R v Clarke

[2014] NSWSC 1746

Supreme Court

New South Wales

Case Title:	R v Clarke
Medium Neutral Citation:	[2014] NSWSC 1746
Hearing Date(s):	5 December 2014
Decision Date:	05 December 2014
Before:	R A Hulme J
Decision:	Imprisonment for 22 years with a non-parole period of 16 years 6 months
Catchwords:	CRIMINAL LAW - sentence - murder - conviction after trial - intent to cause grievous bodily harm - spontaneous unexplained killing - offender intoxicated - history of substance abuse - mental condition of minor significance - below mid-range seriousness
Category:	Sentence
Parties:	Regina Michael Bruce Clarke
Representation
- Counsel:	Counsel: Mr E Balodis (Crown) Mr J Fitzgerald (Offender)
- Solicitors:	Solicitors: Solicitor for Public Prosecutions Ramsland Laidler Solicitors
File Number(s):	2013/248209

JUDGMENT

1. R A HULME J: Michael Bruce Clarke (the offender) was found guilty by a jury on 16 October 2014 of the murder of Ms Deborah Wolfgram at Hamilton South, a suburb of Newcastle, on 19 September 2013.

2. Murder is a crime that has a maximum penalty of imprisonment for life and there is also prescribed a standard non-parole period of 20 years. Those are legislative guideposts that I am required to take into account in the assessment of sentence along with all of the other facts and circumstances pertinent to the offence and the offender.

The deceased

1. I am grateful to those family members who provided victim impact statements that were read this morning. They were dignified and eloquent expressions of the extreme grief that the offender's actions have caused. By all accounts, Deborah Wolfgram was a beautiful, loving, trusting and inspiring person. She was not a person to judge others; she was kind and caring to all. Her loss will be felt forever by those who were close to her. Whilst, necessarily, what I have to say in sentencing the offender will be primarily concerned with him and the circumstances of his crime, it should not be thought that I have not firmly maintained in my mind sincere sympathy for Ms Wolfgram's parents and siblings. Again, I extend my condolences.

Facts

1. The offender lived in a modest bedsit-type flat in Fowler Street, Hamilton South. It was accommodation that seems to have been facilitated for him by the Wesley Mission. He was a man who was prone to drinking to excess and smoking cannabis. Some of the people in the complex of unit blocks in that area with whom he associated seemed to have had the same predilection. The evidence in the trial indicated that alcohol and drug abuse were quite a significant problem for him in that when he was interviewed by the police after having spent a month in custody he said that with enforced abstention his head was the clearest it had been for 10 years.

2. The offender commenced drinking on 18 September 2013 at about lunchtime. By about midnight or 1am when he went to bed it seems that he had consumed a lot of alcohol and cannabis. He was, however, a person who had developed a tolerance to such substances and it is difficult to say with any certainty how badly he was affected. It seems safe to say, however, that he was significantly intoxicated, but not to the extent that he was incapable of forming the intention required to establish the charge of murder.

3. Ms Wolfgram was socialising with others at the offender's flat on the evening of 18 September. It does not seem that they were all that well known to each other. There was certainly no suggestion of any animosity between them. When the offender retired to his bedroom to go to sleep, Ms Wolfgram was on the couch in the lounge room. She had been provided with a pillow and a blanket.

4. The following morning the offender contacted a friend, Mr Christopher Little, at about 8.30am and said that he was in trouble and needed to talk. Mr Little went over to the offender's place and they went for a drive. The offender told him that he had killed a girl; he had "snapped" and hit her. He said that he had thought about ringing the police but could not because he did not want to go to gaol. He said he woke up in the morning thinking it was a dream but the girl was dead. He had put the bed over the body so that no one would see it. He intended to get rid of the body in the Belmont sand dunes.

5. Mr Little was deeply troubled by this and contacted the police. Detective Sergeant Kelvin Wink and other police went to the offender's home in the mid to late afternoon of 19 September. The offender admitted that there was a dead body in his flat. He was arrested. The deceased's body was found naked, wrapped in a blanket underneath an upturned mattress in the offender's bedroom. Her clothing was in a garbage bag in his wardrobe. The scene was indicative of the fatal assault having occurred in the bedroom but that is not entirely clear.

6. A post-mortem examination revealed that Ms Wolfgram had died of the effects of blunt force trauma. She had received a number of heavy blows to the head, primarily to the left side of her face.

7. The offender agreed to be interviewed by police. He protested that he had been so intoxicated that he was unable to recall all that had happened. But he did give an account, in effect, that he had been woken by someone who he could not identify looming over his bed. This awakened in him thoughts of his uncle looming over him when he was in bed when he was a teenager. He had been a victim of sexual abuse by his uncle and this revived his fears of being sexually assaulted again. He told police that he had punched the person as hard as he could. His defence at trial was that he had responded in self-defence, genuinely believing that in order to defend himself it was necessary for him to take hold of the person by the throat and belt him or her to the head until the person was motionless. He told police in this interview that it was only when he awoke the following morning that he realised the person who he had struck out at was Ms Wolfgram.

