New South Wales Supreme Court CITATION : REGINA v CLARKE [1999] NSWSC 1225 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : L00016/95 HEARING DATE(S) : 12 November 1999 JUDGMENT DATE : 15 December 1999 PARTIES : The Crown Rodney Thomas Clarke (Applicant) JUDGMENT OF : Newman J LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Cole J COUNSEL : C K Maxwell QC (Crown) M A Green QC (Applicant) SOLICITORS : Director of Public Prosecutions Legal Aid Commission of NSW CATCHWORDS : DECISION : Redetermination of life sentence; See para 78 THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION NEWMAN J WEDNESDAY, 15 DECEMBER 1999 L 16/95 - APPLICATION of Rodney Thomas CLARKE JUDGMENT 1 HIS HONOUR: This is an application in which the applicant seeks a redetermination of a life sentence passed upon him on 15 September 1988 by Cole J. 2 Before his Honour the applicant had pleaded not guilty to three counts of sexual intercourse and one count of murder. In the event, the jury convicted him of all counts. Not only was he sentenced to penal servitude for life for the crime of murder but also he was sentenced to two head sentences of twenty years with accompanying non-parole periods of eighteen years for two of the counts of unlawful sexual intercourse (they involved penile penetration of his victim's vagina and anus respectively). 3 On the third count of unlawful sexual intercourse which involved digital penetration of the victim he was sentenced to ten years penal servitude with a non-parole period of eight years. 4 All sentences were specified to be served concurrently and were dated from 22 July 1987 when the applicant was taken into custody. 5 The applicant has accepted the following as a correct statement of the facts of the matter. 6 In July 1987 Mrs Suzanne Keegan resided with her four daughters (Deborah aged nine, Sarah aged seven and a half, Barbara aged four and a half, and Michelle aged two) in a three bedroom house at 6 Nella Dan Avenue, Tregear. She had been separated from her husband Brian, the father of the four girls, for over eighteen months. 7 The applicant who had been employed for about three months, resided nearby at 15 Nella Dan Avenue with his parents and at least one brother. 8 He was aware of the composition of the Keegan family at the relevant time, more particularly that no adult male formed part of the household. 9 On 15 July 1987 shortly after 8 pm Mrs Keegan supervised her four daughters retiring for the night; the two oldest in bedroom three on the right hand rear of the house looking from the street and the two youngest in bedroom two. Deborah and Sarah occupied single beds on opposite sides of their bedroom. 10 After making sure that the girls had settled down Mrs Keegan returned to the living room where she continued to watch television from the lounge chair. She eventually fell asleep on the lounge at about 10.10 to 10.20 pm. 11 Shortly before 10.30 pm the applicant made his way to the rear of the house and gained entry to Deborah and Sarah's bedroom by standing on a bin and prising the locked bedroom window open with a small knife he had found. As he passed the living room he had observed through a gap in the curtain, that Mrs Keegan appeared to be asleep on the lounge chair. 12 The applicant, a solidly build male of slightly below average height, pulled himself through the window into the room. He then made his way into the hallway to check that Mrs Keegan was still asleep before returning to the bedroom. 13 His re-entry disturbed Deborah who enquired as to what he was doing there. He thereupon pressed his right hand over her mouth and nasal area and forced her head into one of the two pillows on the bed. 14 The applicant held the young girl in that position unable to breathe until she became unconscious. He then pulled the blankets off her, removed her pyjama pants and panties and pulled her to the side of the bed where he spread her legs apart. He then pulled down his own trousers. 15 As he did not at that time have an erection he digitally manipulated the child's vagina for several minutes including inserting his index finger up to the knuckle. Having achieved an erection the applicant, as he later told detectives "tried to put it in her vagina and it was pretty tight and I put it in and I started to go for it, I pulled out too late and I come inside her". 16 The child was moving and struggling a little while this occurred and to prevent her giving the alarm he kept his hand over her mouth. After completing the act of vaginal intercourse the applicant turned the child over and forcing her head into the pillow had anal intercourse with her. She ceased struggling and no doubt died at the time he withdrew from her. 17 He then placed her back in the bed, still without her pyjama pants, panties and bed socks which were later found either mixed up on the bed clothes or under the bed, and covered her up to the shoulders with the blanket, to give the impression that she was asleep. 