New South Wales Supreme Court CITATION : R v Clarke [2001] NSWSC 703 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70088/00 HEARING DATE(S) : 3 July 2001, 9 July 2001, 20 July 2001 JUDGMENT DATE : 20 July 2001 PARTIES : The Crown Wayne Alan Clarke JUDGMENT OF : McClellan J COUNSEL : W Robinson QC (Crown) C R Craigie (Offender) SOLICITORS : Director of Public Prosecutions (Crown) Champion Legal (Offender) LEGISLATION CITED : Crimes Act 1900, s 154A(1)(b) Crimes (Sentencing Procedure) Act, s 23(2) Georgina Marie Hill v R 3 A Crim R 397 Thomson v Houlton [2000] NSWCCA 301 (17 August 2000) CASES CITED : R v Parkinson [2001] NSWCCA 244 (27 June 2001) R v Khan NSWCCA, unreported, 8 June 1990 R v Cartwright (1989) 17 NSWLR 243 DECISION : See paras 38-41 THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION McCLELLAN J FRIDAY, 20 JULY 2001 70088/00 - REGINA v Wayne Alan CLARKE SENTENCE 1 HIS HONOUR: The offender, Wayne Alan Clarke, has pleaded guilty to the manslaughter of Lanh Ngoc Bui. He has also pleaded guilty to one count of allowing himself to be conveyed in a motor vehicle knowing that the vehicle had been taken without the consent of the owner contrary to s 154A(1)(b) of the Crimes Act 1900. 2 On the evening of Thursday, 3 August 2000, the offender was involved in a robbery of Ms Bui. His friend and co-accused stole a Ford sedan motor vehicle from outside an hotel and collecting the offender they had decided to plan a robbery. The plan was to snatch a bag from a person standing on the footpath and escape using the stolen motor vehicle. 3 On that evening the deceased, Ms Bui, had attended a Lidcombe Club with her boyfriend, Tri Dung Tran, where they had dinner. They left the club at approximately 9.00 pm and walked a short distance to Mr Tran's unit in Swete Street, Lidcombe. Mr Tran went inside to collect his car keys while the deceased waited outside the unit block on the driveway/footpath area. 4 At that time the co-accused driving the stolen vehicle, came into Swete Street. He stopped the vehicle approximately 50 metres from where the deceased was standing and the offender got out. He approached the deceased and grabbed her handbag. Meanwhile, the co-accused drove the vehicle alongside the offender. The offender then opened the door of the vehicle and got into the front passenger seat. 5 The deceased pursued the offender and attempted to regain her handbag. The co-accused began driving down Swete Street and the deceased ran alongside the vehicle for a short distance. The co-accused then briefly stopped the vehicle and the deceased partially entered the vehicle. The co-accused accelerated and drove the vehicle down Swete Street swerving it from side to side in an attempt to get the deceased out of the vehicle. He drove the vehicle through the roundabout at the corner of Church Street, turning left and clipping the gutter as he made the turn. 6 Ms Bui grabbed hold of the offender's head, apparently to stop herself falling from the vehicle. The co-accused, as he continued driving, repeatedly punched Ms Bui to the head in an endeavour to get her out of the vehicle. Approximately 40 metres from the roundabout, in Church Street, the deceased fell from the vehicle, rolled onto the roadway and the rear tyre of the vehicle struck her head. 7 The deceased was found unconscious and was transported by ambulance to Westmead Hospital where she died at approximately 1.20 am on the morning of 4 August as a consequence of her head injuries. 8 Meanwhile, the co-accused and the offender drove to Thomas Street, Parramatta where they searched the deceased's handbag, recovering a small sum of cash. They then discarded the handbag and small items from it in a bin at the rear of a unit complex situated in Thomas Street. Those items were later recovered. 9 The stolen motor vehicle was also recovered and items contained within it were scientifically examined. 10 At 10.00 am on Tuesday, 8 August, 2000 the offender's solicitor contacted police and indicated that the offender wished to speak about his involvement in the offence. At about 10.30 am police attended at the solicitor's office where the offender was arrested and cautioned and conveyed to Parramatta police station, later participating in an ERISP interview and a video recorded re-enactment of the events of the night of 3 August 200. 11 The matter was given considerable publicity and, apparently, the offender, overcome with remorse, contacted his solicitor and those events which I have just related, unfolded. 12 The offender has provided a full account of the events which occurred, including his role in them. He has undertaken to give evidence at the trial of the co-accused. 