Regina v Allan Clifford CLARKE [2004] NSWSC 1125

New South Wales Supreme Court

CITATION : Regina v Allan Clifford CLARKE [2004] NSWSC 1125 revised - 30/11/2004 HEARING DATE(S) : 05/10/04 - 15/10/04, 19/11/04 JUDGMENT DATE : 26 November 2004

JUDGMENT OF : Barr J at 1 DECISION : Non-parole period of 6 years set. Balance of sentence 2 years.

CATCHWORDS : Criminal law - sentencing - manslaughter PARTIES : Regina v Allan Clifford CLARKE FILE NUMBER(S) : SC 2004/16 COUNSEL : L Lungo M Dennis SOLICITORS : S Kavanagh Murphy's Lawyers Inc

- 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

26 NOVEMBER 2004

2004/16 REGINA v ALLAN CLIFFORD CLARKE

SENTENCE 1 His Honour: The offender, Allan Clifford Clarke, was found guilty by a jury of the manslaughter on 12 April 2003 at Seven Hills of Rodney Frederick Searle. The offender and the deceased lived in adjacent streets in Seven Hills. The offender's daughter, Narelle Clarke, lived nearby. She often saw the offender and they had a good relationship. On the day of the offence Ms Clarke was walking with two friends in the street near the deceased's house. One of the friends excused herself for a short time, so Ms Clarke and the other friend sat down to wait. The deceased, who had had a good deal to drink, was outside the front of his house. He and Ms Clarke knew one another. He engaged her in conversation. The subject-matter is of no particular interest, but the conversation became heated and insults began to be exchanged. The conversation was so loud as to attract the attention of people nearby. The argument ended when the deceased threw a beer bottle at Ms Clarke. It missed her and she retreated by the way she had come. She went into the offender's house and complained about the conduct of the deceased. She was upset and, on one description, hysterical. On hearing her complaint, the offender took a hunting knife from his house, left the house and went towards the deceased's house. He engaged the deceased on the grass verge of the street in front of his house and there killed him. The wound which caused death was a single thrust to the chest which lacerated the heart and the pulmonary artery. 2 At the trial three possible routes to a verdict of guilty of manslaughter were canvassed, namely by provocation, by excessive self-defence and by unlawful and dangerous act. For reasons for which I shall explain, I am satisfied beyond reasonable doubt that the offender intended to inflict grievous bodily harm. It is therefore inappropriate to sentence him as merely for an unlawful and dangerous act causing death. I am satisfied beyond reasonable doubt that the offender was not acting in self-defence. I am satisfied that the offender acted under the sting of the words and action of the deceased, as reported to him by his daughter, and that, so provoked, he attacked and killed the deceased. The conduct of the deceased could have induced an ordinary person in the position of the offender to have so far lost self-control as to have formed the intent to kill or do grievous bodily harm. 3 I am satisfied that the words and actions of the deceased towards Ms Clarke were insulting and even dangerous. I am satisfied that she was very upset when she reported the matter to the offender. Ms Clarke gave evidence that the deceased invited her to bring her father into his presence and the offender gave evidence that after Ms Clarke spoke to him he was afraid that the deceased might be intending to hurt him. I do not accept that the deceased ever made such an invitation or ever had any intent to hurt the offender. I do not accept that the offender ever thought that the deceased intended to hurt him.