Man appeals sentence after sex change

A man jailed for 20 years for murdering his grandfather in a Sydney backyard has failed in a bid to appeal his sentence on the grounds that he has since become a woman.

In 2007 the then 24-year-old Ben Richard Clark - now known as Stephanie Elizabeth Clark - was sentenced to a maximum of two decades in prison, with a non-parole period of 14 years, after pleading guilty in the Supreme Court to the 2005 murder of his grandfather.

Clark said he was provoked into shooting Ernest "Dick" Clark in the head and neck after years of verbal, physical and sexual abuse.

Last year Clark applied for leave to appeal both the conviction and the sentence, citing a number of grounds.

On one ground, Clark's legal representatives argued that her jail time should be reduced as since September, "she has been on a non-association order for protection whilst in custody because of her transgender status".

They argued this had given rise to increased isolation and reduced access to services, programmes, employment and educational facilities in prison.

But in a hearing before the Court of Criminal Appeal in Sydney today, Justice of Appeal Basten, Justice Johnson and Justice Garling unanimously refused Clark's leave to appeal, stating that her transgender status was only relevant if an error within the prison system was established.

"As the transgender status issue arose ... long after the applicant was sentenced, it is not a matter which can appropriately be ventilated on appeal to this court," the judges found.

The judges also found that other avenues of appeal, including that Clark should have sought a verdict of manslaughter upon the partial defence of provocation rather than murder - were "sufficiently unmeritorious".

With time already served, Clark's earliest possible date of release will be July 13, 2019.

The decision comes after a court heard in 2007 that Clark shot his grandfather in the neck and head in his Bexley backyard, in Sydney's south-west, before leaving him on the ground bleeding and unconscious.

The 74-year-old, who was later found by his partner, died the next day in hospital.

Acting Judge David Patten said at the time of sentencing that he did not accept Clark's claims of sexual abuse, conceding only that Clark may have endured verbal taunts and the odd "push".

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