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Supreme Court 4 May 2005

REGINA v Rodney Thomas CLARKE

[2005] NSWSC 413

Sexual offencesHomicide
MURDER, ASSOCIATED WITH SEXUAL ASSAULT VICTIM A NINE YEAR OLD GIRL APPLICANT TWENTY

Citation: Regina v Rodney Thomas Clarke [2005] NSWSC 413
Court: Supreme Court of New South Wales
Date: 4 May 2005
Judge(s): Hidden J

Background

In September 1988, the applicant was convicted of the murder of a nine-year-old girl and three counts of sexual intercourse with a person under the age of ten. The offences were committed in July 1987 when the applicant, then aged twenty-one and of limited intellect, entered the victim's bedroom at night, sexually assaulted her, and caused her death by asphyxiation. Cole J imposed penal servitude for life on the murder count, alongside concurrent determinate sentences of up to twenty years for the sexual offences.

The applicant had previously sought redetermination of his life sentence in 1995 under the then-applicable Sentencing Act 1989. That application was refused by Newman J in December 1999, with a direction that no further application be made for three years. In August 2003, the applicant filed a fresh application under s 44(5) and Schedule 1 of the Crimes (Sentencing Procedure) Act 1999, which came before Hidden J.

The central question was whether a non-parole period should now be set in association with the existing life sentence, having regard to the gravity of the offending and the applicant's progress during his time in custody.

  • Whether the court should exercise its discretion to set a non-parole period for the existing life sentence under the Crimes (Sentencing Procedure) Act 1999
  • What weight should be given to the applicant's subjective circumstances at the time of offending, including his age and limited intellect
  • What weight should be given to the applicant's conduct in prison, including participation in sex offender programs and a later admission of sexual fantasy relating to the victim
  • How to calibrate a non-parole period that reflects the criminality of both the murder and the associated sexual offences, while incorporating the time already served under the concurrent determinate sentences

Decision

Hidden J noted the profound seriousness of the offending: a premeditated nocturnal entry into the home of a sleeping family, the sexual assault and killing of a young child, and a prolonged pattern of denial followed by a fabricated defence at trial. His Honour found that the uncertainty about whether the applicant had intended to kill the victim (as opposed to having caused her death through reckless indifference to human life) was of no practical significance at the time of original sentencing, given the terms of the then-applicable s 19 of the Crimes Act 1900, under which a life sentence was the prima facie sentence for murder absent significantly diminishing mitigating circumstances directly related to the commission of the crime.

In assessing the application, Hidden J considered the applicant's limited intellectual functioning and his age of twenty-one at the time of the offences as relevant subjective factors. However, the nature and gravity of the offending remained at the extreme end of the criminal spectrum. The applicant's later admission during therapy that he had harboured sexual fantasies about the victim before the offences was treated as a candid and ultimately positive development in his rehabilitative progress, rather than as an aggravating circumstance at this stage.

Hidden J found that the applicant had made meaningful progress within the prison system, including significant engagement with sex offender treatment programs. The court accepted that, with ongoing counselling and post-release support, the applicant's rehabilitation was not an unattainable goal. Setting a non-parole period (while leaving the life sentence itself in place) was considered the outcome that best served community protection, as it would make the applicant eligible for parole but subject to indefinite supervision and the ongoing sanction of that parole regime.

In fixing the non-parole period, Hidden J declined to approach the exercise mathematically but took into account the totality of the four offences, the applicant's subjective circumstances, his prison progress, and the fact that the nature of his offending had required him to serve his sentence on protection throughout. A period of twenty-eight years, running from the date sentence was originally imposed, was determined to be appropriate.

Orders Made

  • Application granted
  • Life sentence confirmed; no specified term set
  • Non-parole period of twenty-eight years fixed, dating from 22 July 1987
  • Applicant eligible for release on parole from 21 July 2015

Key Takeaways

  • Under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999, the Supreme Court retains the power to set a non-parole period in association with a continuing life sentence without converting that sentence to a specified term.
  • A non-parole period fixed in a redetermination of this kind must itself reflect the full criminality of all relevant offending, including associated offences whose concurrent determinate sentences have already expired.
  • Significant engagement with prison rehabilitation programs, including sex offender treatment, is a relevant and potentially weighty consideration on a redetermination application, even where the original offending was of the gravest kind.
  • The court found that a later therapeutic admission of pre-offence sexual fantasy, while disturbing in context, demonstrated a candour consistent with genuine rehabilitative progress rather than warranting adverse treatment at the redetermination stage.
  • Leaving a life sentence intact while setting a non-parole period was identified as the sentencing structure that best serves community protection, given that any eventual release on parole would be subject to the ongoing authority of the relevant body and the applicant would remain subject to the parole regime indefinitely.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(5) and Schedule 1
- Sentencing Act 1989 (NSW), s 13A (since repealed)
- Crimes Act 1900 (NSW), s 19 (since repealed)

Cases:
- R v Clarke [1999] NSWSC 1225 (Newman J, prior redetermination application)
- R v Bell [1985] 2 NSWLR 466
- R v Garforth (CCA, unreported, 23 May 1994)
- R v Fernando [1999] NSWCCA 66
- R v Harris (2000) 50 NSWLR 409
- R v Merritt (2004) 59 NSWLR 557
- R v Lewthwaite (unreported, 31 July 1992)