Regina v Ben Richard Clark

[2007] NSWSC 954

CITATION:	Regina v Ben Richard Clark [2007] NSWSC 954
HEARING DATE(S):	3/08/07
JUDGMENT DATE :	24 August 2007
JUDGMENT OF:	Patten AJ at 1
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
PARTIES:	Regina Ben Richard Clark
FILE NUMBER(S):	SC 2651 of 2006
COUNSEL:	Mr M Hobart - Crown Mr J Stratton SC - Offender Mr T Heenan - Offender
SOLICITORS:	Solicitor for DPP Heenan & Company

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

PATTEN AJ

FRIDAY 24 AUGUST 2007

2006/2651 - Regina v Ben Richard CLARK

SENTENCE

1 HIS HONOUR: The offender Ben Richard Clark who was born on 26 March 1984 and is, therefore, now 23 years of age pleaded guilty on arraignment to the murder of his grandfather, Ernest Richard Clark known as Dick Clark (to whom I will hereafter refer either as his grandfather or as the victim) at Bexley on the 29th of April 2005. I heard sentencing submissions on 3 August this year and he stands for sentence today.

2 It is appropriate to record that between the offender's plea on arraignment and the sentencing hearing he gave evidence at the trial which commenced on 21 May 2007 of his father, Michael Clark, upon a charge of murdering the victim, and his stepmother, Jennifer Clark, upon a charge of hindering the police investigation into the murder of the victim.

3 At the close of the Crown case Jennifer Clark was acquitted by my direction of the charge she faced. In relation to the charge against Michael Clark the jury was ultimately unable to reach a verdict and I discharged it. He awaits retrial.

4 The bald facts of the murder may be shortly stated. On the night of 29 April 2005 the offender visited his grandfather then aged 74. They watched a game of football on television together and drank some beer. It seems that the victim some time between 10pm and 11pm accompanied the offender towards some concrete steps at the rear of his house at 29 Wolseley Road, Bexley, leading to a gate which opened onto the street. From a position on the steps, the offender drew a loaded gun from his clothing and fired it at his grandfather. I infer from the evidence that the bullet inflicted a glancing wound in the victim's neck. The offender then moved closer to his grandfather and standing over him fired a second shot into his head.

5 It is to be inferred that while the offender made his escape through the back gate to his motorcycle, apparently parked about 500 metres away, the victim managed to stagger a few metres before collapsing in his backyard. He was unconscious and lying in a pool of blood when found there by his partner Ms Jessica Chung, about 12.30am. She did everything possible to procure speedy medical assistance but sadly the victim died from the gunshot wound to his head in hospital the following day.

6 The Crown case against the offender and his father was that the victim was killed in the course of a joint criminal purpose by them motivated, at least, so far as his father was concerned, by the fact that his father, who was in somewhat straightened financial circumstances, stood to benefit under the victim's will to the extent of several hundred thousand dollars. The motive of the offender himself was less apparent in this scenario as he was not a direct beneficiary of his grandfather. There was, however, evidence in Michael Clark's trial which enabled the Crown to submit that the offender's motive was that his father had promised him some unidentified part of his grandfather's money.

7 In assessing the degree of criminality involved in the offender's crime, he and the Crown are at issue upon two significant issues, namely, whether the crime was premeditated and whether the motive was pure financial gain, as submitted by the Crown, or the less reprehensible motive claimed by the offender to which I will need to return.

8 As to the first of those issues, I am satisfied beyond reasonable doubt that the offender intended to kill the victim at some time during his visit on 29 April 2005. My reasons for reaching that conclusion include, first and foremost, the fact that he carried with him a loaded gun concealed in his clothing. Other significant factors are that he parked his motorcycle some 500 metres from his grandfather's house, even though its location was known to him and he had parked outside the premises two or three weeks earlier, the telephone or text messages passing between his father and himself shortly before 8.30pm on 29 April in respect of which, in my opinion, despite several opportunities he was quite unable to give a rational or innocent explanation, and several of the legally recorded conversations he had with his father in the weeks before his arrest, relied upon heavily by the Crown in the case against his father.

9 The question of motive is more difficult. The fact, if it be the case, that he was engaged in a joint enterprise with his father to kill the victim does not necessarily mean that his father's motive was his motive. His evidence upon the subject given at his father's trial was that several years previously his grandfather had subjected him to mental and physical abuse including a very serious sexual assault. It was, in effect, his lingering hatred of his grandfather, so he said, which prompted him to kill him, coupled with threats his grandfather had made to him.

