R v Clark [No 3]

[2008] NSWSC 795

CITATION:	R v Clark [No 3] [2008] NSWSC 795
HEARING DATE(S):	10/03/08 - 14/03/08 17/03/08 - 20/03/08 27/03/08 - 28/03/08 31/03/08 01/04/08 - 04/04/08 07/04/08 - 11/04/98 14/04/08 - 18/04/08 21/04/08 - 24/04/08 29/04/08 - 30/04/08 01/05/08 - 02/05/08 18/07/08
JUDGMENT DATE :	11 August 2008
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Kirby J
DECISION:	I sentence you to a term of imprisonment made up of a non parole period of 24 years commencing on 21 July 2005 and expiring on 20 July 2029 with a balance of term of 6 years ending on 20 July 2035. Accordingly, the first date upon which you will be eligible for parole is 20 July 2029. The total sentence therefore involves a term of 30 years expiring on 20 July 2035 with a non parole period of 24 years.
CATCHWORDS:	Criminal Practice & Procedure - sentence - joint enterprise murder - suggested equivalent contract killing - whether life sentence warranted - standard non parole period - parity or proportionality with co-offender.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Sentence
CASES CITED:	Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Previtera (1997) 94 A Crim R 76
PARTIES:	Regina Michael Rex Clark
FILE NUMBER(S):	SC 2006/3605
COUNSEL:	M Hobart SC (Crown) M Thangaraj (Acc)
SOLICITORS:	A Walkowiak - DPP (Crown) Matouk Joyner Lawyers (Acc)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JUSTICE DAVID KIRBY

Monday 11 August 2008

2006/3605 REGINA v Michael Rex CLARK

JUDGMENT ON SENTENCE

1 KIRBY J: Late in the evening on 29 April 2005, Ernest Richard Clark, known as Dick Clark (the deceased), was shot whilst in the rear garden of his home at Bexley. Two bullets were fired. The first struck a glancing blow to the left side of his head. The second was fired at close range to the left side of his forehead. It penetrated his skull, fracturing the base of the skull and other facial bones. Dick Clark staggered a short distance before collapsing on the lawn. About an hour later he was found unconscious by his partner, Ms Jessica Chung. Ms Chung had returned home at about 12.30 am on 30 April 2005. An ambulance was called. Mr Clark was taken to the St George Hospital where he died that afternoon. He never regained consciousness.

2 Michael Rex Clark and his son, Ben Richard Clark, were charged with Dick Clark’s murder. It was the Crown case that they had engaged in a joint criminal enterprise whereby Ben Clark would shoot Dick Clark when Michael Clark was well away from the murder scene. He had to be well away so that he could not be accused of having committed the crime. Michael Clark, according to the Crown, needed that insulation because he had an obvious motive. He was in poor financial circumstances and was a beneficiary under Dick Clark’s Will.

3 When the matter was called on for trial before Patten AJ, Ben Clark pleaded guilty. On 24 August 2007, he was sentenced by Patten AJ to a term of imprisonment of 20 years, with a non parole period of 14 years. Michael Clark, however, pleaded not guilty. In March 2008, he was arraigned before a jury. On 2 May 2008, after a lengthy trial, he was convicted of murder.

4 It remains for me to pass sentence. Before I do so, I should first determine the facts relevant to the sentencing discretion. Where the facts are adverse, they must be proved beyond reasonable doubt. Where they favour Mr Clark, it is enough that they should be established on the balance of probabilities.

The shooting.

5 The circumstances in which Dick Clark met his death are not in doubt. Ben Clark lived with his father, Michael Clark, at Faulconbridge. At about 6.30 pm on 29 April 2005, Ben Clark left Faulconbridge by motorcycle for Dick Clark’s home. At 8.23 pm and again at 8.26 pm, he sent text messages to his father. Michael Clark was then in a restaurant at Richmond with his wife, stepdaughter and her boyfriend. At 8.27 pm, Michael Clark telephoned Ben. They spoke briefly. Ben was then in the Kogarah area, very close to Dick Clark’s home. It was a Friday night. Dick Clark was in the habit of watching the football on a Friday evening.

6 It may be inferred that, at some point soon after 8.27 pm, Ben Clark rode his motorcycle to his grandfather’s home. He took the precaution of parking in an adjacent street some distance away. He was armed with a loaded .38 calibre handgun. His grandfather invited him into the house. Together they sat and watched the football on television, each drinking beer.

