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Supreme Court 15 December 1999

REGINA v CLARKE

[1999] NSWSC 1225

Sexual offencesHomicide

Citation: REGINA v CLARKE [1999] NSWSC 1225
Court: Supreme Court of New South Wales (Criminal Division)
Date: 15 December 1999
Judge(s): Newman J

Background

The applicant had been sentenced to penal servitude for life on 15 September 1988 by Cole J, following jury convictions on one count of murder and three counts of unlawful sexual intercourse. The offences arose from a brutal attack on a nine-year-old girl in her home at Tregear in July 1987, in which the applicant sexually assaulted the child and killed her by asphyxiation. Concurrent sentences of twenty years (with eighteen-year non-parole periods) and ten years (with an eight-year non-parole period) were also imposed for the sexual offences, all dated from the applicant's arrest on 22 July 1987.

The applicant sought a redetermination of his life sentence under s 13A of the Sentencing Act, which allows a court to substitute a finite sentence for an indefinite one imposed prior to sentencing law reforms. All time served to the date of the application had been referable to the sexual offences, meaning the applicant had not yet served any period in custody solely attributable to the murder conviction.

  • Whether the life sentence for murder should be redetermined to a finite term under s 13A of the Sentencing Act
  • Whether the applicant had demonstrated sufficient progress in rehabilitation and reduction of risk to justify the fixing of a minimum and additional term
  • Whether the applicant continued to pose a danger to the community, in circumstances where neither he nor the court's expert could explain the cause of his offending

Decision

Newman J considered the applicant's progress in custody alongside the psychiatric evidence before the court. Expert evidence from Dr Lucas was unable to explain the applicant's conduct on the night in question other than as an opportunistic event, and the applicant himself remained unable to provide any explanation for his behaviour. The court regarded both factors as significant indicators that the risk to the community had not been adequately resolved.

The court noted that the applicant had not yet completed the CUBIT program (a custodial program for sex offenders), and that completion of that program could potentially provide a basis for a future finding that he no longer presented a danger. Newman J drew a comparison to another redetermination matter, Glen, in which Wood CJ at CL confronted similar difficulties arising from the combination of youth, the gravity of the offending, and the absence of any apparent explanation. The court acknowledged the applicant's rehabilitative progress had been more substantial than that observed in Glen, but concluded it was insufficient at that stage to justify fixing a determinate sentence.

Newman J declined to set a finite sentence at that time, finding the applicant still presented unresolved community danger. The application was dismissed, and the applicant was directed not to reapply for three years, which the court observed would also allow him to serve a period in custody more clearly attributable to the murder conviction before any future redetermination.

Orders Made

  • The application for redetermination of the life sentence was dismissed.
  • Pursuant to s 13A(8)(b) of the Sentencing Act, the applicant was directed not to present a fresh application until a date not earlier than three years from 15 December 1999.

Key Takeaways

  • Under s 13A of the Sentencing Act, a court may decline to substitute a finite sentence for a life sentence where the applicant's danger to the community remains unresolved at the time of the application.
  • The absence of any satisfactory explanation for the offending, from either the applicant or expert witnesses, supported a finding that community danger had not been adequately addressed.
  • Positive progress in custody, while relevant, does not automatically satisfy the court that a finite sentence should be imposed, particularly where critical rehabilitation programs remain incomplete.
  • A direction under s 13A(8)(b) barring reapplication for three years was appropriate to allow the applicant to complete the CUBIT program and enable a full assessment of his participation in that program.
  • The Supreme Court expressly distinguished between its own redetermination power under s 13A and the separate functions of the Parole Board under s 17(1) of the Sentencing Act.

Legislation and Cases Referenced

Legislation:
- Sentencing Act (NSW), s 13A (redetermination of life sentences)
- Sentencing Act (NSW), s 13A(8)(b) (direction restricting reapplication period)
- Sentencing Act (NSW), s 17(1) (Parole Board functions)

Cases:
- Application of Glen (Wood CJ at CL, 1 October 1999, unreported)