10 At the sentencing hearing the offender's evidence on the subject to his counsel, Mr Stratton SC, is to be found in the following transcript extracts:

“Q. When you were 16 did you go to live with your mother?
A. Yes.

Q. Were there occasions when you did work experience with your grandfather, the deceased?
A. Yes.

Q. Did something happen when you were doing work experience with your grandfather?
A. Yes, it did.

Q. What happened?
A. I was assaulted by him physically, sexually and verbally.

Q. How did those assaults on you make you feel?
A. Well, I was seriously confused to start with and then I was just seriously upset and hurt.

Q. Did you kill your grandfather?
A. Yes, I did.

Q. Why did you kill him?
A. Because of the abuse that he put on me.

Q. Was anyone else a party to or involved with your killing your grandfather?
A. No.

Q. You gave evidence at your father's trial?
A. Yes, I did.

Q. You gave evidence on oath as you have here, is that right?
A. Yes, yes.

Q. Did you tell the truth at your father's trial?
A. Yes.”

11 At the trial of Michael Clark the relevant portions of the offender's evidence were:

“Q. Now if you could tell the Court why you shot your grandfather?
A. It was because of the verbal, physical and sexual abuse that he put on me several years beforehand.

Q. Whereabouts?
A. At his shop in Granville.

Q. And when you went to his shop at Granville what was the first time you went there to work?
A. It was for work experience for school, was the first time I was there.

Q. Was that for a week?
A. Yes, I believe it was about a week.

Q. Did anything happen then?
A. No, it didn't.

Q. You went back to work for your grandfather, did you not?
A. Yes, I did.

Q. Was that for a few weeks?
A. Yes, two or three weeks.

Q. When was that exactly?
A. I don't recall exactly. It was when I was living with my mother in Merrylands between 2000 and 2001.

Q. And what happened during that period?
A. When I started working there it wasn't too bad to start off with but when he found out that I had sent my mother bankrupt he basically hammered me, punched and hit me all the time, constantly calling me useless and lazy, that I didn't deserve to live and eventually it - it escalated to sexual abuse from there.

Q. And he abused you verbally and physically, what hit, you or punched you did he?
A. Yes.

Q. How often would that happen?
A. Several times a day while I was working there.

Q. And he was complaining about something in relation to your mother, was he?
A. Yes.

Q. What was that?
A. It was when I had sent her bankrupt because of mobile phone bills.

Q. What do you mean by that?
A. Well, she signed up for a mobile phone contract as a guarantee for me, and I ran the bill far too high and she ended up having to go bankrupt over it.

Q. Was she the guarantor for the contract?
A. Yes.

Q. How old were you when that contract was entered into?
A. I think I was 16 at the time.

Q. Now you have indicated the verbal and the physical abuse. Can you relate the sexual abuse?
A. Yes, well, it started out as he held me down a few times, pulled down my pants and hit me on the genitals and then once, which was right before I stopped working there, he tied me to some shelves in the back room of his shop and raped me from behind.

Q. And how old were you when that happened?
A. About the same age, 16.

Q. Did you work for him again?
A. No, I didn't.

Q. Did you tell anybody about that?
A. No, I didn't.

Q. Did you tell your father about that at any time?
A. No, I didn't.

Q. When did you first tell anybody about the sexual abuse?
A. That would have been my - the first Legal Aid representative I had when I was first arrested up in Maitland Court I think it was.

Q. They were the first people that you told, is that right?
A. Yes, and he advised me that I should tell people about it. I didn't want to.”

12 There was partial support for the offender's allegations against the victim provided by his natural mother Rhoda Clark and his sister Simmone Clark. Mrs Clark said that when he was 7 the offender stopped living with her and went to live with his father and his wife Jennifer at Faulconbridge. She became aware that the offender, when he was about 16 and in Year 10 at school, had arranged to carry out work experience for a week at the victim's refrigerator repair and sales business at an address in Merrylands or Granville. For convenience she agreed that during that week of work experience the offender could stay with her at her home in a different part of Merrylands.

13 In the course of this week the offender complained to her that his grandfather called him a lazy little bastard and swore at him. There was, however, no complaint of any physical abuse, nor did she see any signs of physical abuse.

