R v Clarke
[2004] VSC 541
•31 December 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1445 of 2003
| THE QUEEN |
| v |
| MALCOLM JOSEPH CLARKE |
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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 | |
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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).
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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 late 1992 and you did not come to the attention of police until they reopened the investigation into the death of Bonnie Clarke in 2001. In early 2002 an undercover operation was commenced by police. This resulted in your making admissions to undercover police as to the part played by you in the death of Bonnie Clarke. Those admissions were made in the afternoon of 6 June 2002. Later that day you made further admissions to the homicide squad in the course of a formal interview. You told undercover police that you were highly intoxicated at the time of committing the offence. You said that you came around the back lane and over a fence at the rear of the house where Bonnie Clarke lived. You said that you inserted your fingers into her vagina. You told police that she woke up and tried to scream. You covered her head with a pillow. Her hand rose up and then fell to the bedside. You said you then stabbed her in the chest with a knife.
You told homicide squad police that you had stabbed her in panic. You later claimed that your confession was false and your trial was conducted upon that basis. The jury, however, was satisfied beyond reasonable doubt that your admissions made to police, both undercover and in the course of a formal interview, were accurate and reliable.
The murder of a young child in such brutal circumstances is a vile crime. More than two decades later the manner of her death continues to haunt her parents. The victim impact statements filed by both of them are moving statements of the dreadful consequences that your evil acts have had upon them throughout their lives. In particular, her mother has had to live with the suspicion held by some police that she was responsible for the crime.
Clearly, this crime is a most serious case of murder. You entered the home of a young child while she and her mother were sleeping. You used the knowledge of the layout of the home and her circumstances which you had obtained whilst you were a trusted co-inhabitant in the home. You abused her sexually. You then asphyxiated her and stabbed her with a knife with which you were then armed. After endeavouring to remove evidence of your presence you left her body to be found by her mother in the morning. What she found can only be described as a parent's worst nightmare.
However, your counsel submits that there are factors relevant to the commission of the offence which are mitigatory. First, he submits that there is no evidence that the killing of Bonnie was premeditated nor, he submits, did it form part of any “thrill of the sexual attack” that took place. I accept that that is so although there can be no doubt that there was premeditation involved in the entry into the house for whatever purpose you had in mind. Your entry to the house required the scaling of a fence, negotiation of the back yard, and the opening of a door before walking into Bonnie's room.
Mr Morrissey contends further that your interference with the crime scene constituted no more than an attempt to conceal the crime in a panic. I accept that that is so and in particular, I accept you had no intention to cast suspicion upon Bonnie's mother.
Furthermore, Mr Morrissey relies upon your statements to police that you were heavily affected by alcohol at the time of the offence. It may well be that your judgment was so affected as you have stated but at the same time, your drunkenness does not appear to have affected you to the extent that it rendered you incapable of climbing the rear fence, entering the premises without disturbing its occupants, tidying up the bed and room in which you left Bonnie and then departing without detection.
Mr Morrissey contends further that there is no evidence that suggests you had a knife with you with the intention of using it upon Bonnie. Your explanation to police was that you had the knife for self protection in the event of a fight in a hotel. I accept that there is no intention of premeditation by you in relation to the use of the knife but nevertheless, the fact that you did thrust it into Bonnie after you believed you had asphyxiated her is an aggravating factor in the murder.
I have been told something of your personal history. You were born on 16 January 1955 and accordingly you are now 49 years of age. Your parents are both still alive. You are the eldest of five children. You attended primary school in Boronia and had trouble with reading and arithmetic. You were bored at school. It would appear that at one stage in your schooling you spent some time in a special school. You attended a secondary school in Boronia but you experienced difficulty there and were sent to Baltara, a school for people with challenging behaviours. You obtained employment in a twine factory and then Victorian Railways and then as an assistant projectionist in a cinema before being imprisoned in 1984.
Your health over recent years has been somewhat indifferent, you having suffered from migraine and hypertension. There is evidence before me that your hypertension and migraine and smoking habit are likely to reduce your lifespan. There is some suggestion that you may have suffered a minor stroke earlier in the year although that diagnosis is far from confirmed.
I have a body of psychiatric and psychological material which has been tendered before me by your counsel. You were examined by Dr Brian Hutchinson, a psychiatrist, whilst you were in prison in March 1990. You told Dr Hutchinson that you commenced to drink alcohol regularly after you became involved with the cinema at the age of 20. Although you denied to him responsibility for the death of Teresa Crowe and denied to him any mutilation of her body you did maintain that alcohol was to blame for your crimes.
Dr Hutchinson said:
“I felt that he shouted the facts in his favour and like previous assessors found that his tendency (sic) to blame alcohol for all his troubles.”
Dr Hutchinson said further in his report of March 1990:
“He presents as a lonely man with a tendency to get lost in fantasy. With alcohol he is dangerous to women and will be again if he starts to drink again.”