18 The applicant then left the house through the window by which he had gained entry. At some time after 11 pm he met up with a group of friends, including Grant Metcalfe to whom he had lent his bicycle earlier in the evening. After recovering his bicycle he returned home, had a shower and went to bed. 19 At about 7 am the next morning Mrs Keegan, after observing dried blood on Deborah's backside and frothy mucous coming from her mouth and nose alerted her next door neighbour and then called the ambulance service. An ambulance officer who arrived at the house a short time later informed her that her daughter was dead. 20 Dr J Malouf, the government medical officer, pronounced life extinct at about 10.25 am on 16 July 1987. Commencing at 2.30 pm he carried out a post mortem examination of the deceased during which he made the following observations of the injuries which she sustained and the trauma to which she had been subjected. 21 They were as follows: bleeding and mucoid material emitting from the vagina. Bruising around the vaginal orifice with dilation of that orifice to approximately one centimetre; bruising on the interior walls of the vagina and a torn hymen; abrasions around the urethral orifice and bruising to the whole area of the perineum; bleeding from the rectum and considerable bruising on the walls of the anus which was dilated to three centimetres with a 1.5 millimetre tear radiating backwards; frothy fluid exuding from her nostrils, the tongue tip was caught between clenched jaws, haemorrhages to the eyeballs due to asphyxiation as well as within the upper and lower eyelids; a seven centimetre abrasion on the right side of her nose, bruised and swollen lips. He certified the cause of death to be asphyxiation due to obstruction of airways. Dr Malouf deposed at trial that the time of death was between 9.30 pm and 10.45 pm on 15 July 1987. 22 The applicant was first spoken to by detectives involved in the murder investigation on 18 July 1987 when he made a two page exculpatory statement. He was again questioned by detectives at Mt Druitt police station on 22 July 1987. After initially outlining his movements on the previous Wednesday with no reference to being involved in the subject crimes, he broke down and confessed when he was confronted with an unexplained half hour gap between 10.30 pm and 11 pm in his chronology. 23 After verbally admitting responsibility for the murder and certain of the sexual offences the applicant was given the opportunity of seeing his parents. He indicated that he only wanted to see his mother as he could not face his father. He then told his mother that he had done it and when asked why said "drugs, drugs". His mother then persuaded him to see his father and he told him "I didn't mean to do it Dad, I didn't, I'm sorry". 24 The applicant then took part in a nine page signed record of interview containing admissions of all offences in respect of which he was indicted at trial, with the exception of the anal intercourse count. 25 In early September 1987 detectives were informed that the applicant, who was then in protective custody at Parklea prison, had told a fellow prisoner that one Grant Metcalfe had been with him at the murder scene on the night in question. Arrangements were then made for a recording to be taken of a conversation between the applicant and another prisoner, Mark Reeve. 26 Following the receipt of this tape recording by police the applicant was interviewed by then Detective Senior Sgt Gilligan at Parklea prison on 10 September 1987 in the presence of his solicitor from the Legal Aid Commission. During this interview the applicant confirmed the accuracy of his record of interview of 22 July 1987 and stated that he had made up the story of Metcalfe's presence at the house on the night of the murder. 27 During the afternoon of 11 September 1987 the applicant contacted Detective Sgt O'Connell by phone from Parklea prison and informed him that another person was present at the time of the death of Deborah Keegan. Arrangements were then made for the applicant to be again interviewed by detectives. 28 On arrival at the prison Detective Sgt O'Connell was handed a piece of paper purportedly written and signed by the applicant which is as follows: "I Rodney Clarke am writing down on my own free will. The night of death of Debbie Ceegan (sic) that I was not alone. Grant Metcalfe had a magure (sic) part of it. 29 He then saw the applicant, in the presence of Clarke's mother and father. The conversation with the applicant was taken down in the form of a record of interview which the applicant signed at its conclusion. In this document he nominated Metcalfe as the person who had suffocated the victim and committed certain sexual offences upon her. It might be noted that he and Metcalfe had been friends for about four years. 