Regina v Clare

[2006] NSWSC 812

CITATION:	Regina v Clare [2006] NSWSC 812
HEARING DATE(S):	26/06/06 - 11/07/06, 28/07/06
JUDGMENT DATE :	11 August 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	PRISONER SENTENCED
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - MANSLAUGHTER - AGGRAVATED SEXUAL ASSAULT OF CHILD - DEATH CAUSED BY ASSAULT - PAEDOPHILE - WORST CASE AND WORST OFFENDER CATEGORY
PARTIES:	Regina v William Thomas Clare
FILE NUMBER(S):	SC 2005/1747
COUNSEL:	C. Maxwell QC (Crown) P. Zahra SC (Prisoner)
SOLICITORS:	Director Public Prosecutions (Crown) Mark Klees & Associates (Prisoner)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

MICHAEL GROVE J

11 August 2006

2005/1747 REGINA v WILLIAM THOMAS CLARE

SENTENCE

1 HIS HONOUR: William Thomas Clare, you appear for sentence for manslaughter, having been found guilty by the jury of that offence, and for the crime of aggravated sexual assault upon a child under the age of ten years, to which crime, when indicted, you pleaded guilty.

2 The victim in both instances was a little boy whom I will refer to as J. He was, at the time, aged three years and ten months. The available maximum penalty for both of these crimes is the same, namely, imprisonment for twenty five years.

3 As my findings will indicate, there is a connection between these two offences, the facts in respect of which are to be derived from the evidence which was heard at trial. It is a matter of significance that you are presently subject to sentences for crimes of a sexual nature committed by you on J’s sister, whom I will refer to as B. These sentences were imposed in the District Court on 21 October 2004 and the earliest date upon which you may be eligible for parole in respect of those sentences is 17 October 2015.

4 According to the evidence of the mother of B and J, she met you towards the end of 2002 when you struck up a conversation with her as she was passing near Croydon Railway Station. This acquaintance continued and led to a remark made in about July 2003 that she looked like she needed some help with the children and you would be prepared to help her by minding them. At the time you were residing in a one bedroom flat with the tenant, an older man, Keith Coles, who was described on occasions as a type of father figure to you. Some of the tenants in the complex where you resided thought that you were father and son.

5 The mother accepted your offer. It came to pass that the children slept overnight in the flat on a mattress on the floor or on a lounge. As can be observed in police photography, the state of the premises, including the room in which the children had to sleep, was untidy with scattered rubbish and a conglomeration of electric power boards and plugs connected to video and sound equipment and the like. I have no reason to believe that the state of the premises was any better before the police were there to photograph it.

6 A routine was that the children would visit their mother in the late afternoon after she returned from work but thereafter they returned to the squalid conditions of the flat to remain overnight.

7 I am satisfied that your offer to mind the children did not spring from any benevolent intention to assist the mother with their care, but because you seized what you recognized was an opportunity to satisfy a lust by sexually abusing these innocent children.

8 For present purposes I am dealing only with your depredations on J, as you have already been dealt with for your separate crimes committed upon B, although it will be necessary for pay attention to the latter in terms of your ultimate total sentence.

9 On 13 September 2003 the children returned to your flat to stay in accordance with the routine that I have mentioned. Their mother supplied a box of party pies to constitute a meal and J consumed some of these. He may also have had other food.

10 At nine minutes past midnight on 14 September you telephoned the 000 emergency service. You reported that a three year old child was vomiting, had choked, was unconscious and not breathing. You said that he was not responding to CPR nor to what you described as a little bit of electric shock.

11 Ambulance and paramedic assistance arrived seven minutes after your call. On your later assertion to police, J had been obviously ill for in the order of half an hour before you called the ambulance. When they arrived his body was cool to touch but he was rushed to Royal Prince Alfred Hospital where, in accordance with applicable protocols, resuscitation measures were implemented, but these were terminated and J was pronounced deceased. I am satisfied that he was already deceased when at the flat in Croydon.

12 At the hospital, nurses noticed bloodstains on J’s underwear and further observation located what appeared to be fresh blood in the region of his rectum. Post mortem examination detected recent tears to the anus and bruising of the lining of the rectum. I am satisfied beyond reasonable doubt that these signs and injuries were caused by the sexual assault which you committed on the child which constitutes the offence to which you pleaded guilty. I am satisfied that that assault consisted of a penetration of the child’s anus by your penis.

13 That condensed description does not reveal the gross criminality of your crime. Words are really an insufficient medium to convey an appropriate condemnation of your debauched behaviour. On an objective level, your depravity, manifest in the commission of that offence must attract severe punishment.

14 You stood trial on the count in the indictment which charged murder, of which the jury found you not guilty but guilty of manslaughter. There were three possible bases upon which the jury might have found such a verdict but it is my present function to find facts, not inconsistent with the verdict of guilt of manslaughter, upon which you are to be punished for that offence.

15 It is to be understood that it is not my task not to enquire into, nor to speculate upon, what path the jury may have followed to reach their verdict but to find facts myself as I have just indicated. It is important to stress my role as a fact finder for this purpose and to note that I have had regard to the various expressions of expert opinion, especially with respect to the possible causes of J’s death.