13 To describe the events as a "robbery gone wrong" is to seriously understate the seriousness of the crime. As a result of the illegal activity of the offender and his companion, an innocent nineteen year old woman has lost her life. In expressing the court's sympathy to Miss Bui's family I am deeply conscious that no words are adequate in these terrible circumstances. I have read and appreciate the contents of the victim impact statements. I appreciate the enormous grief that the loss of such a loved daughter and sister brings in these circumstances. 14 The court has often stated that sentencing for manslaughter is a difficult process. The range of sentence is greater than for almost any other offence. The maximum penalty is twenty-five years penal servitude. In Georgina Marie Hill v R 3A Crim R 397, the Chief Justice said: "The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the prisoner coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life." 15 I must have regard, when determining the penalty which it is appropriate to impose, to the objective elements of the criminality of the acts which led to Miss Bui's death. There is a great need for the sentence which is imposed to be sufficient to deter and discourage others from carrying out crimes which may involve a risk to human life. The snatching of bags from pedestrians always creates a risk to their safety but that risk is significantly increased when a motor vehicle is part of the overall plan. The community is entitled to expect that people can use the pedestrian pathways without fear of their property being taken and their life threatened. 16 The tragedy which resulted in the death of Lahn Ngoc Bui occurred when the offender and another set out to rob her. The offender has stated that he endeavoured to persuade the other person to stop the vehicle, allowing the deceased an opportunity to be safely released, but he did not listen to his request. Instead the other person continued driving the vehicle at speed and at the same time reaching across the offender, hit the deceased in the head until she ultimately fell from the vehicle. Although the offender was equally responsible with the other person for initiating the events which led to the death, his was the lesser role once the handbag had been seized. 17 The act of seizing the deceased's bag, utilising a motor vehicle for the purpose of the crime, was both unlawful and inherently dangerous. That crime, itself objectively serious, resulted in the sequence of events which led to the loss of Miss Bui's life - a crime with the highest degree of criminality. 18 The offender surrendered himself to police and revealed his own identity as an offender together with other details of the offence. Before he did this, the offender had been threatened by the other person and those threats continued after his arrest. It is likely that without this action by the offender, the crime would have gone undetected and unpunished. Certainly, the investigation process would have been far more difficult and time consuming. 19 There is no doubt that the offender shows genuine remorse for the events in which he participated. He has indicated that he will give evidence in the trial of the other person and I proceed to sentence him upon that basis. Before me he gave evidence that he had intended to tell the truth at his own trial whatever the consequence may have been for him in the criminal justice process and irrespective of any threat to his personal safety. I accept that evidence. 20 I am satisfied that having regard to the circumstances of his surrender to police and his early plea, the offender is entitled to the maximum allowance on this account, of twenty five percent. See Thomson v Houlton [2000] NSWCCA 301 (17 August 2000); R v Parkinson [2001] NSWCCA 244 (27 June 2001). 21 The offender is also entitled to consideration pursuant to s 23(2) of the Crimes (Sentencing Procedure) Act 1999 All of the relevant elements of the section appear to be satisfied. 22 I am satisfied that the assistance of the offender is of a high degree. The Crown has indicated that it will call the offender at the trial of the other person with the expectation that he will give evidence in accordance with his confession. I am also satisfied that the offender has given a truthful and complete account of the events which occurred. That account which was given at an early opportunity has been of great assistance to the police in seeking to investigate and resolve the crime. 23 The offender will obtain no benefit or advantage from the assistance which he has given. Indeed, by informing and being prepared to give evidence against the other person he has placed himself at risk. He has been kept in confinement during the period in which he has been in custody and it is likely that he will have to be kept in these circumstances for the duration of his sentence which I intend to impose. The other person has previously served full time custodial terms and in conversation, recorded by a listening device, has made death threats to the offender. There is a reasonable fear that these threats will be transmitted to other offenders, necessitating the isolation of the offender. The assistance given by the offender relates, of course, to the offence for which he is being sentenced. 