8. I should mention that Ms Wolfgram was a 55-year-old woman who was 5 feet 5 inches tall and very slight; she weighed some 43 kg.

9. While the offender was still being held in custody at the Newcastle police station on 20 September he contacted the investigators and indicated that he was troubled by his inability to recall what had happened and that he was deeply remorseful. He also indicated a desire to make reparation to the deceased's family.

10. About a month later, the offender made contact from Cessnock Correctional Centre with Detective Wink. He indicated that he had some further recollection of what had occurred. Arrangements were made for him to be brought to Newcastle police station and another interview was conducted. In this interview, the offender claimed that through a process of dreams, nightmares and flashbacks he had recalled that when he was woken in the early hours of 19 September he had thought that the person who was in his bedroom was a former girlfriend with whom he had had a falling out and who bore him animosity and had previously threatened him with knives.

11. The Crown Prosecutor argued before the jury that given these inconsistent accounts, the offender's claim of having acted in self-defence was incredible. Further support for that proposition was derived from the evidence of Mr Little. He had said that during his conversation with the offender on the morning of 19 September he had suggested that the offender should go to the police and claim that he had been attacked and had responded in self-defence. Mr Little suggested this so as to curry favour, or not get off side with the offender. Mr Little's evidence was disputed. But the manner in which he gave it indicated to me that whilst he may have been mistaken about some aspects, he was genuinely doing his best to tell the truth. Demeanour is often a misleading thing in the assessment of the credibility of a witness, but in Mr Little's case I gained the distinct impression that he was a witness who did not want to give evidence against a friend but felt compelled to do what was right.

12. I can well understand the jury's rejection beyond reasonable doubt of the offender's claim to have acted in self-defence. The offender's various explanations for what occurred included a number of inconsistencies and matters not supported by objective evidence that were identified in the written submissions of the Crown Prosecutor. It is difficult to be sure about the truth of any such matters.

13. But that leaves the offender's actions in so savagely beating Ms Wolfgram difficult to understand. I do accept that his significant degree of intoxication had something to do with it. I accept the Crown's concession that he acted with an intention to inflict grievous bodily harm, rather than to kill. But there remain quite a number of matters that are unexplained. Why was Ms Wolfgram in the deceased's bedroom (assuming the assault occurred there, which is not completely certain)? What interaction was there between the pair before he initiated his murderous assault? How did her clothing come to be removed? Why was her body left bleeding on the offender's bed for a period of time before being wrapped in a blanket and then "hidden" under the upturned mattress?

14. There is also a question as to whether the offender was serious when he spoke to Mr Little of intending to dispose of the body in the Belmont sand dunes. In relation to this, I accept Mr Little's evidence, particularly having regard to the fact that he reported soon after to Senior Constable Todd Clayton that the offender was going to dispose of the body. Further support derives from the unchallenged evidence of Ms Kim James. She said that on 19 September the offender had asked to borrow her car at 4.30am the next morning in order to go to Swansea.

15. The best I can do is to conclude that the fatal assault was something that occurred on the spur of the moment. Something occurred between the pair that caused the offender to, as he put it, "snap". He continued striking Ms Wolfgram to the head until he realised that she was no longer moving. He thereafter made a rudimentary attempt to conceal her body with a view to a possibility of later disposing of it. I accept that intoxication influenced the offender's actions and thinking, although by no means should I be taken as suggesting that it provides any excuse.

16. This was an unplanned spur of the moment killing where grievous bodily harm was intended. It was not a sustained attack, but it did not need to be to achieve the offender's purpose. It did not involve the use of any weapon but did involve heavy repeated blows with the offender's fists to a vulnerable part of his victim's body. It must have been an attack of considerably savagery. Mr Fitzgerald, counsel for the offender, submitted that the objective seriousness of the offender "falls to the lowest range in the spectrum for the crime of murder". The Crown Prosecutor submitted that it was below mid-range. I am prepared to accept the latter but am not prepared to accept that it is in the lowest range.

Personal circumstances of the offender

1. The offender is now 44 years old. He is the second oldest of five siblings. He was brought up in Caves Beach. He told Dr Olav Nielssen, forensic psychiatrist, that his childhood was mostly happy but it was marred by having been sexually assaulted by an uncle.

2. He was educated to Year 10 level. He excelled at sports. He completed an apprenticeship as a gardener and has a certificate in horticulture. He was self-employed as a tree lopper for many years but for the 10 years or so before his arrest he had mainly worked as a bar manager.

3. He had never married. He has a child from a previous relationship who is now aged 11 but who he has not seen for the past three years. He has been visited in gaol by his mother, his sister and one of his brothers.

4. Alcohol and drugs have marred his life. He told Dr Nielssen that he was a regular drinker and in the months leading up to the murder he was drinking more heavily than in the past. He was also using cannabis at a dangerous level; he would start when he woke in the morning and continue throughout the day. The offender also told Dr Nielssen that "it doesn't take much to burr me up when I am drinking" and that he had been in numerous altercations when affected by alcohol in the past. He said "if ever I am in any sort of trouble it usually comes down to alcohol".

