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. 4 I am satisfied that when the offender picked up the knife he was intending to stab the deceased. Although he intended to demand an explanation of the deceased, it was not his intention only to talk. I am satisfied that when he approached the deceased he moved quickly, ahead of Ms Clarke, and that as he walked down the street he was already handling the knife with the intention of using it. 5 After his altercation with Ms Clarke the deceased moved to re-enter his house, and I think that he would have done so if the offender had not approached him and called him out. The offender demanded to know why the deceased had acted as he had and asked him whether he would like to "have a go at him". The offender held the knife in his right hand and waved it at the deceased. I am satisfied that the deceased removed his belt, but only under the threat of the knife. I am satisfied that he used the belt not to attack the offender but to try to knock the knife out of his hand. The offender made a number of thrusts with the knife. Two of them cut the deceased across the knuckles of the belt hand. Another killed him. 6 I am satisfied that the confrontation began at or close to the boundary between the wide grass verge and the hard surface of the road. The verge was quite wide at that point and was bounded on the other side by the side fence of the deceased's house. During the attack the offender drove the deceased backwards until he was close to his own side fence. It was there that he fell, mortally wounded. I am satisfied that the offender was always driving forward and the deceased always retreating. 7 A number of witnesses saw the offender make motions with his right arm or body. Some of them described those motions. That evidence satisfies me that the offender repeatedly thrust the knife at the deceased, using his right hand. I think that the death blow was probably delivered after the offender had changed his grip, so that the blade of the knife came from the back of the hand, whereas previously he had presented the knife from the front of the hand. 8 As the deceased lay on the ground, the offender knelt beside him and held the knife to his throat as though making or threatening to stab him again, yet he did not do so but withdrew the knife. He may not have realised at the time that the deceased was dying, and what he did makes me think that, notwithstanding the way things might have appeared during his attack on the deceased, he did not intend to kill him. The fatal injuries resulted from a single thrust. No great force was needed to inflict the injury. 9 The provocation was not of a high order. Nothing the deceased said or did put Ms Clarke in any great danger. After the bottle missed her she was in no danger at all. No doubt the offender considered the deceased a nuisance who ought to be taught a lesson, but in my opinion the acts and words of the deceased were only just sufficient to entitle the offender to a verdict of guilty of manslaughter rather than of murder. The use of the knife aggravated the offence. The deceased's use of the belt was defensive, not provocative. However, the offence was opportunistic rather than planned or organised. I conclude in view of all these matters that the offence was in the mid-range of seriousness of offences of its kind. 10 The offender was born on 8 September 1952. He has a long record of offending, beginning in the Children's Court before he was yet fourteen years old. There is only one conviction for any offence of violence, however, a common assault for which he was fined in 2001. He has a large number of convictions for offences of dishonesty and deception. He has served a number of periods of imprisonment for breaking entering and stealing, receiving, having stolen goods in his custody, obtaining benefits by deception, false pretences and forgery. His record does not aggravate his criminality but it disentitles him to leniency. 11 I think, in view of the offender's criminal history, that the offence was out of character and that the likelihood of his re-offending is slight. I accept that he is sorry that the deceased died, but that is the extent of his remorse. He is not sorry, apparently, that he used the knife and continues to say, according to the pre-sentence report, as he did at trial, that the stabbing was an accident. I think that his prospects of rehabilitation are moderate. 12 The offender and his wife have been married for thirty years and the marriage has withstood the pressures put upon it by his use of alcohol and illegal drugs and by his offending. His wife strongly supports him and will continue to do so throughout the custodial and parole portions of his sentence. The other members of their family support him as well. 13 The circumstances do not to my mind have that special nature which justifies a balance of the sentence exceeding one third of the non-parole period. 14 A Victim Impact Statement was tendered on behalf of Ms Shirley Godwin, the partner of the deceased. She and their two children have been badly affected by the loss of their partner and father, particularly because of the circumstances in which he died. The Court has not taken these matters into account in imposing sentence, but it does extend its sympathy to Ms Godwin and her children in their loss and expresses the hope that the use of the Victim Impact Statement at the sentencing hearing has given them comfort. 15 I set a non-parole period of six years, which will be taken to have commenced on the day of the offender's arrest, 12 April 2003, and will expire on 11 April 2009. The balance of the sentence will be two years and will expire on 11 April 2011. The offender will become eligible for release on parole on 11 April 2009. Last Modified: 12/06/2004 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. 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