R v CLARK [2001] NSWSC 488

New South Wales Supreme Court

CITATION : R v CLARK [2001] NSWSC 488 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70076/00 HEARING DATE(S) : 02/04/2001, 03/04/2001, 04/04/2001, 05/04/2001, 09/04/2001, 10/04/2001, 11/04/2001, 12/04/2001, 17/04/2001, 18/04/2001, 19/04/2001, 20/04/2001, 23/04/2001, 25/05/2001 JUDGMENT DATE : 14 June 2001

PARTIES : REGINA v Steven John CLARK JUDGMENT OF : Barr J at 1

COUNSEL : Crown: H Hamilton Offender: B Stratton QC SOLICITORS : Crown: SE O'Connor Offender: Ross Hill & Associate Solicitors CATCHWORDS : Criminal Law - sentencing - murder CASES CITED : Regina v Fahda [1999] NSWCCA 267 R v Letteri, Court of Criminal Appeal New South Wales 18 March 1992 unreported DECISION : See para 23

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Thursday, 14 June 2001

70076/00 - REGINA v Steven John CLARK

SENTENCE 1 HIS HONOUR: On 23 April 2001 a jury found the offender, Steven John Clark, guilty of the murder at Mathoura on 7 February 1999 of Lynette Kay Lock. 2 The offender was invalided out of the Royal Australian Navy because of serious disabilities resulting from injuries he received in a motor vehicle accident that occurred during his naval service. He received a substantial amount of money by way of compensation and used part of it to purchase the franchise of the post office at Mathoura in about 1993. He began to manage and operate the post office. He also purchased dwelling houses in Mathoura and elsewhere. One such house, in the village of Mathoura, was occupied by the offender's mother, Mrs Heil. She suffered from multiple sclerosis. 3 The deceased, Lynette Kay Lock, also lived in the village. She successfully applied for the franchise to deliver mail from Mathoura to residents of the village and certain of the outlying districts. She and the offender seem at first to have had a reasonable working relationship. Their responsibilities were independent. The offender was not responsible to see that the deceased carried out her duties properly and had no authority over her. 4 The offender was always concerned about his mother's state of health and there came a time when he thought it might be in his mother's best interests to have someone such as the deceased living with her in the house. He suggested to the deceased that she board with his mother, in effect paying a portion of her rent in money and a portion in caring for Mrs Heil and doing help around the house. 5 As time went on the offender's attitude towards the deceased changed. It is necessary in order to explain that change to say something about his perceptions of her, her conduct and her intentions. It is not generally necessary, however, to consider whether his perceptions were accurate. 6 Unfortunately tension arose between Mrs Heil and the deceased. It was suggested to the offender that the deceased was interfering in the friendship of Mrs Heil and other residents of the village and behaving in a domineering and possessive manner. There were other problems too. Complaints were made that the deceased was not delivering the mail satisfactorily. Members of the public did not understand that the offender was not responsible for the manner in which she did her work and brought their complaints to him. That also caused the relations between the offender and the deceased to deteriorate. 7 The offender and his family received advice, including medical advice, that it would be better for Mrs Heil if the deceased were to move out of her house. The deceased was given a month to find other accommodation. By that time she no longer had the postal delivery franchise. It appeared to the offender as though she were making no effort to find anywhere else to live. He knew, for example, that there were vacancies at the caravan park, yet she said that she had been unable to find accommodation. I think that the offender must have suspected that the deceased would not move out of Mrs Heil's house unless substantial pressure were brought to bear. 8 On the morning of 7 February 1999 the offender and Mrs Heil were due to leave Mathoura to attend a barbecue at a village in Victoria about sixty-eight kilometres from Mathoura. The journey between the two villages would have taken about forty-five minutes. The barbecue was being held by a sister of the offender and the plan was that he should take Mrs Heil there. The barbecue was due to commence at about 11.30 am. Two witnesses remembered seeing the deceased alive on the morning of 7 February. One, Miss Bright, was serving in a shop and attended to her some time between 9 and 10.30 am. Mr Colin Robertson, a particular friend of the deceased, said that she left his house at about 9.30 am. Witnesses who attended the barbecue estimated the time of arrival of the offender and Mrs Heil as between midday and 1 pm. The evidence of the offender was that they arrived at about 11.30 am, having stopped off on the way in Echuca to purchase sausages and for him to inspect his investment properties there. 9 The pine forest where the remains of the deceased were found several months later was rather more than twenty kilometres out of Mathoura in the opposite direction. The jury were obviously satisfied that the offender had time to collect the deceased from Mrs Heil's house, take her to the pine forest, kill her and dispose of her body and return to Mathoura in time to collect Mrs Heil and take her to the barbecue. 10 DNA evidence satisfactorily identified the few remains found months later as those of the deceased. 11 The most important witness in the Crown case was Mr Scott Dennis Brown, an old friend of the offender from their Navy days and one of the few who had kept in touch with him since his medical discharge. They saw each other a number of times each year and were in a sideline business together. Mr Brown, who lived in Canberra, used to purchase second hand computers and prepare them for resale. Some of them were sold through the offender at Mathoura. On one of the visits of Mr Brown to Mathoura the offender told him that he had driven the deceased from Mathoura to the pine forest and had shot her three times before dragging her body some way into the forest and leaving it. He left with Mr Brown some written instructions for the use of a 9 mm Browning pistol. 