Regina v Kenneth Lloyd Clarke

[2002] NSWSC 993

CITATION:	Regina v Kenneth Lloyd Clarke [2002] NSWSC 993
FILE NUMBER(S):	SC L00/002
HEARING DATE(S):	18 October 2002
JUDGMENT DATE:	25 October 2002
PARTIES :	Regina Kenneth Lloyd Clarke
JUDGMENT OF:	Sully J at 1

COUNSEL :	C. Lampratti - Crown C. B. Craigie SC - Applicant
SOLICITORS:	S. E. O'Connor - Crown D. J. Humphreys - Applicant
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act 1999
DECISION:	Application for re-determination of sentence granted; In lieu, imprisonment for 20 years, commencing 17 June 1989, with a non-parole period of 15 years commencing 17 June 1989 and expiring on 16 June 2004

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

SULLY J

Friday 25 October 2002

L00/002 – REGINA v KENNETH LLOYD CLARKE

JUDGMENT

1 HIS HONOUR: Before the Court is an application by Mr. Kenneth Lloyd Clarke, (“the prisoner”), for the re-determination of a sentence, which he is at present serving, of imprisonment for life. The sentence was passed upon the prisoner by McInerney J sitting in the Supreme Court at Wagga Wagga on 28 August 1992.

2 Between 3 August 1992 and 7 August 1992 the prisoner stood trial before McInerney J and a jury upon a charge that he had murdered, on 17 June 1989 at Yoogali in this State, one Merrilyn Mae Armstrong. The jury found the prisoner guilty as charged. He was subsequently convicted, and was sentenced, as previously noted, to imprisonment for life. He appealed to the Court of Criminal Appeal against his conviction; and on 13 December 1994 that appeal was dismissed.

3 The life sentence which the prisoner is currently serving is an “existing life sentence” as defined in Schedule 1 to the Crimes (Sentencing Procedure) Act 1999, (“the Act”). The provisions of Schedule 1 govern, accordingly, the present application. Clauses 3 and 7 of Schedule 1 set out the criteria to which the Court must have regard in dealing with the present application. I shall return presently to a consideration of those criteria in their application to the present particular case; but before doing that, it is convenient to summarise the relevant factual background. I take it, as follows, from the judgment of Finlay J who delivered the principal judgment in the Court of Criminal Appeal:

“At the time of the alleged murder (the prisoner) was living with the victim, his fiancée, Merrilyn Armstrong, in a farmhouse about 5 kilometres out of Griffith. On that day he spent about seven and a half hours drinking at the Area Hotel at Griffith with various people from about 4.30 p.m. to mid-night or a little after. At about 8.00 pm the deceased had rung him at the hotel to ask when he might be coming home.
At approximately mid-night (the prisoner) and his acquaintances decided to go to a local night club. The appellant was not suitably attired. He told his companions he was going home to change.
At 1.34 a.m. the following day Mrs. Armstrong, the mother of the deceased, received a telephone call from (the prisoner) saying: ‘I tell you I’ve killed her. She’s dead. Ring the police’. The police arrived at about 2.00 a.m. Upon entering (the prisoner’s) home the police found (the prisoner) administering heart massage to the deceased. (The prisoner) upon noticing the police presence moved away from her. The police examined her and pronounced life extinct. (The prisoner) was then arrested. The deceased woman had been brutally battered to death. A blood-covered glass jar had been used as a weapon. (The prisoner) first told the police he had been at the Area Hotel since he had finished work the previous afternoon and had remained there until after mid-night: that he walked home to Yugali after leaving the hotel, and was well affected by intoxicating liquor. He said that on his arrival home the door was open and he found the deceased on the floor of the bedroom. (The prisoner) had blood on him. Considerably later that day he signed a Record of Interview, which commenced at 2.05 p.m. and concluded at 3.49 p.m. on 17 June. That Record of Interview included the following:
‘Q. 22 Do you agree that you told me that you then telephoned her mother and told her that Merrilyn was dead?
A. Look I’ll tell you now what I can remember, what I have told you this morning is not exactly what happened. I’ll tell you now what I can remember happened.
Q.23 Do you now wish to tell us what you say actually happened last night at the farmhouse?
A. Yes. I can’t remember walking I know I would have had the shits. I think I opened the door I was pretty pissed, I was blind, and I don’t know if I got the tea ready or she did, I have got a blank spot for about half an hour when I was at the house. I’ve got a sore lip (indicated slight laceration inside bottom left inside lip). She could have hit me and I must have hit her and she must have fell to the ground and I tried to save her.
Q.24 Do you remember that happened then?
A. I remember her body wasn’t moving. I panicked and tried to save her and ring her mother. Then when I finished ringing her mother I went back and tried to save her again, I was there for about 10 minutes then the police come.
Q.25 Do you recall what you hit her with?
A. Um – probably my hands I don’t think I would have kicked her.
Q.26 I show you a glass jar containing cotton wool balls with a glass lid. Can you tell me who owns this item?
A. We do.
Q.27 Do you agree that it is covered with blood and other material?
A. Yes. I know I had that in my hand.
Q.28 Did you have the jar and the lid in your hand at the same time?
A. I don’t know.
Q.29 Do you remember how many times you struck her with the glass jar?
A. I don’t know if I hit her with the glass jar or not.
Q.30 Do you recall if she was bleeding heavily?
A. There was a lot of blood there. She was bleeding from the nose, mouth.
Q.33 Did you say anything to her during the altercation?
A. Why, why, why or something like that. Me head was going round and round and I don’t know what I was saying.
…
Q.50 Can you give me any other reason why you would have had an argument with the woman upon your arriving home?
A. I can’t remember exactly but I was cranky because I had to walk home. Wayne Egan was going to take me home, he lives across the road, but he went without me. When I got home she reckoned I must have been rooting around, and playing up and I must have said something to her and that would have been how it started. And we just had a fight and it got out of hand. She hit me a couple of times and I hit her then I couldn’t stop.
Q.51 As a result of the woman Armstrong being struck a number of times about the head she has died. Is there anything you want to say about that?
A. I didn’t mean to kill her. My head is just confused at the moment. If you give me time in a day or so it might become clearer and I might be able to tell you about it.”

4 Set out seriatim in what follows are the relevant criteria prescribed by clauses 3 and 7 of Schedule 1 to the Act; together with my findings and remarks in respect of each such criterion.

All of the circumstances surrounding the offence for which the sentence was imposed: Clause 3(1)(a)

5 The material quoted previously from the judgment of Finlay J in the Court of Criminal Appeal largely covers this particular factor. There are, however, these further relevant facts and circumstances:

[1] The injuries suffered by the victim were horrific. She had extensive lacerations and haematomas on her scalp, both of her eyes were bruised and her tongue was lacerated. One of her fingers on her right hand was fractured in two places and another finger was dislocated. When her cranial cavity was opened at post-mortem examination, it was discovered that there was extensive haematoma under the whole of the cranial scalp. It was discovered, further, that the membrane which covers the bone underneath the scalp had been split over the temporal parietal area. The expert professional evidence at trial was that severe force would have been needed in order to inflict injuries such as these; and that the injuries were consistent with the victim’s having been struck by a heavy object such as a glass jar.

[2] The defendant’s case at trial was, essentially, a case of diminished responsibility. It follows from the verdict of the jury that the jury rejected this defence case.

[3] The prisoner did not give evidence at his trial, but he made, as was permitted by law at that time, an unsworn statement. The prisoner told the jury that he had loved the victim and that he did not believe that he had killed her. He said that he did not believe that he had said the contrary to the victim’s mother. He said that he could not remember how he got home from the hotel where he had been drinking; and that as soon as he saw the victim lying on the floor he tried to save her life. The prisoner said that before he spoke to the interviewing police, he was upset, tired and hung-over. He acknowledged that the record of interview could be read as conveying that he was telling the interviewing police that he had killed the victim; but such had not been the case. The prisoner said that he had been upset at the time of the interview and that he was making up in his mind what he thought must have happened. The verdict of the jury entails that the jury rejected these propositions as reasonable possibilities.

6 A murder committed in the circumstances which I have described must be regarded, on any reasonable reckoning, as a very serious crime of high objective culpability.