7 At about 11.10 pm Ben left the house to go home. He walked up the back steps towards the back gate. His grandfather came outside to see him off. He was standing at the bottom of the steps when Ben Clark turned towards him and fired the first bullet. It was immediately clear that the first bullet had not killed him. Ben Clark descended several steps, moving towards his grandfather, and discharged the gun a second time, directly into his grandfather’s forehead, at close range. This was the fatal shot.

8 Ben Clark then made his escape. He rode back to Faulconbridge. Between 11.44 pm and 11.53 pm, there was an exchange of messages and a telephone call between Michael Clark and Ben. Soon after, Ben arrived home.

Motive.

9 The Crown submitted that the murder was akin to a contract killing. It was a planned execution and the motive was money. It was accomplished when Michael Clark was at a safe distance. Michael Clark, according to the Crown, was in a desperate financial situation. He so dominated his son Ben, that he was able to recruit him to carry out the shooting. Their agreement, according to the Crown, included a promise to Ben that he would share part of the inheritance. It was the Crown’s submission that this crime should be characterised as being within the worst category of murder (s 61(1) Crimes (Sentencing Procedure) Act 1999) (“the Act”).

10 Counsel for Michael Clark contested each assertion. Whilst the jury had determined that there was an agreement between Michael and Ben Clark which involved Ben shooting Dick Clark, that agreement was not the product of Michael’s dominance over Ben. Nor could it be determined, beyond reasonable doubt, that the motive was money. Indeed, according to counsel for Mr Clark, it could not be inferred beyond reasonable doubt that part of their arrangement was that Ben receive a share of the inheritance.

11 The resolution of these issues requires a description of the relationships within the family. Let me begin by describing Ben’s relationship with his father and with the deceased. Ben was born on 26 March 1984. He was 21 years at the time of the murder. His mother, Mrs Rhoda Clark, was Michael Clark’s first wife. There were three children of the marriage. Only Ben opted to live with his father, although his brother later joined him. Rhoda Clark described the relationship between Ben and his father as “particularly close”. Michael Clark’s second wife, Jennifer, simply described them as “father and son”. Family members and friends of Ben denied that Michael Clark dominated his son. Ben, who gave evidence at the trial, described the suggestion of dominance as “rubbish”.

12 Ben Clark said that when he shot Dick Clark he was acting alone and out of fear. He explained that there had been a number of incidents five years earlier when he was working for Dick Clark. They took place during two weeks when he was at Dick Clark’s workshop at Granville in late 2000, or early 2001. His grandfather had repeatedly assaulted him sexually. Eventually, he had anally raped him. He was, at the time, some months short of 17 years old. The assaults were perpetrated in various locations throughout the workshop. The rape occurred in a small and cluttered room towards the rear of the workshop. His wrists had been bound to a shelf whilst he was raped. The jury was instructed that if they believed there was a reasonable possibility that Ben was sexually assaulted by Dick Clark, such that he had his own reasons for disliking his grandfather and may possibly have acted alone, they must acquit Michael Clark. The jury, by their verdict, clearly rejected Ben Clark’s evidence, which was unsurprising. His evidence, in its presentation and detail, was completely implausible.

13 What, then, was the motive of Ben Clark? There was some evidence of ill-feeling between Dick Clark and Ben, arising out of the short time that Ben had spent working in his grandfather’s workshop and showroom in 2000 or 2001. Patten AJ, when sentencing Ben Clark, accepted that Dick Clark probably abused Ben verbally because he regarded him as lazy. He may even have mildly pushed him or shoved him to get him moving. Patten AJ could not exclude the possibility that some ill-feeling persisted, and provided part of Ben Clark’s motivation. I share that view.

14 I am not persuaded beyond reasonable doubt that Michael Clark so dominated his son that Ben Clark, by reason of that relationship and regardless of his own feelings, was prepared to do his father’s bidding. If, as I think likely, Ben Clark had his own reasons for resenting Dick Clark, his recruitment did not require dominance on the part of his father. Nonetheless, Michael Clark, as a parent, was in a position of influence over his son. I am satisfied that it was agreed between them that part of the inheritance, once received, would be given to Ben by Michael Clark.

15 Let me move from that, to the relationship between the deceased and Michael Clark and the question of motive. On the Crown case, there was not only motive, but urgency. There was motive because Michael Clark stood to inherit money. He needed money because he was heavily in debt, with a limited income. There was urgency, according to the Crown, arising from recent changes in his father’s relationship with his partner, Ms Jessica Chung. His father was aged 74 years. His partner, Ms Chung, was a much younger woman, not yet 50 years. They had known each other for more than a decade. Although their relationship had involved intimacy, they had lived separately throughout that time.