14 After the work experience the offender returned to live with his father at Faulconbridge but within months had returned to live with his mother where he remained for about 12 months. During this time he again spent some time working for the victim, probably less than two weeks. The aim, according to Mrs Clark, was that he would work off some money the victim lent him to buy stereo equipment.

15 Again the offender complained to his mother about his grandfather's verbal abuse of him, mainly centred on his alleged laziness. On occasions he would be in tears when he arrived home from work. After this he exhibited some reluctance to visit his grandfather but the reasons given bore no relationship to any ill treatment.

16 His sister Simmone was born on 20 June 1988 and, therefore, is about 4 years younger than the offender. When she was 11 or 12 she said she remembered a time when he did work experience for a week with the victim and she remembered him complaining that his grandfather yelled at him and called him stupid but that he did not complain of physical abuse.

17 She also recalled a second occasion when the offender worked for a short period with the victim at a time when he was living with his mother with whom she also lived. This time she said that the offender claimed to her that his grandfather had hit him and shoved him and yelled at him. She said that the offender claimed that he had just done one small thing wrong and his grandfather just blew up at him. There was again no complaint of sexual abuse.

18 She said that she witnessed a relevant exchange between the offender and the victim when she was at the victim's premises. Her evidence was:

“Q. Did anything happen during that period of time when you went down there between Poppy Clark and Ben?
A. Yes.

Q. What was that?
A. I went out the back and Ben didn't clean out the fridge properly or something and Poppy Clark went off at him and shoved him a bit.

Q. Now in relation to him doing that, was that the occasion when they were lifting a fridge or something into the back of a truck?
A. Yes.

Q. Was Poppy Clark telling him how to move the fridge onto the truck, is that right?
A. Yes.

Q. And this is the fridge that Ben had cleaned before it was put onto the truck, is that right?
A. Yes.

Q. Apart from that occasion was it the case that Poppy Clark spoke to Ben in a normal voice when you observed him?
A. Yes".

19 She also gave evidence that on occasions the offender came home after working for his grandfather angry and upset. Once she remembered that he was in tears and told her that he hated his grandfather.

20 On the other hand, there was also evidence tending to contradict the evidence of the offender as to the abuse he suffered at the hands of the victim. Mr George Hooper worked for the victim from 1992 to 2001 and recalled the occasions when the offender worked for the victim for short periods. He described the layout of the victim's premises at Merrylands which consisted of several interconnected rooms. His evidence suggested that it would be unlikely that sexual assault of the kind alleged by the offender could have occurred whilst he was on the premises without him being aware of it. He said, in addition, that the offender seemed to have a good relationship with his grandfather. He did not witness any aggressive act by the victim towards the offender, nor did he witness any abuse.

21 Other evidence suggestive that, at least, the offender was not sexually abused by the victim is, in my opinion, constituted by the offender's own failure to mention it when I would have expected him to do so.

22 He was formally interviewed by police three times. On the first occasion, 18 May 2005, he made a statement in which he denied any contact with his grandfather on the night of 29 April. The statement ended with these paragraphs:

“I was completely shocked about what they had told me and I just sat by myself for the rest of the day. I didn't really want to believe that it had happened and I was basically like that for the whole of the next week. On the day of the funeral the realism of it hit me and I was blown away again and I realised that I was never going to see him again. Since then I've been quite withdrawn from my friends at work and I can't really concentrate on my work and I don't really speak to people that much".

23 Next he participated in a record of interview on 12 July 2005 in which he again denied any contact with his grandfather on the night of the murder and lied about his movements during that night. Towards the end of the interview there were these questions and answers:

“Q. So outside of that is there anything else you want to tell me about the matter?
A. Um, just basically I suppose what everyone is saying, um, it's sort of unbelievable that this sort of thing could happen to such a generous and nice man. It's - it's baffling as to why it would happen.

Q. You've got no idea?
A. No, I didn't know an extreme amount into his personal life or anything, but from what I knew of him, ah, he was the nicest bloke I'd ever known and, ah, I felt that he couldn't have an enemy in the world. Everyone was best friends with him so to speak.

Q. O.K.
A. And I've never heard a bad word against him".

24 The third occasion was soon after the offender's arrest on 14 July 2005 for the murder of the victim. He participated in a record of interview at Maitland Police Station during the course of which he admitted going to the victim's house on 29 April 2005 and shooting him. There were these questions and answers:

“Q. OK. Well, I can take you back to that part of the conversation now. Do you agree that you told me in the car that the reason why you shot your grandfather was the way he treated you when you were younger?
A. Yes.