12 Mr Brown kept these things to himself for a long time but eventually told the police and when a search was carried out later on three fired cartridge cases were found, appropriate for use with 9 mm bullets. 13 The jury were instructed that they must not find the offender guilty unless satisfied beyond reasonable doubt that Mr Brown's account of the manner in which the accused told him he killed the deceased was reliable. I conclude that the offender killed the deceased in the manner which he described to Mr Brown. His intent was to kill. I think that his motive for doing so must have been his frustration over the difficulties he was having in getting her to leave his mother's house, coupled with his anxiety for his mother's health and his resentment over troubles he had had because of the deceased's failure to carry out her delivery duties properly and which were no fault of his. 14 The offender was born on 16 April 1965 and entered the Navy as an apprentice during his teens. He was a fit young man and apparently good at his job. He began as an aircraft technician and changed to the electrician's trade because he wanted to get a ticket and do well in his chosen service. He was a good sportsman, too, and had prospects of representative appointment in Australian football. These things all came to an end in the motor vehicle accident. The disabilities he was left with were substantial. He suffered a head injury and resulting permanent brain damage. He has left-sided weakness. He cannot remember the detail of things as well as he could before. In order to operate a computer at the post office, for example, it was necessary for him to write down the sequences of keystrokes that were necessary in routine operations because he could not remember them. The evidence also establishes that his mood was altered in that he became more prone to making spontaneous foolish and occasionally offensive remarks. Whereas he had no difficulty making friends whilst he was in the Navy, he became a man who was not liked by many people. He married and he and his wife settled in Mathoura, but the marriage did not last long and broke up with the offender accusing his wife of taking financial advantage of him. 15 He was assessed by Dr Wayne Reid, clinical neuropsychologist, on 22 May 2000. In tests the offender achieved a verbal IQ of 93, a performance IQ of 85 and a full scale IQ of 89, which Dr Reid said placed the offender's level of functioning in the low average range. He thought that before the accident his range of intellectual ability would have been average. Dr Reid puts down the difference to the effects of residual brain damage from the 1987 head injury. The offender's other symptoms are inability to think quickly and speak fluently and behaviour which is distractible and inappropriate at times. 16 The offender has been held in custody ever since his arrest on 17 March 2000 and those who have the care of him have been impressed with his behaviour and co-operation. He is obviously responding well within the confines of the Corrective Services system. 17 He has a conviction for assault, but the Court was told that it resulted from over-vigorous correction of the child of his former wife and was an offence committed during the heat of that bitter relationship. I think that it is of no relevance for present purposes and I think that I should regard the offender as equivalent to a first offender. 18 Although there was abundant evidence to demonstrate the tendency of the offender to behave impulsively, it was not submitted on sentence that what happened on 7 February 1999 was done in any way on the spur of the moment, and I do not think that it was. As I have said, I think that the offender was motivated by the pressures which bore upon him. I think that he must have considered his actions and his choices and I do not think that there was anything impulsive about the way in which he took the deceased to the forest and killed her. 19 It was submitted on behalf of the offender, relying upon the evidence of Dr Reid as to the level of the offender's intellectual functioning, that general and personal deterrence ought to be given much less weight than might normally have been the case. It was submitted that there was no need to protect society against any further violent behaviour of the offender. Reference was made to R v Letteri, Court of Criminal Appeal New South Wales 18 March 1992 unreported, Regina v Fahda [1999] NSWCCA 267 and other cases. 20 I do not accept that the principles referred to in those cases ought to apply here. This is not a case where the offender is suffering from some mental illness or disability the existence of which would make it inappropriate to impose a salutary sentence. Neither does the offender suffer from any severe intellectual handicap. He simply functions in the low average range. There is no impairment of his planning skills or his ability to choose between courses of action. He must have premeditated and planned the death of the deceased. He had to persuade her to go for a drive with him, he had to obtain the firearm and the ammunition and he had to ensure that he could travel to the forest and back and do all that he had to do, covering his tracks as necessary, within a limited period of time. 21 The offender's physical disability will make it more difficult for him than for most to serve the custodial period of his sentence and he may be denied the full range of activities available to most within the Corrective Services system. I take that into account. I do not consider that he will be a danger to others when he is released back into the community, because I think that this offence resulted from a peculiar coincidence of circumstances which is not likely to be repeated. 22 I have considered whether the circumstances warrant a period on parole which would require the imposition of a non-parole period less than three-quarters of the sentence I intend to impose, but I do not think that any extended period will be necessary. 23 Steven John Clark, I sentence you to imprisonment for a period of sixteen years commencing on 17 March 2000 and expiring on 16 March 2016. I fix a non-parole period of twelve years which will expire on 16 March 2012. You will become eligible for release on parole on that day. **********