30 It is relevant to the present application to refer to the following questions and answers in that interview: "Q. Would you care to tell me who was living in the house at that time? A. Mrs Keegan and about four or five daughters. Q. At that time did you have any idea where Mrs Keegan and her daughters were situated in the premises? A. I don't know where they all slept but I seen the mother sleeping on the lounge in front of the t.v. Q. How did you see Mrs Keegan sleeping on the lounge? A. There was a gap in the curtains and I looked through it." 31 The final questioning of the applicant took place at Parklea prison on 27 October 1987 after Detective Snr Const Smith, the officer in charge of the case, had informed the applicant that he wished to clarify a number of points in the record of interview conducted with Detective Sgt O'Connell on 11 September 1987. This questioning again took the form of a record of interview along substantially similar lines to the previous interview. 32 The defence case at trial was that while the applicant had digitally and vaginally penetrated the young victim the act of anal intercourse and the suffocation causing her death had been perpetrated by Grant Metcalfe. Metcalfe denied, under cross-examination by senior counsel for the applicant, that he had been present in the house on the night of the murder or indeed at any time while the Keegan family had been living in that house. 33 In his statement from the dock the applicant maintained the version of events set out above. His criminal antecedents include two convictions for malicious injury and one for break enter and steal. 34 On the applicant's behalf there were reports from a psychologist, Mr W John Taylor, a psychiatrist Dr W Barclay, a letter from the prison medical service and a discharge summary from a Dr I Ali of that service and evidence from his parents were before his Honour. 35 His Honour then sentenced the applicant as above. 36 Pursuant to s 13A(9)(c) this Court in dealing with this application is to have regard to, inter alia, any relevant comments made by the original sentencing judge when imposing sentence. 37 His Honour, the learned sentencing judge, having recounted the facts consistently with the above narrative, made these comments: "It is difficult to comprehend that a human being could engage in such conduct in a civilised society. Sexual attacks upon persons in public places are frequently reported, but are not to be tolerated. But much worse is a sexual attack upon a defenceless child who believes, and is entitled to believe, that she is secure in the comfort, security and sanctuary of her own bed in her own home. Clarke selected as his victim a near neighbour, whose window he was prepared to force, no doubt confident in the knowledge that no male was within. Having gained entry he gratified his sexual desires upon an innocent 9 year old girl while slowly killing her. The trauma which that young girl underwent whilst being subjected to these gross sexual attacks and at the same time being suffocated, is too horrible to contemplate. It is the duty of the court to mark the complete intolerance and abhorrence of such conduct by society. Murder, in order to escape detection, and committed in conjunction with selfish gratification of sexual desires, has no place in civilised society. It must be well understood by those who might contemplate conduct of this nature that defenceless children, whether they be in public or in the sanctuary of their home, are not to be used for sexual gratification. Leniency will not be extended to persons who transgress this rule - nor should it be, for if children are deprived of a comfortable feeling of safety and security, both when in public places and especially when at home, the secure fabric in which society hopes that future generations will grow, is rendered. And if young children cannot look for comfort and protection from those who live in close neighbourhood with them, then the very nucleus of our society is destroyed. Looked at objectively, it is difficult to perceive a more appalling sexual attack upon a defenceless child. Similarly to suffocate a child to death in her own bed is a terrible murder. I have sought, subjectively, to discover any mitigating circumstances, but I can find none." 38 Evidence has been tendered in the present application which indicates that the head sentence in relation to the two matters on which his Honour imposed terms of twenty years with adjustments necessary by the passing of the Sentencing Act 1989 is to expire on 14 January 2000. 39 While his Honour ordered the sentences to be served concurrently, the reality is that the applicant has yet to commence serving any part of his term of incarceration which is solely related to the crime of murder. However, technically he has, because the sentences are concurrent, served more than eight years of that sentence and is thus, pursuant to s 13A(2) able to make this application. 40 Before Cole J reports from Mr W John Taylor, psychologist and Dr W Barclay, psychiatrist, were in evidence. He was found to have an IQ of 78 which was just below the 80 cut off point for dull/normal intelligence. Dr Barclay could find no evidence of any psychiatric disorder or any specific neurological disorder. 41 While the applicant was both an alcohol and marijuana abuser, Dr Barclay discounted that his substance abuse had any influence on his actions on the fatal evening. 