Q. In particular when you were living with your natural mother at Merrylands?
A. Yes.

Q. And also when you were working with him?
A. Yes.

Q. Would you agree you told me that he used to hit you?
A. Yes.

Q. And that he also used to, oh, verbally abuse you?
A. Yes.

Q. Would you agree with me that that was, that was basically the context of the conversation we had in the car?
A. Yes.

Q. OK. Are you now prepared to give me further detail in relation to that?
A. I'll need a few moments to, to sort of go back in my memory and, oh, you know, pick out certain things so that I can explain them to you. As I have already said to you, he used to beat me quite severely when I wars working with him, and he, he used to refer to me as a homosexual but in a much more vulgar manner. And he used to call me useless, stupid, that I didn't deserve to be born.

Q. And when did this take place?
A. When I was living with my mother, I was working with him for a short period of time, a number of weeks, and this happened during that time, and other times I'd been to his place.

Q. And can you, can you give me a, an idea of how long ago this was?
A. Oh, well, I moved down to my mother's in the year 2000, I can't remember exactly which month. I believe I moved back to my father's in either late 2002 or early to mid 2003. I can't rightly remember and these events happened in that period of time".

25 A few hours earlier he had left a letter at his home addressed to his father and stepmother which commenced:

"If you are reading this it means my conscience has gotten the better of me, I'm so very sorry, it was me who killed Poppy Clark so I'm so sorry, dad I know you loved Poppy Clark but I had my reasons, when I was living with mum and working with him. He used to bash me and call me a lazy useless cunt, he called me a dirty faggot and that I shouldn't be working with him but I should be selling my dirty arse at Kings Cross. He taunted me and called me a dumb fuck for not getting my School Certificate. He bashed the shit out of me when mum went bankrupt and called me a low life and I should never have been born and when I went down to his place to show him my bike he went right off at me, he said a useless poofter like me doesn't belong on a motorbike and that I didn't deserve to have it. That was the last straw for me. I left there in tears, the reason I had to do what I did was because every time he beat me he would say "if you ever tell anyone about this I will kill you" and I tried for many years to suppress my anger but it was becoming harder to hold in and my last meeting with him cracked me. I would have told someone what he had been doing but I was afraid that if he found out he would kill me".

26 The offender contended that he told a duty solicitor at Maitland Court of sexual abuse at the hands of his grandfather but that solicitor was not identified. So far as other evidence relates, he first mentioned sexual abuse in a letter to his solicitor dated 14 September 2006, which contained this passage:

“Ever since I was very young Dick (Poppy Clark) treated me like garbage. When I was 15 or 16 years I was living with my mother Rhoda in Merrylands. While I was living there I did about three to four weeks for Dick and in that time he took it on himself to treat me like the lowest form of life on earth. It started off as verbal abuse but after he found out that I'd sent my mother bankrupt he started beating me and saying that I was a worthless piece of shit and didn't deserve to live and if I had any decency I'd sell myself at Kings Cross to pay my mother's debts. On at least half a dozen occasions he actually sexually assaulted me by pulling my pants down and hitting and pulling my private parts while he held me down and on one occasion he tied me to the shelves in his paint room with straps and raped me from behind and afterwards he said to me you like taking it from behind, don't you, filthy faggot.”

27 Having heard and seen the offender give evidence on several occasions I regard him as a man of no or very little credibility. I do not believe his claims that his grandfather either sexually assaulted him or was physically violent except to the extent of mild pushes or shoves. I accept, however, that there were occasions when his grand father probably verbally abused him and this may have upset him and given rise to feelings of anger.

28 Although it seems improbable I cannot exclude the possibility as a reasonable hypothesis that feelings of ill will towards his grandfather persisted until 29 April 2005 and motivated the murder. It follows that I am not satisfied beyond reasonable doubt that the murder was entirely motivated by the prospect of financial gain.

