Regina v Kenneth Lloyd Clarke [2002] NSWSC 993

New South Wales Supreme Court

CITATION : Regina v Kenneth Lloyd Clarke [2002] NSWSC 993 FILE NUMBER(S) : SC L00/002 HEARING DATE(S) : 18 October 2002 JUDGMENT DATE : 25 October 2002

PARTIES : Regina Kenneth Lloyd Clarke JUDGMENT OF : Sully J at 1

COUNSEL : C. Lampratti - Crown C. B. Craigie SC - Applicant SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Applicant Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act 1999 DECISION : Application for re-determination of sentence granted; In lieu, imprisonment for 20 years, commencing 17 June 1989, with a non-parole period of 15 years commencing 17 June 1989 and expiring on 16 June 2004

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SULLY J

Friday 25 October 2002

L00/002 – REGINA v KENNETH LLOYD CLARKE

JUDGMENT 1 HIS HONOUR: Before the Court is an application by Mr. Kenneth Lloyd Clarke, ("the prisoner"), for the re-determination of a sentence, which he is at present serving, of imprisonment for life. The sentence was passed upon the prisoner by McInerney J sitting in the Supreme Court at Wagga Wagga on 28 August 1992. 2 Between 3 August 1992 and 7 August 1992 the prisoner stood trial before McInerney J and a jury upon a charge that he had murdered, on 17 June 1989 at Yoogali in this State, one Merrilyn Mae Armstrong. The jury found the prisoner guilty as charged. He was subsequently convicted, and was sentenced, as previously noted, to imprisonment for life. He appealed to the Court of Criminal Appeal against his conviction; and on 13 December 1994 that appeal was dismissed. 3 The life sentence which the prisoner is currently serving is an "existing life sentence" as defined in Schedule 1 to the Crimes (Sentencing Procedure) Act 1999, ("the Act"). The provisions of Schedule 1 govern, accordingly, the present application. Clauses 3 and 7 of Schedule 1 set out the criteria to which the Court must have regard in dealing with the present application. I shall return presently to a consideration of those criteria in their application to the present particular case; but before doing that, it is convenient to summarise the relevant factual background. I take it, as follows, from the judgment of Finlay J who delivered the principal judgment in the Court of Criminal Appeal: "At the time of the alleged murder (the prisoner) was living with the victim, his fiancée, Merrilyn Armstrong, in a farmhouse about 5 kilometres out of Griffith. On that day he spent about seven and a half hours drinking at the Area Hotel at Griffith with various people from about 4.30 p.m. to mid-night or a little after. At about 8.00 pm the deceased had rung him at the hotel to ask when he might be coming home. At approximately mid-night (the prisoner) and his acquaintances decided to go to a local night club. The appellant was not suitably attired. He told his companions he was going home to change. At 1.34 a.m. the following day Mrs. Armstrong, the mother of the deceased, received a telephone call from (the prisoner) saying: 'I tell you I've killed her. She's dead. Ring the police'. The police arrived at about 2.00 a.m. Upon entering (the prisoner's) home the police found (the prisoner) administering heart massage to the deceased. (The prisoner) upon noticing the police presence moved away from her. The police examined her and pronounced life extinct. (The prisoner) was then arrested. The deceased woman had been brutally battered to death. A blood-covered glass jar had been used as a weapon. (The prisoner) first told the police he had been at the Area Hotel since he had finished work the previous afternoon and had remained there until after mid-night: that he walked home to Yugali after leaving the hotel, and was well affected by intoxicating liquor. He said that on his arrival home the door was open and he found the deceased on the floor of the bedroom. (The prisoner) had blood on him. Considerably later that day he signed a Record of Interview, which commenced at 2.05 p.m. and concluded at 3.49 p.m. on 17 June. That Record of Interview included the following: 'Q. 22 Do you agree that you told me that you then telephoned her mother and told her that Merrilyn was dead? A. Look I'll tell you now what I can remember, what I have told you this morning is not exactly what happened. I'll tell you now what I can remember happened. Q.23 Do you now wish to tell us what you say actually happened last night at the farmhouse? A. Yes. I can't remember walking I know I would have had the shits. I think I opened the door I was pretty pissed, I was blind, and I don't know if I got the tea ready or she did, I have got a blank spot for about half an hour when I was at the house. I've got a sore lip (indicated slight laceration inside bottom left inside lip). She could have hit me and I must have hit her and she must have fell to the ground and I tried to save her. Q.24 Do you remember that happened then? A. I remember her body wasn't moving. I panicked and tried to save her and ring her mother. Then when I finished ringing her mother I went back and tried to save her again, I was there for about 10 minutes then the police come. Q.25 Do you recall what you hit her with? A. Um – probably my hands I don't think I would have kicked her. Q.26 I show you a glass jar containing cotton wool balls with a glass lid. Can you tell me who owns this item? A. We do. Q.27 Do you agree that it is covered with blood and other material? A. Yes. I know I had that in my hand. Q.28 Did you have the jar and the lid in your hand at the same time? A. I don't know. Q.29 Do you remember how many times you struck her with the glass jar? A. I don't know if I hit her with the glass jar or not. Q.30 Do you recall if she was bleeding heavily? A. There was a lot of blood there. She was bleeding from the nose, mouth. Q.33 Did you say anything to her during the altercation? A. Why, why, why or something like that. Me head was going round and round and I don't know what I was saying. … Q.50 Can you give me any other reason why you would have had an argument with the woman upon your arriving home? A. I can't remember exactly but I was cranky because I had to walk home. Wayne Egan was going to take me home, he lives across the road, but he went without me. When I got home she reckoned I must have been rooting around, and playing up and I must have said something to her and that would have been how it started. And we just had a fight and it got out of hand. She hit me a couple of times and I hit her then I couldn't stop. Q.51 As a result of the woman Armstrong being struck a number of times about the head she has died. Is there anything you want to say about that? A. I didn't mean to kill her. My head is just confused at the moment. If you give me time in a day or so it might become clearer and I might be able to tell you about it." 4 Set out seriatim in what follows are the relevant criteria prescribed by clauses 3 and 7 of Schedule 1 to the Act; together with my findings and remarks in respect of each such criterion.