16 However, in September 2004, their relationship had changed. Dick Clark sold his business and the flat in which he lived. He was therefore obliged to find another home. He and Ms Chung decided that they would live together in a house which she owned at Bexley. Renovations were undertaken, paid for by Dick Clark. The deceased had also made it known first, that he was contemplating the discharge of Ms Chung’s mortgage in respect of the Bexley property and, secondly, the purchase of a business on her behalf. The Crown alleged that Michael Clark was unhappy with these developments. He was said to be concerned at the dissipation of a significant part of his father’s cash assets. More than that, he was, according to the Crown, resentful of his father’s generosity towards Jessica Chung, which was in marked contrast with his meanness towards him.

17 Some aspects of the Crown case on motive were more persuasive than others. Michael Clark and his wife had relatively substantial debts. They had, between them, a limited income. Nonetheless, they got by. They had lived in this fashion for some time. Their circumstances at the time of the murder were not materially different from their circumstances at other times. Indeed, their position overall had marginally improved. They had a roof over their heads. They lived rent free in a house owned by Jennifer’s parents. Credit had been offered to them by a bank. I accept that it cannot be said that Michael Clark was, at the time of the murder, in a desperate financial situation.

18 However, I am persuaded that there was resentment by Michael Clark towards his father and concern at the dissipation of his father’s money. The resentment arose from a perception of unfairness and meanness on the part of his father towards him, in contrast to his father’s treatment of Ms Jessica Chung. Michael Clark was Dick Clark’s only child, having been adopted at the age of three years.

19 When Michael Clark was a child and a young man, he clearly did not get on well with his father. Michael Clark, as I will explain, was then convicted of various criminal offences and spent some time in gaol. After his release from gaol, he met his second wife, Jennifer. They married in 1991. Some stability was introduced into Michael Clark’s life that had previously been absent. Dick Clark was pleased with these developments. His relationship with his son improved. Dick Clark said to his sister and others that he was proud of Michael. He repeated that statement in a birthday card which he sent him in February 2005, a matter of months before the murder.

20 Whilst Michael Clark and his family were not desperate financially, it was plain that they were struggling. Dick Clark, in contrast, had sold his business in September 2004 and received $800,000. After the sale, there had been discussions between father and son concerning a loan of $50,000. The loan was never made. Michael Clark gave one version as to why it was not made. Ms Jessica Chung had an understanding, but was not directly involved in dealings between Michael and his father. In the absence of Dick Clark, it is difficult to know exactly what happened. But, whatever happened, it was clear by the later part of 2004 that there had been an argument between Michael Clark and his father concerning money. For a time they were estranged. They made up before Christmas and attended the same Christmas gathering. In January 2005, Dick Clark loaned his son $18,500. The loan was documented. Interest was payable.

21 Yet Michael Clark, and indeed members of his family, had gone to some length to please Dick Clark in the months before the murder. They had helped him clean out his workshop and flat and moved his belongings to Bexley. Ms Jessica Chung, on the other hand, had not been involved in the move. Michael Clark had done painting at Bexley to make it ready for his father. He had also done work on another home owned by Ms Chung at Carlton.

22 Further evidence was given by a witness, David Seckold, of a conversation with Michael Clark several months before the murder. According to Mr Seckold, Michael Clark said that he wished his father was dead. He referred to him as “a tight old prick”. The Asian lady was draining all his father’s money.

23 Mr Seckold was cross examined at some length. His evidence must be approached with caution. There had been a falling out between Mr Clark and Mr Seckold after a failed business venture. I accept that he had ill feeling towards Michael Clark. There was a suggestion that Michael Clark had disclosed to Mr Seckold’s wife that her husband was seeing another woman. There were also aspects of Mr Seckold’s evidence which were unreliable. Nonetheless, there was corroboration of the conversation that he recounted, suggesting ill will on the part of Michael Clark towards his father. The corroboration was provided by a recording made as a result of a listening device which captured a conversation between Michael Clark and his wife Jennifer.

24 I return to the issue raised by the Crown submissions. Was Michael Clark’s motive, in being party to a joint enterprise to murder his father, simply the money which he stood to inherit under his father’s Will? Should the crime, as the Crown suggests, be characterised as the equivalent to a contract killing? Unquestionably money was part of Mr Clark’s motivation. However, it was more complex than that. Michael Clark and his father shared a long history. There was, I believe, an emotional dimension to Michael Clark’s actions. Although there had been improvements in their relationship, I infer that there were still undercurrents of resentment and dissatisfaction, each towards the other. Michael Clark’s criminality was not that of a contract killer.