I have also been provided with a report prepared by a psychologist, Mr Watson-Munro, and dated 9 October 1990. He had had access to what he described as “extensive documentation” including “comprehensive psychiatric and psychological reports” based upon earlier examinations of you. Those reports are not before me but on the basis of those reports Mr Watson-Munro noted that the salient features of your history related to your ongoing alcohol dependence at the time of your early offences and your poor impulse control in relation to your sexuality. Likewise, Mr Watson-Munro expressed his concern at your attempts to reduce your culpability by blaming it on the level of your intoxication at the time of the offences. I note in this regard that the mother of Bonnie Clarke gave evidence before the jury that during the time you lived as a boarder with her you had “the odd drink” but she did not observe you to drink “excessively”.
Mr Watson-Munro said further that at the time he examined you he concurred with earlier opinions that:
“This man remains potentially dangerous in the setting of his poor sexual impulse control and his propensity for alcohol consumption.”
You told Mr Watson-Munro it was your intention to have a “dry parole”. As stated above, you were released upon parole in 1992. Your counsel submits that it was your intention to change your life at that time. You undertook a number of programs in prison although I note it does not appear that you were provided with a sex offenders program. In particular you passed Year 10 English whilst in prison and undertook other courses as well.
Upon your release from prison you lived at first with your parents in the Bendigo area and undertook a variety of part time employments. You then returned to Melbourne where you obtained employment in nursing homes in 1994. You obtained relevant certificates including those in First Aid, nursing assistance and in attendant care. You also resumed your earlier interest in Puffing Billy and became an enthusiastic supporter. You met your fiancée, Lynne, in 1998 and you have formed a close attachment to her. Her statement, produced before me upon your plea and in your support demonstrates her view of you as a caring person. Also tendered before me were three testimonials from persons involved with Puffing Billy who came to know you through the 1990s. Each of them regards you as a good friend and a caring person.
Furthermore, a report dated 11 August 2004, prepared by Dr Danny Sullivan, a psychiatrist, who interviewed you at Port Phillip Prison has been tendered before me. Consistent with your defence conducted before the jury you maintained to him that you were innocent of the offence of which you have now been convicted. He was unable, upon examination, to ascertain any sexually deviant behaviour although the histories he obtained in relation to past offending revealed that:
“It was consistently described that he had difficulties relating to women, longed for a mature relationship and had had some fantasies about rape.”
Notable and as distinct from the history given to others you told Dr Sullivan that you had never consumed alcohol consistently at “problem levels” although you did concede having spent too much money on alcohol at times in your life.
Dr Sullivan concluded that you are of low intellect. However, having listened to the tapes of your discussions with police and having seen you give evidence upon the voir dire, I do not conclude that your intellectual capacity is such that it should be taken into account in any significant manner in mitigation of sentence. Although you have not been the subject of significant psychiatric input over the years, Dr Sullivan noted that in the past you have been twice convicted of “serious sexually violent offences which seem to have been linked to both poor social skills and aberrant fantasies”.
Your counsel submits that by reason of the above matters and in particular your good behaviour since being released in 1992 your life after release has been a “life of progress” and that your rehabilitation has not only commenced but has, likewise, made considerable progress. Thus, he submits, any sentence to be imposed upon you does not call for the full measure of specific deterrence that might otherwise be required. The prosecution, on the other hand, contends that the appropriate head sentence to be imposed in this case is a sentence of life imprisonment but with a non parole period fixed. In particular, it is the submission of the prosecution that you should be sentenced as a serious violent offender. I am satisfied that you should be so regarded.
I am now sentencing you for the crime of murder. You were convicted in 1984 of the offence of wounding with intent to do grievous bodily harm contrary to s.17 of the then applicable Crimes Act. That offence involved the intentional stabbing of a young woman in the leg before you raped her.[1] I am satisfied beyond reasonable doubt that that conviction is a conviction for a relevant offence as required by s.6C of the Sentencing Act (1991).
[1]See p 3 of the unreported judgment of the Court of Criminal Appeal – DPP v Clarke (12 March 1985).
Pursuant to s.6D of the Sentencing Act (1991), if I consider that in respect of the matter now before me a sentence of imprisonment is justified I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. Clearly, on the charge of murder of Bonnie Clarke for which you have now been convicted there is no alternative but to impose a sentence of imprisonment.
In order to achieve the purpose of the protection of the community from you I have a discretion under s.6D(b) of the Sentencing Act to impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. In my view, the gravity of the offence upon which you are now sentenced is such that to apply s.6D(b) of the Sentencing Act would serve no useful purpose and would result in a crushing sentence. Nevertheless, the application of s.6D(a) of the Sentencing Act requires me to regard the protection of the community as the principal purpose for which the sentence is to be imposed.
In addition, there is the fact that you have now been convicted of serious offences involving aberrant sexual behaviour in relation to three separate events, resulting in loss of life on two occasions. On each occasion a knife was used by you either before or after the principal offence. Although you have no relevant prior convictions, as such, it is noted that the horror of the death of Teresa Crowe did not deter you from the murder of Bonnie Clarke. Likewise, the horrendous death of Bonnie Clarke did not cause you such remorse or reflection as to prevent your later brutal attack upon another young woman. I make it clear that you are not to be punished for those other offences. You have been sentenced for those offences and you have served your punishment and/or imprisonment in relation to them. Their only relevance is in relation to the protection of the community from you and to the question of your rehabilitation and the question of your remorse.
