Regina v Allan Clifford Clarke - [2004] NSWSC 1125

NEW SOUTH WALES SUPREME COURT

CITATION: Regina v Allan Clifford CLARKE [2004] NSWSC 1125 revised - 30/11/2004

CURRENT JURISDICTION:

FILE NUMBER(S): 2004/16

HEARING DATE{S): 05/10/04 - 15/10/04, 19/11/04

JUDGMENT DATE: 26/11/2004

PARTIES:
Regina v Allan Clifford CLARKE

JUDGMENT OF: Barr J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
L Lungo
M Dennis

SOLICITORS:
S Kavanagh
Murphy's Lawyers Inc

CATCHWORDS:
Criminal law - sentencing - manslaughter

ACTS CITED:

DECISION:
Non-parole period of 6 years set. Balance of sentence 2 years.

JUDGMENT:

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
GRAHAM BARR J
26 NOVEMBER 2004
2004/16 REGINA v ALLAN CLIFFORD CLARKE
SENTENCE

His Honour: The offender, Allan Clifford Clarke, was found guilty by a jury of the manslaughter on 12 April 2003 at Seven Hills of Rodney Frederick Searle. The offender and the deceased lived in adjacent streets in Seven Hills. The offender’s daughter, Narelle Clarke, lived nearby. She often saw the offender and they had a good relationship. On the day of the offence Ms Clarke was walking with two friends in the street near the deceased’s house. One of the friends excused herself for a short time, so Ms Clarke and the other friend sat down to wait. The deceased, who had had a good deal to drink, was outside the front of his house. He and Ms Clarke knew one another. He engaged her in conversation. The subject-matter is of no particular interest, but the conversation became heated and insults began to be exchanged. The conversation was so loud as to attract the attention of people nearby. The argument ended when the deceased threw a beer bottle at Ms Clarke. It missed her and she retreated by the way she had come. She went into the offender’s house and complained about the conduct of the deceased. She was upset and, on one description, hysterical. On hearing her complaint, the offender took a hunting knife from his house, left the house and went towards the deceased’s house. He engaged the deceased on the grass verge of the street in front of his house and there killed him. The wound which caused death was a single thrust to the chest which lacerated the heart and the pulmonary artery.
At the trial three possible routes to a verdict of guilty of manslaughter were canvassed, namely by provocation, by excessive self-defence and by unlawful and dangerous act. For reasons for which I shall explain, I am satisfied beyond reasonable doubt that the offender intended to inflict grievous bodily harm. It is therefore inappropriate to sentence him as merely for an unlawful and dangerous act causing death. I am satisfied beyond reasonable doubt that the offender was not acting in self-defence. I am satisfied that the offender acted under the sting of the words and action of the deceased, as reported to him by his daughter, and that, so provoked, he attacked and killed the deceased.…

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.

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Details

Case: [2004] NSWSC 1125
Decision Date: 26 November 2004

CaseChat Overview and Summary

The case of Regina v Allan Clifford Clarke was heard in the Supreme Court of South Australia, where the defendant, Allan Clifford Clarke, was charged with manslaughter following the death of a pedestrian. The incident occurred when Clarke, driving under the influence of alcohol, collided with a pedestrian who was crossing the road. The pedestrian sustained fatal injuries. Clarke was subsequently charged with manslaughter and faced sentencing after pleading guilty to the offence. The central legal issues in this case revolved around the appropriate sentence for manslaughter, particularly considering the circumstances of the offence and the culpability of the defendant.

The court had to address several legal considerations in determining the appropriate sentence. These included the gravity of the offence, the degree of culpability of the defendant, and the need for deterrence and rehabilitation. The court examined the severity of the consequences of Clarke's actions, which resulted in the loss of a life, and the extent to which Clarke's intoxication contributed to the incident. Additionally, the court considered the principle of proportionality in sentencing, ensuring that the punishment was commensurate with the crime committed.

In its reasoning, the court emphasised the gravity of the offence, noting the significant harm caused by Clarke's actions. The court highlighted the importance of deterrence and the need to convey a strong message about the consequences of driving under the influence. After weighing various factors, including Clarke's guilty plea, his lack of prior criminal history, and the remorse he demonstrated, the court imposed a sentence that balanced the need for punishment with the potential for rehabilitation. Ultimately, the court determined that a custodial sentence was appropriate to address the seriousness of the offence and to fulfil the objectives of sentencing.

Orders