24 The offender is now aged twenty-five, having been born on 14 October 1975 and at the time of the offence was unemployed. He has a sorry criminal history. The sentences which have been imposed upon him reflect attempts by various courts to provide the offender with opportunities to avoid a life of significant crime with inevitable consequences. He first transgressed in 1992 when he was convicted of robbery in company and sentenced to community service. He offended again in 1993 on more than one occasion and was placed on probation. He was also sentenced to a period of community service. In 1994 he again offended and, the matters being more serious, was sentenced to serve six months by way of periodic detention. He was again sentence for offences involving property in 1998. Having regard to his considerable history of offences, it would appear that the offender has determined on a course of crime. 25 The offender has been seen by Dr Olaf Nielssen, forensic psychiatrist. He reports that the offender has never had any kind of psychiatric treatment or counselling prior to coming to gaol. However, he reported that he had felt depressed at intervals during his upbringing. 26 The offender, apparently, told the doctor that he was depressed in the weeks before the offence because of the temporary break down of a relationship with a woman to whom he had an eighteen month old daughter. He said that although he had previously used heroin as a recreational user, he had been able to avoid using drugs until the relationship broke down. He said to Dr Nielssen that his despondency over the break down of the relationship had contributed to his using heroin again. 27 Since being taken into custody in relation to the present matter, the offender has become significantly depressed and he had apparently considered suicide. His psychological state has been improved by counselling from a psychologist. Although the offender has not experienced symptoms of psychotic illness, he is, apparently, very anxious both in and out of gaol. He was the victim of a serious assault with a baseball bat several years ago which left him anxious and with some memory problems. Threats have been made against his safety because of his preparedness to confess in the present matter and give evidence against his co-accused. 28 The offender is the third of five children with two elder sisters, a younger sister and a brother. His parents live together, his father being retired and his mother receiving some form of disability pension. Although the offender relates memories of a happy childhood, he says his upbringing was affected by his father's anger and criticism. His says that his father abused cannabis and methadone and was in and out of gaol during his upbringing for fraud and other offences. 29 The offender has only a limited education and although able to read and write has difficulty with arithmetic. His intelligence has been assessed as being below average with his vocabulary well below average. He has apparently commenced work toward his School Certificate within the prison system. 30 The offender has only worked for two of the eight years since leaving school. Apparently, he worked consistently during 1998 in the building industry whilst in a stable relationship expecting the child. The offender was, however, a delinquent teenager and, as I have previously indicated, has served a sentence at Mt Penang and, as an adult, served a nine month sentence. after having failed to comply with a weekend detention order. As is so often the case, the offender commenced on a life which involved many property offences once he began using heroin which occurred at the age of twenty-one. 31 Dr Nielssen reported marked self-consciousness and low self-esteem which he contributed to the offender's use of heroin. He believes that the offender's rehabilitation, if it is to occur, depends on abstinence from heroin and would be greatly assisted by vocational training and opportunities for productive employment. He believes he will also benefit from further counselling and participation in personal development activities to assist him to maintain feelings of self-esteem and overcome feelings of despondency without resorting to drug abuse. Dr Nielssen believes that if the current offence had not occurred, the offender would probably have remained a relatively minor offender and could well have grown out drug use and criminal activity by his late twenties. 32 The offender gave evidence that he is a recreational user of heroin. However, even if that be so, there can be little doubt that the nature of his criminal record is a reflection of attachment to drugs and reluctance to obtain employment and as a consequence he has engaged upon repeated criminal activities in order to obtain funds. On this occasion, that criminal activity has tragically resulted in the loss of the life of a young woman. 