29 Before coming to the matters which I am required to consider under s 21A of the Crimes (Sentencing Procedure) Act which I will refer to hereafter simply as the Act, I should make reference to the report of Dr Bruce Westmore, forensic psychiatrist, who assessed the offender on 4 April 2007 and who said after reviewing his background and the history given to him in some detail:

“Mr Clark makes various allegations regarding the deceased the details of which I have included in this report and which are noted in other documents as well. He provided a very different history to Mr Taylor and me as to why he was in his grandfather's house on the night of the incident but both explanations have some relationship to Mr Clark's allegations that the deceased had in the past abused him.

There is nothing in his history to suggest he suffers from a mental illness and nothing in his history would support the argument that the defence of substantial impairment might apply in this case. I note Mr Taylor's comments about the issue of provocation. I am not able to comment in any detailed way about his personality structure and profile, although that may have some implications regarding his longer term forensic prognosis. If and when the facts as to why he shot his grandfather are ultimately established then some possible comments about the issues of future dangerousness might be able to be made."

30 I do not identify for the purposes of s 21A(2) of the Act any aggravating factor which is not an element of the offence. As to mitigating factors within s 21A(3) I take into account the very significant fact that the offender has no criminal antecedents and was a person of good character.

31 There was no evidence warranting a finding that the victim provoked the offender. He faces a lengthy period of imprisonment and I am unable to say whether he is unlikely to re-offend. Because of his age and apparent motivation there are prospects for his rehabilitation. According to his evidence, which was not disputed on this aspect, since entering into custody on 14 July 2005 he has been a model prisoner and intends, while serving his sentence, to obtain an electrician's licence. Before his arrest he was working at Winnebago as an electrician's assistant. He also said that he intends to study other courses to give himself as many options as possible upon his release and, of course, he should be encouraged in that regard.

32 In his evidence at the sentencing hearing the offender expressed remorse for his actions. I am not persuaded that this somewhat belated statement indicates any genuine contrition or even an insight into the enormity of what he has done. Perhaps this will come to him in time.

33 He is entitled to a discount from the sentence otherwise appropriate for his plea of guilty, which followed his admissions of guilt to the police at his arrest. In my view, the plea should be regarded as having been made at an early opportunity but I am of opinion that it had utilitarian value only in light of my earlier finding of a lack of genuine remorse. I quantify the appropriate discount at between fifteen and twenty percent.

34 Mr Stratton submitted that the offender is also entitled to a discounted sentence because of his assistance to the Crown. He did, it is true, give evidence in the Crown case which was of assistance in that it tended to prove the murder of the victim by the offender. However, his evidence also assisted his father's case in that he denied that his father had any part in the murder by claiming that he acted entirely alone.

35 In my opinion the evidence of the offender at his father's trial was not truthful, a matter about which I am satisfied beyond reasonable doubt. On the whole, it was unhelpful to the Crown case against Michael Clark and I do not accept that it was given in order to facilitate the course of justice. I do not think that any lesser a penalty on this ground is warranted.

36 I acknowledge that the Court received at the sentencing hearing Victims Impact Statements from the victim’s partner of some 15 years, Ms Jessica Chung and from the victim's sister Ms Maree Gilbert. Their moving statements, which were read, demonstrated the loss and suffering caused by the victim's death to those close to him. At the time I expressed the Court's sympathy and indicated that despite this it was not appropriate to consider what was said in the statements in determining the sentence to be passed.

37 This was an offence involving, in my opinion, a very high degree of criminality. Although perhaps not in the worst class, a circumstance conceded by the Crown, it was in my view towards the upper range. The offender shot and killed his grandfather in the style of an execution, without rational explanation in a most cold blooded, callous and merciless manner. If it were not for his youth and plea of guilty, in my opinion, a sentence of imprisonment for life would need to be contemplated.

38 The sentence of the Court in the circumstances of this case should particularly express the community's outrage and operate as a general deterrent to those who might be of a similar mind, in addition to satisfying the other objectives of the criminal law in regard to sentencing.

39 I find there are special circumstances deriving from the offender's youth and the fact that this is his first time in custody. These special circumstances call for a parole period longer than the statutory norm. Taking into account the degree of criminality involved in the crime but also the mitigating factors I have identified, especially the offender's plea of guilty, his previous good character and his youth I make these orders:

40 The offender Ben Richard Clark is convicted of the murder of Edward Richard Clark as charged. I sentence him to imprisonment for a term which will comprise a non-parole period of fourteen years and a total term of twenty years. The head sentence will date from 14 July 2005 and expire on 13 July 2025. The offender will be eligible to be considered for release on parole on 13 July 2019.

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