16 As such fact finder, I am satisfied that your act caused the death and that the chain of causation was commenced by your penile penetration which was such a painful experience for the infant that he reacted by vomiting incompletely digested food from within his body. The vomitus thus produced was aspirated, that is to say, inhaled into his lungs and into his airways, such obstructions having the catastrophic result of death. Whether this is labelled as choking or respiratory failure, the cause and the result are the same.

17 I should record that it is not my finding that death followed immediately after the sexual assault, as so to find would constitute murder on the basis of felony/murder which would be contrary to the jury finding. I am unable to find precisely when the act of sexual assault occurred prior to setting in train the chain of events which led to death, but it suffices for the purposes of my fact finding to hold the connection which I have stated, rejecting any temporal connection which would elevate your responsibility above manslaughter.

18 If it was your intention at the time of your act to cause really serious physical injury to J, that would, when added to the causation which I have found, also amount to murder and, accordingly, in harmony with the jury’s verdict, I do not so find.

19 I am, however, satisfied to the necessary standard that your intention at the relevant time was to gratify a sexual urge by performing the act which I have described. It scarcely needs expression to say that in the circumstances your act was unlawful and, by objective test, it was dangerous in the sense that a reasonable person would recognize that J was thereby exposed to an appreciable risk of serious injury.

20 Of the three possible bases upon which you might have been found guilty of manslaughter, the elements of that crime which I find for the purpose of your sentence are, therefore, that it was your act of sexual assault which caused J’s death and that the act was both unlawful and dangerous to the requisite degree.

21 As it was a matter necessarily examined at some length during the trial, I should record some things concerning marks on J’s body, which were undoubtedly caused by your application of live exposed electric wires. I note that in final submissions the Crown Prosecutor did not seek that I find that that action by you was causative of J’s death. Whilst the evidence did not exclude the possibility that the wires were applied whilst J was alive, although he was hopefully at least unconscious, the most relevant of expert opinion supported the probability that the wires were applied after death and, therefore, obviously could not be a cause of death. It should be further noted that, whilst what you did with the wires plumbed the depths of stupidity, it is apparent that you had no consciousness of guilt about it and you mentioned it to the 000 operator when you made the emergency call, to a police officer at the hospital and also when later interviewed by detectives in the morning. In contrast, you were not so forthcoming with information about the depraved sexual behaviour which you visited upon the child. The evidence does not demonstrate that the application of electric wires was a contributor to causing death and it is not a factor aggravating your culpability.

22 I should refer to some subjective matters. You were born on 27 October 1971. You know nothing of your biological father and you became a ward of the State at about the age of four or five, after which you never saw your stepfather or your mother again. Your mother died some years ago. You believe that you have brothers but you have no contact with them. In early life an adoption was an unhappy experience and you left the home at age fifteen. Thereafter you lived in refuges and casual shared accommodation, interspersed with periods of imprisonment, until you eventually resided in the flat with Keith Coles. I bear in mind the detail of the histories which you have given to the psychiatrists and to the psychologist whose reports were tendered.

23 Your employment record shows spasmodic work of an unskilled nature and you have been in receipt of disability support pension which you told Dr Dong Binh Tran was for stress and depression. There was an agreement with the children’s mother that you would be paid $30 a day for minding them. You told Dr Dong Binh Tran that you were “always fantasizing about having sex with young girls” and that “three to ten” was your preferred age group.

24 You responded to a direct question from Dr Westmore that you considered yourself to be a paedophile. I am satisfied that that is the case.

25 After your conviction, Dr Westmore was called and asked questions about the risks of your re-offending. He confirmed the diagnosis of paedophilia and a matter of grave concern was his comment that when you express yourself sexually it is likely to be in a way towards children because that is what your sexual orientation is. The goal of any treatment that can be contemplated would simply be to get you to understand how damaged children are by sexual interference and for you to restrain yourself.

26 If confirmation of your proclivity for repeated sexual offending be needed, it can be had by paying attention to your criminal record. In November 1990 you were convicted at Blacktown Local Court on two charges of inciting a person under the age of eighteen to acts of indecency and three charges of committing acts of gross indecency. On the same day you were convicted of sexual assault. In July 1993 you were sentenced at Penrith District Court for having sexual intercourse with an intellectually impaired person. In October 1997 you were sentenced at Sydney District Court for offences of indecent assault on a child under ten years of age and committing an act of indecency on a person under sixteen years of age. I have already mentioned the multiple offences committed upon the victim B, then aged six, who was J’s sister. Your record also has many other convictions but they are not sexual crimes.

27 Having regard to these matters and the evidence of Dr Westmore, I am satisfied that there is a significant risk of further offence of a sexual nature were you to be at large. The future protection of the community, in particular young children, must be an important factor in assessing your sentence. That is not to say that there can be any element of preventative detention but this is to be distinguished from taking into account a need for community protection in determining what is an appropriate sentence.

