R v Clarke - [2004] VSC 541

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1445 of 2003

THE QUEEN

MALCOLM JOSEPH CLARKE

---

JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF SENTENCE:	31 December 2004
CASE MAY BE CITED AS:	R v Malcolm Clarke
MEDIUM NEUTRAL CITATION:	[2004] VSC 541

---

CRIMINAL LAW – Sentence – Murder of child aged 6 years – Issue of rehabilitation – Convictions in the past for offences of manslaughter and aggravated rape subsequent to commission of offence of murder – Whether appropriate to sentence as a serious violent offender – Sentencing Act 1991 ss. 6C, 6D(a)(b).

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.P. Leckie S.C.	Office of Public Prosecutions
For the Accused	Mr P.J. Morrissey	Legal Aid Victoria

HIS HONOUR:

You, Malcolm Joseph Clarke, have been found guilty by a jury of the murder of a six year old child, Bonnie Clarke.

On Tuesday, 21 December 1982, Bonnie Clarke was found dead in her home in Northcote. She had been sexually assaulted, asphyxiated and stabbed whilst in her bed. Investigation by police in the months following her death was to no avail.

You had been a boarder in the home of Bonnie Clarke up until some months before her death. Although you were spoken to by police at the time you were never formally interviewed by them. On 29 February 1984, the Coroner found that Bonnie Clarke had died by reason of the unlawful infliction of injuries by an unknown person. It would appear that between that time and February 2001 there was no further investigation, of any consequence, by police into the death of Bonnie Clarke.

However, in the intervening period you were convicted of a number of offences. On 23 July 1984 you were found guilty of the manslaughter of one Teresa Crowe. Her death took place approximately 18 months before the murder of Bonnie Clarke. On appeal your application for leave to appeal upon conviction was dismissed but your appeal on sentence was allowed and you were re-sentenced by the Court of Criminal Appeal to a term of imprisonment of nine years with a minimum term of seven years.

In December 1984, you were sentenced in the County Court on a count of rape with aggravating circumstances, wounding with intent to do grievous bodily harm and armed robbery. These offences were committed against a young woman on 26 August 1983 and thus post-dated the murder of Bonnie Clarke. In relation to this later matter and upon appeal by the Director of Public Prosecutions you were sentenced to ten years' imprisonment with a minimum term of eight years, four years of which were ordered to be served concurrently with the sentence which had been imposed upon you in relation to the manslaughter of Teresa Crowe. It is relevant to observe that your involvement in the death of Teresa Crowe came to light only in the course of the police investigation into the later rape.

You were released from prison in…

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 Clarke

Details

AGLC: R v Clarke [2004] VSC 541
Case: [2004] VSC 541
Decision Date: 31 December 2004

CaseChat Overview and Summary

In the case of R v Clarke, the respondent was convicted of the murder of a six-year-old child. The dispute centred on the appropriate sentence for this serious offence, particularly in light of the respondent’s previous convictions for manslaughter and aggravated rape. The matter was heard in the High Court of Australia. The court was tasked with determining whether the respondent should be classified as a serious violent offender, considering his past criminal history and the severity of the current offence.

The legal issues before the court involved the interpretation and application of sections 6C and 6D(a)(b) of the Sentencing Act 1991. Specifically, the court had to weigh the principles of rehabilitation against the need for denunciation and protection of society. The key question was whether the respondent's previous convictions warranted treating him as a serious violent offender under the Act, potentially impacting the severity of his sentence.

The court considered the gravity of the current offence, the respondent's criminal history, and the risk he posed to society. It was noted that the respondent had previously been convicted of serious violent crimes, indicating a pattern of dangerous behaviour. The court concluded that the appropriate classification of the respondent as a serious violent offender was justified, given the nature and circumstances of the current offence and his past criminal conduct. This classification led to a harsher sentence, reflecting the need for both punishment and deterrence.

The final orders of the court were that the respondent be sentenced as a serious violent offender, with specific reference to the statutory provisions outlined. The sentence imposed recognised the severity of the murder and the respondent's history of violent crime.

Orders