Citation: Regina v Allan Clifford Clarke [2004] NSWSC 1125
Court: NSW Supreme Court, Common Law Division
Date: 26 November 2004
Judge(s): Barr J
Background
The offender was found guilty by a jury of the manslaughter of a neighbour at Seven Hills on 12 April 2003. The events began when the deceased, who had been drinking, argued with the offender's daughter in the street outside his home and threw a beer bottle at her. Although the bottle missed, she was distressed and went to her father's house to report what had happened.
On hearing his daughter's account, the offender took a hunting knife from his house and walked to confront the deceased. A physical altercation followed on the grass verge outside the deceased's home. The offender made multiple thrusts with the knife; one pierced the deceased's chest, lacerating his heart and pulmonary artery and causing his death.
The deceased's long-term partner and two children were left to grieve his death. The offender was arrested on the day of the killing and remained in custody throughout the proceedings.
Legal Issues
- Whether the manslaughter verdict rested on provocation, excessive self-defence, or an unlawful and dangerous act, and which basis was appropriate for sentencing purposes.
- Whether the offender intended to inflict grievous bodily harm, or merely to kill, or acted without specific intent.
- Whether the offender genuinely believed he was acting in self-defence.
- How the objective seriousness of the offence should be assessed and where it fell on the range for manslaughter.
- What sentence, including non-parole period, was appropriate given the offender's criminal history, personal circumstances, and prospects of rehabilitation.
Decision
Barr J was satisfied beyond reasonable doubt that the offender intended to inflict grievous bodily harm when he approached the deceased with the knife. That finding meant it was inappropriate to sentence on the basis of an unlawful and dangerous act alone. His Honour was also satisfied beyond reasonable doubt that the offender was not acting in self-defence: the deceased had not invited a confrontation and had no intention of harming the offender. The offender's evidence that he feared the deceased was not accepted.
The verdict was properly grounded in provocation. The offender acted under the sting of what his daughter had reported, and the deceased's conduct was capable of causing an ordinary person in the offender's position to lose self-control and form an intent to kill or inflict grievous bodily harm. However, the provocation was assessed as being of a low order. Once the bottle missed the daughter, she was no longer in danger, and the deceased's use of a belt during the confrontation was purely defensive.
Barr J placed the offence in the mid-range of seriousness for manslaughter. Aggravating factors included the use of a hunting knife and the fact that the offender drove the confrontation throughout, advancing while the deceased retreated. Mitigating factors included the opportunistic rather than planned nature of the offence.
On personal circumstances, the offender had a lengthy criminal history, though only one prior conviction for violence. His Honour accepted that the offending was out of character in terms of violence, found the likelihood of reoffending slight, but assessed rehabilitation prospects as only moderate. The offender expressed sorrow that the deceased had died but maintained that the stabbing was accidental, which limited the weight given to remorse.
Orders Made
- Non-parole period of six years, taken to have commenced 12 April 2003, expiring 11 April 2009.
- Balance of sentence of two years, expiring 11 April 2011.
- The offender became eligible for parole on 11 April 2009.
Key Takeaways
- Where a jury returns a manslaughter verdict on multiple possible routes, the sentencing judge must determine, on the evidence, the factual and intentional basis that actually underlies the verdict before imposing sentence.
- Provocation sufficient to reduce murder to manslaughter need not be severe: Barr J found the deceased's conduct "only just sufficient" to support the manslaughter verdict rather than murder, and that assessment directly informed the mid-range objective seriousness finding.
- A finding that an accused intended to inflict grievous bodily harm forecloses sentencing on the lesser basis of unlawful and dangerous act, even where that route to manslaughter was available at trial.
- An extensive criminal history, while not directly aggravating the particular offence, can disentitle an offender to leniency and affect the overall sentencing calculus.
- The Supreme Court confirmed that a victim impact statement is received with the court's sympathy but is not taken into account in determining the sentence itself.
Legislation and Cases Referenced
No legislation or cases were cited in the text of the judgment provided.