On the other hand, the submission by your counsel that upon leaving prison in 1992 you took steps to lead a blameless life has considerable weight. You obtained employment, you commenced a relationship and you appear not to have consumed alcohol to excess since your release.
Although your enthusiasm for the fictional criminality being offered to you by undercover police does not demonstrate high moral fibre on your part, it is of significance that there is no suggestion of violent or sexual misconduct by you in the decade subsequent to your release or during the period of intensive police investigation in 2001/2002. Furthermore, although the subsequent convictions for manslaughter and rape demonstrate that the murder of Bonnie Clarke cannot be described as an uncharacteristic aberration on your part, it is the fact that these matters all took place between June 1980 and August 1983 when you were aged between 25 and 28 years of age.
In addition to the issue of the protection of the community from you the matter of general deterrence looms large. Those who commit outrageous crimes against children must know that no matter how long it takes for them to be apprehended and brought to justice, they will suffer severe consequences. Yours is not a case of some youthful indiscretion discovered years later after a blameless life and which requires a merciful disposition. Yours is a case where your evil and monstrous conduct was kept secret by you for many years. Those who are disposed to commit such terrible crimes must be under no illusion other than that even if their criminality is brought to light many years later punishment can be expected to be commensurate with the gravity and nature of the crime.
The issue of specific deterrence is a question not without difficulty in your case. The fact that since release from prison you have not committed further offences and appear to have taken steps towards your reformation is, as I have said, of considerable weight and indeed is the most compelling argument in your favour. However, in my view, you remain a serious danger to the community. This view is reinforced by your lack of remorse and by the fact that you have now been proved to have committed three separate attacks upon three different females each of which involved aberrant sexual behaviour and the use of a knife.
There is evidence before me that in the past you have suffered fantasies about rape but there is no suggestion that you have been offered anything but perfunctory psychological treatment for your sexual fantasies. Whilst in the past you have consistently attributed such criminal conduct as you admit to your consumption of alcohol it is apparent that you are yet to accept that your conduct is deviate in the extreme. It is notable that Dr Hutchinson, who examined you psychiatrically in 1990, expressed concern that you blamed alcohol for all your troubles and stated that in his opinion you would be dangerous to women if you started to drink again.
Apart from the fact that you have not committed further offences since your release there is no reason in my view to assume that that opinion does not still hold true. I have given careful consideration to the argument advanced on your behalf that you have rehabilitated yourself. The support for that argument rests upon the period after your release from prison in 1992 during which period you have committed no further crimes and upon the statement of Dr Sullivan that he had no evidence before him to suggest ongoing deviant sexual activity or interests at the time of his examination of you.
However, your case is not to be compared with a case of a young person who gives up the use of drugs or disengages from dishonesty and can be seen patently to have reformed. In your case, your consistent explanation for your criminal conduct is the consumption of alcohol. I do not accept that excessive consumption of alcohol can be used as the explanation for or as an excuse for the seriously violent sexually aberrant conduct in which you have engaged. In my view, the issue of specific deterrence remains a significant matter of relevance in the sentencing process.
Obviously, your current age, nearly 50 years, is a significant matter. The fact that you did not admit to your criminality for nearly 20 years means that you are necessarily of an age whereby an appropriately proportioned sentence will deprive you of a significant part of your remaining life. However, any substantial reduction of your sentence by reason of your age would, in my view, be incommensurate with the shocking nature of the murder and in particular, would mean that the issues of general deterrence and retribution would receive insufficient weight. The nature and gravity of your crime call for just punishment and severe condemnation. The murder of a child in the circumstances established before the jury can only be described as a grave crime indeed.
In all the circumstances, I conclude that the only appropriate sentence is a sentence of life imprisonment. However, taking into account the issues of the possibility of your rehabilitation and the period between 1992 and your subsequent arrest together with your age and your state of health, I consider that it is appropriate to fix a period of imprisonment which will give you the possibility of being eligible for parole.
I direct that you are not to be eligible for parole until you have served a period of 25 years' imprisonment. Pursuant to s.18 of the Sentencing Act (1991) I declare that you have served 940 days pre sentence detention and I direct that that be noted in the records of the court.
I have been requested by the prosecution to make an order under the Sex Offenders Registration Act (2004). Although I am satisfied that you continue to pose a risk to the safety of members of the community taking into account the length of the sentence that has been imposed upon you and the fact that if in due course you are released you will be under the strict supervision of the Adult Parole Board for a considerable period of time thereafter no good purpose would be served by the making of such an order at this time. Pursuant to s.6F of the Sentencing Act (1991), I direct the fact that you have been sentenced as a serious violent offender be entered in the court records.
Remove the prisoner.
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