R v Black - [2011] VSC 152

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT GEELONG

CRIMINAL DIVISION

No. 0110 of 2010

THE QUEEN

KAREN DIANNE BLACK

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JUDGE:	CURTAIN J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2011
DATE OF SENTENCE:	12 April 2011
CASE MAY BE CITED AS:	R v Black
MEDIUM NEUTRAL CITATION:	[2011] VSC 152

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DEFENSIVE HOMICIDE – Plea of guilty – Family violence – Remorse - Prisoner surrendered herself to police – Full admissions and co-operation – Good character and no prior convictions – TES: 9 years with a non parole period of 6 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kissane	Office of Public Prosecutions
For the Accused	Mr L. Carter	Robert Stary Lawyers

HER HONOUR:

Karen Dianne Black, you have pleaded guilty to one count of defensive homicide. No prior convictions are alleged against you.

On the afternoon of Friday 30 October 2009, you were at home with the deceased, your de facto husband, Wayne Clarke, in the house that you shared at 5 Beretta Court, Corio. Your son, Clint, at that time was also living at that address. On that morning, you had returned from your nightshift work as a machinist at Godfrey Hirst, and together, you and the deceased went shopping and then to a hotel and drank alcohol. After you returned home, an argument ensued over Mr Clarke not wanting to go to his work later that night. During the course of the argument, which continued over a period of time, Mr Clarke made reference to your children and, in particular, to your son, Clint Black, which it appears exacerbated the argument. At this stage, you moved into the kitchen and Mr Clarke followed you. As it appears from the photos, the kitchen is a small U-shaped area and the argument continued, with Mr Clarke coming up to you and sticking his chest out and in that way pinning you in the corner of the kitchen. You told the police in your record of interview that Mr Clarke liked to stick his chest out “because he’s a lot taller than me”.[1] You told Mr Clarke that he was pushing it too far, and as he had you pinned in the corner of the kitchen, he was jabbing you in the body. You then grabbed a kitchen knife, however Mr Clarke continued to corner you and, in the Crown’s words, “egg you on”, and in those circumstances you stabbed him twice to the left chest.
[1]Question 127, record of interview.

After Mr Clarke had been stabbed twice, you went into Clint Black’s bedroom and told him that you had hurt Wayne. Your son went into the kitchen and saw Mr Clarke, grabbed some towels and told you to leave the premises. He called his girlfriend at 3.57pm and asked if you could go to her place. Your son then attempted to perform first aid before carrying Mr Clarke to his car and placing him in the back seat, and as he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Black

Details

AGLC: R v Black [2011] VSC 152
Case: [2011] VSC 152
Decision Date: 12 April 2011

CaseChat Overview and Summary

In the case of R v Black, the defendant, who had pleaded guilty to a charge of homicide, surrendered herself to police, made full admissions, and co-operated throughout the investigation. The incident occurred in a context of ongoing family violence, and the court had to consider a range of mitigating factors in determining sentence. The court was tasked with assessing the appropriate penalty for the offence, taking into account the defendant’s remorse, character, and the circumstances surrounding the incident. The prosecution sought a sentence reflecting the gravity of the offence, while the defence argued for a more lenient penalty, citing the defendant’s background and the context of the incident.

The court examined the principles of sentencing for homicide, focusing on the need for general and specific deterrence, as well as the circumstances of the offence and the offender. Key issues included the nature and extent of the defendant’s remorse, her cooperation with authorities, her previous good character, and the impact of the family violence context on her actions. The court also considered the principle of proportionality and the need to ensure that the sentence reflected the seriousness of the offence, while also acknowledging the mitigating factors.

After careful consideration of these factors, the court determined that the appropriate sentence was a term of imprisonment of nine years, with a non-parole period of six years. The court found that the defendant’s remorse, cooperation, and good character were significant mitigating factors, but balanced these against the need for general deterrence and the gravity of the offence. The sentence reflects a careful weighing of the various considerations, resulting in a penalty that addresses both the need for punishment and the mitigating circumstances of the case.

The court ordered that the defendant be detained in custody, pending transfer to a correctional facility to serve her sentence. The sentence was imposed with due regard to the principles of justice and the specific circumstances of the case, providing a resolution that recognises both the gravity of the offence and the mitigating factors present.

Orders