42 In support of this application another forensic psychiatrist, Dr W Lucas, gave evidence both by way of a report and oral testimony. Like Dr Barclay, Dr Lucas was unable to discern any psychiatric malady when he saw him. He also confirmed that he had a border line intellectual disability. 43 In his report Dr Lucas commented: "The psychosocial factors leading to his offence include a degree of intoxication on the day and a history of drug and alcohol abuse. Mr Clarke has not given a history of sexual disorder. It is hard to know just what circumstantial factors were important and the extent to which the offence was opportunistic. Because of his intellectual limitations it may be that a clearer picture will be difficult to obtain, especially if Mr Clarke has a limited ability to understand the offence himself and to explain it to others." 44 Unlike the situation which existed both before Cole J and when Dr Barclay saw the applicant, he now admits that he murdered his victim. He claims that he introduced Grant Metcalfe into the lethal scenario because following his apprehension a fellow inmate had advised him that it would be wise to do so to deflect the ire of other inmates from the applicant. He now concedes the falsity of his story involving Metcalfe. 45 In evidence he used a curious phrase to describe his acceptance of guilt. He said "I have taken ownership of it". When pressed in cross-examination by the Crown in these proceedings to explain why he committed these offences he could give no explanation for his actions. When this matter was taken up in cross-examination with Dr Lucas, Dr Lucas spoke in terms of the applicant's actions on the subject evening as being opportunistic in nature but could not be any more explicit in explaining why this man committed these crimes. 46 Earlier, in chief, Dr Lucas when dealing with the question of the applicant being in the future a danger to the public, while conceding that psychiatrists and others are of the view that past conduct is the best indicator or the most reliable one of future conduct, he stressed that the applicant had undertaken only one major criminal episode - namely this case. 47 I shall return to the question of future danger to the public later in these reasons. 48 Since entering into full time custody the applicant has conducted himself well in prison. He has successfully undertaken a number of sex offenders programs. 49 He has progressed in terms of prison classification to Category C1 which is defined by the prison regulations as being those who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of an officer. 50 He has been assessed by Dr R Blake, a senior psychologist, who on 21 April 1999 reported as follows: "Mr Clarke presents as being motivated to undertake all therapeutic options which have been presented to him. He appears to be committed toward moving forward in his own personal journey of rehabilitation. Mr Clarke is viewed with favour by therapeutic staff and his commitment toward personal endeavours is well acknowledged. Mr Clarke is clearly a person who would benefit from consideration for CUBIT. In the writer's opinion he has the requisite knowledge and insight to gain a great deal from the intensity of CUBIT. If CUBIT is not a possibility, then work at the Special Care Centre or the Violence Prevention Unit would be valuable. Given the violence and horrific deviancy of his crime, he does require further intensity of treatment." 51 The CUBIT program is an intensive therapy program for men who have sexually abused, inter alia, children. The program consists of modules aimed at changing offending patterns and rebuilding in its participants, more healthy ways of meeting needs. The program lasts from thirty one to fifty two weeks depending upon each person's progress. 52 In the light of Dr Blake's recommendations and the prisoner's present classification of C1 it seems that he in fact will undertake this program. I shall return to its significance later in these reasons. 53 I have had tendered before me victim impact statements from the victim's mother, her sister and her father. I have read those statements. Those statements are indicative of the appalling effect the death of Deborah Keegan has had upon all members of her family. The destructive effect upon them of this crime represents an enormous human tragedy. I pass to all of them the sympathy of this Court. However, for reasons detailed by Hunt CJ at CL in R v Previtera, unreported, 27 May 1997 I cannot take into account the contents of the victim impact statements in coming to my conclusion as to what is the appropriate sentence in this case. 54 I turn then to the objective seriousness of the offence committed by the applicant. It was submitted by Mr Green QC on his behalf that the applicant's crime of murder, while serious, did not fall within the classification of the worst category of case. 55 He sought to support this submission by reference to cases such as R v Glen, NSWSC 1018, a redetermination carried out late this year by Wood CJ at CL. 56 He put it that serious though the facts of this case are that when compared to Glen and others such as Garforth, this case does not, on that comparison, fall within the category of worst type of case. I do not accept this submission. 