25 The offence plainly involved some planning and premeditation. The Crown drew attention to a feature of aggravation arising from a recent amendment to the Act. By reason of s 21A(2)(eb) of the Act, it is a matter of aggravation if the offence was committed in the home of the victim. The amendment operates in respect of a conviction after 1 January 2008, whenever the offence was committed (cl 57 of Sch 2 of the Act). It is clear from the Second Reading Speech (Hansard p2667) that the circumstance of aggravation apply, even where the assailant was invited by the victim into his home. The intention is that individuals should be entitled to feel safe from harm of any kind within their own home.

26 Let me move from the offence to the offender.

The subjective case.

27 Michael Clark was born on 15 February 1963. He is 45 years old. According to a history given to Mr Watson-Munro, a psychologist, who saw him for the purposes of preparing a report for the sentencing hearing, Mr Clark was raised in foster homes before he was adopted by Dick Clark and his wife. His adoptive parents separated soon after his adoption. He remained for a time with Mrs Clark. His father had, in the meantime, remarried. Michael Clark, at the age of about 14, went to live with his father and his new wife. She already had a child. There was considerable conflict between Michael Clark and his stepbrother, whom he believed was favoured both by his stepmother and his father. He began taking drugs and left school early.

28 In 1981, at the age of 18 years, he was a passenger in a motor vehicle which collided with a pole at high speed. He was seriously injured. He was admitted to hospital in a coma and remained unconscious for about two weeks. He stayed in hospital for four months and then underwent rehabilitation over a period of a further eight months. A neuropsychological assessment by the Wentworth Area Health Service in 2000 stated that Mr Clark had sustained severe brain injury. An MRI demonstrated extensive abnormality to the left frontal and left temporal lobes and less severe abnormality to the right frontal lobe. There was severe damage to the left optic nerve, such that Mr Clark became totally blind in the left eye.

29 In 1995 Mr Clark developed frontal lobe epilepsy. He takes extensive medication. According to the medical evidence tendered at the trial, confirmed by the report of Mr Watson-Munro, Mr Clark suffers difficulty with his memory and an impairment of information processing, as well as anxiety. Mr Watson-Munro also stated that he had poor impulse control. He has periodically suffered from depression. It was also said that he back problems arising from the motor vehicle accident.

30 A statement was tendered by Mr Clark’s wife. In that statement she said that her husband had been diagnosed on 12 September 2007 with a serious liver complaint involving the left lobe and an enlarged spleen. Mrs Clark said that it had been necessary for him to undergo some form of chemotherapy. Although I would have welcomed a neurological assessment of Mr Clark’s condition, rather than a psychologist’s report, and a report from his treating doctor in respect of the liver complaint, I accept that Mr Clark suffers from a number of significant disabilities. As to his intellectual function, he presented as an intelligent and forceful personality. However, I do not doubt that he has difficulties with his memory and other significant disabilities.

31 Returning to Mr Clark’s history, after the motor vehicle accident he accumulated a significant criminal record. He was convicted of various offences of dishonesty in the years immediately following. He was not, at that point, sent to gaol, but was fined or placed upon a bond. In November 1984, he was convicted of a number of drug offences and fined. In March 1986, he was sentenced to three months imprisonment for stealing and false pretences. Later the same year, a six month term of imprisonment was imposed for false pretences, various drug offences and escaping from lawful custody. On 17 April 1989, Mr Clark was convicted of armed robbery, shooting with intent to prevent lawful apprehension, and assault and robbery with an offensive weapon. On the charge of armed robbery, he was sentenced to seven years imprisonment with a non parole period of four and a half years. Lesser concurrent terms were imposed in respect of the other offences. One gathers that Mr Clark had been in custody since 6 May 1988 and was released some time in 1991. He has had no convictions since his release, apart from a minor assault in 1994.

32 However, the Crown drew attention to a conversation in July 2005 recorded by listening device. Mr Clark was speaking with his wife. In the course of the conversation, he acknowledged having committed various offences since his release from gaol, which had not been detected. He had therefore not been charged. The relevance of that conversation, as I understand the Crown’s submissions, is in respect of Mr Clark’s prospects of rehabilitation.

33 Clearly, Mr Clark is not entitled to any leniency. On the question of rehabilitation, his wife provided a lengthy statement in which she described other aspects of her husband’s character, including the significant work that he had performed within the community. I accept that he has done useful work in the community and that that is also relevant to his prospects of rehabilitation. I should mention, however, that there is no remorse. Mr Clark insists that he is innocent.