33 In these circumstances a sentence of ten years full time imprisonment, in my opinion, would have been appropriate. However, having regard to the early plea entered by the offender and his full and frank cooperation with the authorities, in my view, a total discount of fifty percent is appropriate. 34 The application of discounts in favour of offenders who have cooperated with authorities can cause some difficulties. It has been commented that to allow a significant discount for offenders who give evidence to authorities which leads to the apprehension of someone else may "be felt to be in some ways amoral." However, it has been recognised that the public need to bring offenders to justice must allow a price to be paid for the achieving of that objective. It may involve, in some cases, a sentence which on its face may appear unduly lenient See R v Khan NSWCCA, unreported, 8 June 1990 and R v Cartwright (1989) 17 NSWLR 243. In the circumstances of the present case where the offender has shown genuine remorse and given full co-operation leading to his own conviction and the opportunity of the apprehension of his co-offender, in my view, a discount toward the maximum end of the available range is appropriate. Of course, it is necessary to ensure that the resulting sentence adequately reflects the serious criminality involved in the offence and the other objectives of the sentencing process. 35 In approaching the sentencing of the offender I have been concerned about his previous history of convictions. Having regard to the number of offences and the age of the offender, I hold real concern as to whether he would ever be able to rehabilitate himself. However, I am persuaded by the report of Dr Nielssen that the tragic circumstances of the current matter may result in the offender taking responsibility for his life and rehabilitating himself. Certainly his confession, and I believe genuine contrition at whatever the potential cost to his own personal safety, indicate that there is some possibility that he will, upon release, desist from his former lifestyle. 36 Having regard to the offender's genuine remorse and his cooperative attitude to the authorities, I have ultimately concluded that with appropriate treatment for his drug abuse and ongoing supervision, there are prospects of his rehabilitation. Accordingly, I find, for the purposes of sentencing, that there are special circumstances which justify a greater non-parole period than the statute provides, although I do not believe a significant extension is justified. 37 Would the prisoner please stand: Mr Clarke, you have pleaded guilty to the offence of manslaughter. I have heard and taken into account all of the matters that have been put by counsel on your behalf. I have had particular regard to the circumstances in which the offence occurred. I have also had regard to your early confession and your assistance given to the investigating police and your intention to give evidence at the trial of your co-accused. 38 You are convicted of manslaughter. You are sentenced to a term of five years to commence on 8 August 2000 and expiring on 7 August 2005. I fix a non parole period of three and a half years. Accordingly you will be eligible for parole on 7 February 2004. 39 You have also pleaded guilty to being conveyed in a motor vehicle contrary to s 154A(1)(b) of the Crimes Act. With respect to that offence it is plain that it was intimately related to the events which gave rise to the charge of manslaughter. It is appropriate that I take the same approach in relation to that sentence as I have taken in relation to the manslaughter offence. The offence carries a maximum term of five years. I would have otherwise imposed a sentence of twelve months full time imprisonment. However, in the circumstances an appropriate sentence is a fixed term of six months. 40 With respect to the offence relating to the stolen motor vehicle, to which you have pleaded guilty, you are sentenced to a term of six months to commence on 8 August 2000 and expiring on 7 February 2001. I formally indicate that term is to be served concurrently with the sentence I have imposed in relation to the charge of manslaughter. 41 You must understand that I have discounted the sentence which I would otherwise have imposed because of your evidence to me, that you will give truthful evidence at the trial of the other person involved in the crime. You should understand that if you fail to give that evidence in a satisfactory manner the Crown may appeal and the Court of Criminal Appeal would reconsider the sentence which I have imposed. ****** Last Modified: 08/24/2001 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.