5. The offender's criminal record is unsurprising having regard to this history. There are drink driving, assault and sundry other offences, all dealt with by magistrates in the Local Court by way of fines and bonds. This is the first time he has been imprisoned.

6. The history obtained by Dr Nielssen and his review of medical records indicated that the offender had been thought to suffer from mental ill health for some years and had been prescribed a variety of medications. Dr Nielssen made the diagnoses that the offender suffers from "Substance use disorder"; "Substance induced hallucinosis" and possibly "Bipolar mood disorder". The first of those is unsurprising. The second diagnosis was made on the basis of an account given by the offender of having auditory hallucinations and the perception that other people were aware of what he was thinking, presumably something triggered by chronic heavy cannabis use. Dr Nielssen was somewhat guarded about the third condition, given that it was partly based on a diagnosis made by a general practitioner after a single interview in 2008. Dr Nielssen did not elicit a history of aspects which might confirm it.

7. The history provided to Dr Nielssen included that the offender had consumed a substantial amount of alcohol and cannabis on the day and during the night of the offence. I am prepared to accept that because it coincides with witnesses descriptions of him being extremely intoxicated.

8. The offender has been receiving antipsychotic medication in gaol in order to treat the hallucinosis. Dr Nielssen considered that this is a condition that is likely to have a full remission over time and he may be able to withdraw from such medication. However, he also noted that the offender is at increased risk of later episodes of psychosis because of the effect of long term substance use and past symptoms. Ongoing psychiatric review was recommended.

9. Dr Nielssen noted some positive qualities in the offender. He had what the doctor considered a relatively limited criminal history. He had shown an ability to hold down long term employment and has family support. He was seemingly well regarded in the prison environment and had expressed what the doctor thought was an appropriate level of remorse regarding the death of Ms Wolfgram.

10. The report of Dr Nielssen concluded with the opinion that the offender's main problem was substance use. He considered that his longer-term prognosis would be directly related to how he is able to manage this condition in the years following his release from prison.

11. A positive indicator of the offender's attitude to dealing with this issue is provided in the testimonial of his uncle (who I hasten to add is not the one who sexually abused him as a child). Mr Leonard Steele is an "Alcohol and Other Drug Worker" who facilitates AA meetings in Cessnock Correctional Centre. He confirmed the offender's attendance at these meetings and said that the offender also encouraged the attendance of other inmates dealing with similar issues. It was Mr Steele's opinion that when the offender is sober, "he is one of the most caring people I know".

12. I also received a testimonial from the offender's mother. Amongst other things, she confirmed that his life had been adversely affected by the sexual abuse he suffered as a child. She also confirmed her continuing support for him.

13. Another testimonial from a person who had known the offender more in the past than in recent years indicated that he was a person of many good qualities before his descent into drug and alcohol abuse.

Assessment of sentence

1. On the question of remorse, I accept Mr Fitzgerald's submission that the offender has always acknowledged being responsible for committing the acts that caused the death of Ms Wolfgram. He is to be given credit for the trial being conducted with that acknowledgment. However, I am not persuaded that he is genuinely remorseful. Dr Nielssen thought he was, but did not really explain why. He also noted that the offender continued to maintain a claim of having acted in self-defence. I am prepared to accept that the offender is regretful, but that is far as I am prepared to go.

2. It was submitted that the offender is unlikely to reoffend and has good prospects of rehabilitation. However, these issues very much depend upon his ability to deal with his drug and alcohol issues and they present a long-term challenge for the offender. He seems to be motivated at present to deal with them, but how he manages once released back into the community is difficult to forecast given the entrenched nature of the problem. The real concern is his candid concession to Dr Nielssen of the connection between his abuse of alcohol and violent conduct. I consider that his prospects of rehabilitation are, at most, reasonable.

3. There is some history of mental ill health as I have mentioned. It is not something that seems to have had any bearing upon the commission of the offence. It warrants a slight reduction in the emphasis to be given to general deterrence but is otherwise not of any great significance. Other purposes of sentencing remain pertinent, particularly the imposition of adequate punishment for the offence, personally deterring the offender, recognising the harm he has caused, making him accountable and denouncing his conduct.

4. The offender has been in custody since his arrest on 19 September 2013 and so his sentence must be backdated in order to take this into account.

5. Mr Fitzgerald submitted that there were special circumstances warranting a reduction of the proportion of the sentence to be represented by the non-parole period. I have considered this issue but have determined that no adjustment is warranted. The parole period allowed for when the non-parole period is at the usual three quarters of the total term will be sufficient to deal with issues to assist the offender upon his release into society. The non-parole period I have in mind is necessary to reflect the gravity of his crime as well as all of the other aspects relevant to sentence.

Sentence

1. Convicted.

2. Sentence to imprisonment comprising a non-parole period of 16 years 6 months and a balance of the term of the sentence of 5 years 6 months. That is a total sentence of 22 years.

3. The sentence is to date from 19 September 2013. The non-parole period will expire on 18 March 2030 and the total term will expire on 18 September 2035.

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