28 Except to observe the lack of opportunity revealed in your childhood, youth and life to date, there is little that I can find which could be weighed in your favour. The psychologist, Ms Langeluddecke summarized your test results as demonstrating a generally low level of cognitive ability, but I am quite satisfied that you were perfectly well aware of the criminality involved in the penile penetration of the anus of a three year old infant.

29 It is said that the nature of your offences are such that you will serve your sentence in protection which may be more onerous than serving a sentence in the general prison population. I am, of course, aware that, regrettably, there are other persons sentenced for offences against children, and of the vulnerability of such offenders to attack by other prisoners. This much is notorious. However the circumstance of separation for protection does not inevitably require a reduction in sentence.

30 It was conceded by senior counsel appearing on your behalf that, if I found that death resulted from the sexual assault, and I have so found, then the case would fall within an objectively serious category of manslaughter.

31 In my view, causing death by a forced act of anal penetration upon a small child, whilst this act was not accompanied by an intention to cause serious injury but was accompanied by an intention to gratify a depraved sexual urge, falls within the category of a worst case of manslaughter. You are a self acknowledged paedophile and you are, having regard to your earlier convictions, which must have communicated to you the need for sexual restraint, in the class of the worst offenders. I reach that conclusion after giving weight to any subjective matters which have been advanced in your favour.

32 The appropriate sentence for your crime of manslaughter is that prescribed by Parliament as the maximum. There are, however, other matters which must be considered including the penalty for the offence for aggravated sexual assault itself, whether a non parole period should be specified and whether there should be cumulation or concurrency with the sentences which you have already received for the offences committed on B.

33 The sexual assault of J is, on the findings that I have made, an essential ingredient constituting the crime of manslaughter and the high level of criminality involved in its commission is a most prominent factor in my assessment that this crime of manslaughter falls into the worst case category. Whilst you must receive separate and appropriate penalty for the crime of aggravated sexual assault, you must not be doubly punished for the same criminal behaviour. I will avoid so doing by concurrency of sentences. There is also to be taken into account in respect of this offence the practical utility of your plea of guilty in avoiding the need for trial on that count in the indictment. I do not regard your plea of guilty however as a manifestation of any contrition or remorse but a recognition, no doubt after receiving advice, of the inevitability of conviction in the light of a powerful crown case.

34 I would assess a sentence of sixteen years imprisonment reduced to fourteen years to reflect the utilitarian value of your plea of guilty in respect of the offence of sexual assault. I do not set a non parole period because this sentence will be subsumed by the sentence which I will impose for the crime of manslaughter.

35 The earliest date of eligibility for parole in respect of the sentences you received for the offences in which B was the victim is, as I earlier mentioned, 17 October 2015. Counsel acknowledged as common ground that the depredations on B occurred on the day before your fatal assault on J. It is submitted on your behalf that the offences against B and J occurred within a relatively short time of each other. In a sense, that is true but they could only fit the description of a single manifestation of criminality because both children were placed in your care as a result of the one arrangement with their mother. Each child was a separate victim and what you did to B was not allied to what you did to J in any relevant sense. I have read the Judge’s remarks on sentence relating to B as victim and they can be referred to for observing the basis for that conclusion.

36 Before determining whether to cumulate the sentences in whole or in part, it is necessary to consider the overall totality of what will become your sentence. Detention will extend for a very long time but in my view it is entirely merited and is required in order to reflect the enormity of your crimes. I propose to cumulate the sentences for the offences in which J was the victim upon the sentences which you have already received for the offences in which B was the victim.

37 Finally, I have to consider whether to refrain from setting a non parole period in respect of the sentence which I intend to impose for manslaughter. Whilst a relevant act of Parliament empowers me to decline to set a non parole period, among other reasons, because of the nature of the offence and the antecedent character of the offender, it is plain that it prescribes an ordinary practice for a court, when sentencing, to first set a non parole period and, absent special circumstances, a balance term which should not exceed one third of that period. I say that that is ordinary practice because reasons are required to be expressed if a non parole period is not set whereas reasons are not required otherwise. Obviously if, as I have determined, a maximum sentence is to be imposed, the non parole period to be specified will equate to three quarters of that maximum when the formula in the legislation is applied.

38 I do not find that there are special circumstances but I do propose to set a non parole period in accordance with the statutory formula. I stress that this involves no representation that you will be in fact be released upon expiry of that term and whether you achieve actual release will be a matter for the parole authority. However, if it comes to be determined that you may be released into the community at some time after your date of eligibility, it would be expected that you would require stringent conditions and supervision to ensure the safety of the community and it would be obviously undesirable to set any term, on the expiry of which, you would simply be released into the community.

39 William Thomas Clare, for the offence of manslaughter upon which you stand convicted by jury verdict, you are sentenced to imprisonment consisting of a non parole period of eighteen years nine months commencing on 17 October 2015 and expiring on 16 July 2033, with a balance term of six years and three months commencing on 17 July 2033. The total sentence thereby imposed is imprisonment for twenty five years.

40 For the offence of aggravated sexual assault upon a child under the age of ten years, you are sentenced to imprisonment for fourteen years commencing on 17 October 2015 and expiring on 16 October 2029.

41 The earliest date of eligibility for parole is specified as 17 July 2033.