A life sentence?

34 Against that background, I return to the Crown’s submission that the offence should be characterised as being in the worst category. It was submitted by the Crown that the level of culpability of Mr Clark was so extreme that the community interest in retribution, punishment, community protection and deterrence, could only be met through the imposition of a life sentence (s 61(1) of the Act). My attention was drawn to the judgment of McClellan CJ at CL in Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126 at para [23], where his Honour conveniently set out the principles to be applied when determining whether an offence should be characterised as coming within the worst class of case.

35 However, for the reasons stated, the circumstances giving rise to the offence are far more complex than simple greed. I believe the offence arose, in part, from the relationship between Mr Clark and his father. I also believe the motor vehicle accident suffered by Mr Clark many years before, and the disabilities arising from it, were not irrelevant. Without diminishing the callous and brutal nature of this crime, which was certainly committed partly for financial gain, and with no regard to the sanctity of human life, I believe that a determinate sentence is appropriate, rather than a life sentence.

36 The Crown submitted, in the alternative, that if the offence were not in the worst category, then it was not far below that category. The offence is subject to s 54D of the Act. That section introduced a standard non parole period of 20 years for murder where the offence could be characterised as being “in the middle of the range of objective seriousness”. The objective seriousness of the offence must therefore be evaluated in accordance with R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 and MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93, at paras [32]-[33], determining whether there are reasons for departing from the standard, whether by increasing it or reducing it.

37 Here, there can be little doubt that the offence involved criminality on the part of this offender well above the mid range of objective seriousness. On the other hand, Mr Clark has significant physical disabilities which will certainly make any sentence imposed more onerous for him. He is not physically robust and is disabled in a variety of ways.

38 Counsel for Mr Clark also submitted that there was an issue of parity, or at least proportionality (Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295), arising from the sentence imposed upon the other person involved in the same joint enterprise, namely Ben Clark. Ben Clark was, as I have said, imprisoned for 20 years with a non parole period of 14 years. There was no Crown appeal. Counsel immediately acknowledged that there were significant differences between Michael Clark and his son Ben. Ben was 21 years old when the offence was committed. His father was 42 years old. Ben had pleaded guilty and had received a 15 to 20 percent discount. His father pleaded not guilty and went to trial. Ben had no criminal convictions. His father, Michael Clark, had an extensive criminal history. Nonetheless, it was submitted that Ben’s sentence was relevant.

39 I accept that there is an issue of proportionality, even though there are such obvious differences between Michael Clark and Ben Clark, that there can be no parity. Ben Clark’s sentence serves, to some degree, to moderate the sentence that may otherwise be thought appropriate in respect of Michael Clark.

40 Turning to the prospects of rehabilitation, the sentence I must impose will necessarily be lengthy. Taking account of Mr Clark’s likely age when released to parole, and the other circumstances of this case, including the matters mentioned by his wife, I believe that, notwithstanding his criminal record, his prospects of rehabilitation are reasonable.

41 I have, as required by s 44(2) of the Act, given consideration to the relationship between the term of the sentence and the non parole period. The parole period is less than that suggested by the Statute, but sufficient, in my view, in terms of the supervision which Mr Clark will require. The sentence should commence on the date that Mr Clark was taken into custody, namely, 21 July 2005.

42 Murder has always been regarded as the most serious offence in the criminal calendar. Absent extraordinary circumstances, it calls for a substantial sentence to serve the interests of punishment, including denunciation and general deterrence. Here, the formulation and execution of a plan by Michael Clark to murder his own father, through the instrument of his son, in cold blood, obviously places this crime at the more serious end of the scale. Dick Clark was the much loved partner of Ms Jessica Chung, the brother of Marie Gilbert and the friend of many. I have before me statements from Ms Chung and Mrs Gilbert, which were read in open court. They are a poignant reminder of the horror of this crime, made worse by the gradual realisation that it had been committed by the deceased’s adopted son and grandson. The sympathy of the Court is extended to Ms Jessica Chung and Mrs Gilbert and other family members. I must, of course, deal with this material in a manner consistent with R v Previtera (1997) 94 A Crim R 76 at 85.

43 Michael Rex CLARK, I sentence you to a term of imprisonment made up of a non parole period of 24 years commencing on 21 July 2005 and expiring on 20 July 2029 with a balance of term of 6 years ending on 20 July 2035. Accordingly, the first date upon which you will be eligible for parole is 20 July 2029. The total sentence therefore involves a term of 30 years expiring on 20 July 2035 with a non parole period of 24 years.

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