57 In Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 478 it was observed in the High Court: "That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case: ingenuity can always conjure up a case of greater heinousness." 58 In R v Fernando, NSWCCA 66, 14 April 1999, the Court of Criminal Appeal pointed out that while other cases of murder committed in circumstances of aggravation were of assistance to the court in calculating the degree of criminality they do not support a submission that the courts should compare the facts of a particular matter with those other matters in order to determine whether a case falls within the category of worst case. 59 In Rv Twala, unreported, Court of Criminal Appeal, 4 November 1994 Badgery-Parker J in delivering the lead judgment of the court made similar observations: "… in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)." 60 Here, as Cole J correctly pointed out, there are a number of factors of particular heinousness and it is for that reason I have adverted to the remarks passed upon sentence by his Honour. Those circumstances of aggravation detailed by his Honour are indicative of a degree of heinousness that in my view places this case squarely in the category of worst case. 61 Essentially the examination required by a court in so determining is qualitative in nature. I should add that while the applicant has a border line intellectual disability, that disability is not so great as was the case in Twala to act as a mitigating factor in determining the objective seriousness of his offence. 62 What course then should the court take in this present application pursuant to s 13A(8)(a). 63 The applicant is currently thirty-four having been born on 14 November 1965. He has been in custody since 22 July 1987, effectively approximately twelve and a half years. As I have said, his progress in custody has been very good. He has gained literacy skills and, as I have already mentioned, now fully acknowledges his participation in the events of the evening of 15 July 1987. 64 This seems to have been in response to his participation in the various sexual offenders programs. He is to undertake the CUBIT program which is one of greater intensity than the others he has undertaken. 65 At the present time I am no persuaded that despite the progress he has made he would not constitute a danger to the community if released. If a determinate sentence were to be passed having regard to the fact, as I have already pointed out, that he has yet to serve a day in custody which is solely referable to the crime of murder any minimum term fixed would have to be of significant duration should the court decided to fix the minimum term. 66 In some ways the considerations which apply here are similar to those which confronted Wood CJ at CL in Glen. In his judgment on 1 October 1999 unreported, Wood J observed: "The case is one of some difficulty, having regard to the relative youth of the applicant at the time of committing an offence of such hideousness as to place it in the most serious category, and also having regard to the fact that there was no apparent justification or reason for him to behave in this fashion." 67 As Mr Green QC has rightly submitted, this applicant's progress in custody has been significantly greater than Glen's progress as was determined by Wood CJ at CL. Like Wood CJ at CL in Glen I have taken into account the provisions of s17(1) of the Sentencing Act and have not overlooked the demarcation between the power of this Court under s 13A and those of the Parole Board under s 17(1) of the Sentencing Act. 68 There may well be hope that if the applicant successfully completes the CUBIT program it may be that this Court could then be satisfied that the applicant no longer presents a danger to the community. The fact that he is still unable to give an explanation for his conduct on the evening and the fact that Dr Lucas can give the court no explanation other than that of being an opportunistic event, in my view, supports that conclusion. On the other hand of course, even if he does successfully complete the CUBIT program those reservations may remain. 69 Having regard to these factors I am of the view that the court should not at present, set a determinate sentence in relation to this matter. 70 Pursuant to s 13A(8)(b) of the Sentencing Act I propose to direct that the applicant not reapply to this Court for a period of three years. This will enable the applicant to undertake the CUBIT program and for a full assessment to be made in the light of his participation. 71 It will also mean that in real terms he would have at least served some years in custody for the crime of murder before the question of his redetermination of sentence is carried out. 72 Accordingly, I would dismiss this application and direct that the applicant may present a fresh application under s 13A at a date not earlier than three years from today. Last Modified: 06/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.