period - whether overall sentence was manifestly excessive - whether sentence should be concurrent with previous sentence imposed for related offence - charges of manslaughter and sexual intercourse with a child under 10 years - finding that offence was in the worst class of manslaughter

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes (Serious Sex Offenders) Act 2006

CATEGORY: Principal judgment

Close v Regina (1992) 65 A Crim R 55 Mill v The Queen (1988) 166 CLR 59 Qing An v R [2007] NSWCCA 53 R v Adamson (2002) 132 A Crim R 511 R v Cahyadi (2007) 168 A Crim R 41 CASES CITED : R v Forbes [2005] NSWCCA 377 R v Guider [2002] NSWSC 756 R v Hoerler (2004) 147 A Crim R 520 R v Holder [1983] 3 NSWLR 245 R v Ibrahim [2005] NSWCCA 43 R v MMK (2006) 164 A Crim R 481 Simpson v Regina (1992) 61 A Crim R 58