All offences, wherever and whenever committed, of which the offender has been convicted so far as this information is reasonably available to the Supreme Court: Clause 3(1)(b)

7 When the prisoner stood for sentence, his relevant antecedents were:

[1] On 27 October 1980 the prisoner was dealt with in the Children’s Court at Griffith in respect of offences of: malicious injury to office equipment; receiving; two counts of break enter and steal; and unlicensed driver. In each case he was released on probation to be of good behaviour for a period of 12 months.

[2] On 10 August 1983 the prisoner was dealt with in the Court of Petty Sessions at Griffith on a charge of malicious injury. He was fined $300 with the usual default provision and ordered to pay a little less than $1,000 in compensation.

[3] On 13 February 1984 the prisoner was dealt with in the Court of Petty Sessions at Griffith upon charges that he had driven a motor vehicle in a manner dangerous to the public; and that he had driven a motor vehicle at a time when there was in his blood a concentration of alcohol higher than the relevant prescribed concentration. In each case he was fined $700 with the usual default provision; and was disqualified from driving for a period of 3 years.

[4] On 28 January 1986 the prisoner was dealt with in the Local Court at Griffith on a charge of offensive behaviour. The sparse material available suggests that the incident was one of street fighting. The prisoner was fined $100 with the usual default provision.

8 The above matters do not seem to me to have any particular significance for present purposes. There is, however, one additional matter in the prisoner’s criminal antecedents, and it is a matter that has, in my opinion, real significance for present purposes.

9 On 26 January 1992 the prisoner was charged in the Local Court at Griffith with having assaulted on that day one Donna Andrews. The charge was a charge of summary assault, laid pursuant to section 61 of the Crimes Act 1900 (NSW). Exhibit G in the present application is a photocopy of relevant documents taken from the Local Court records. I note the following aspects, all of which I consider to be significant, of this charge:

10 First, the offence itself was an offence of violence. The summary in the relevant Fact Sheet reads as follows:

“On the afternoon of 26 January 1992 at Wilbriggie the accused and the alleged victim were at their home when a verbal argument began. The victim then alleged that the accused strode to a chair where she was sitting and shaped up to her. There began a struggle and the victim alleged that she was pushed to the floor and struck with a closed fist to the mouth. As a result of this she received bruising and swelling to both lips, to the right side of her cheek, and to her nose. The lower lip was cut and bleeding.
The accused denied this allegation stating that the alleged victim had fallen from her horse that afternoon and that is how she received her injuries.”

11 Secondly, this offence was committed at a time when the prisoner was at liberty on bail which had been granted to him in connection with the charge of having murdered Merrilyn Armstrong. That bail was revoked on 24 February 1992 following evidence that the prisoner had been drinking alcohol in breach of his bail conditions.

12 Thirdly, the assault upon Miss or Mrs. Andrews and the murder of Miss Armstrong, although polls apart as individual crimes, have some troubling common features: domestic physical violence visited upon a woman with whom the offender either is or has been living in some sort of a domestic relationship; a lack of self-control; aggression fuelled by the excessive intake of alcohol; and a seeming unwillingness to face up to the reality of the offending behaviour.

Any reports on the offender made by the Serious Offenders Review Council and any other relevant reports prepared after the offender was sentenced that are available to the Supreme Court: Clause 7(1)(a)

13 There is before this Court, as Exhibit B in the present application, a report in the usual form from the Serious Offenders Review Council. It shows, among other things, that the prisoner was originally classified A2, being confined while subject to that classification at the Goulburn Correctional Centre except for 10 weeks spent at Lithgow. In October 1996 the prisoner was reclassified B; and he has been detained, subject to that classification, at Junee, at Goulburn, at Silverwater and at Grafton. There has been only one minor incident of offending while in prison, and it is sufficient to say that I disregard it for present purposes.

14 The report of the Serious Offenders Review Council concludes with the following summary:

“(The prisoner) has made constructive use of his time in gaol and has strived (sic) consistently to better himself by way of personal development and vocational opportunities. During his imprisonment he has incurred only one gaol misconduct charge (for fighting with another inmate).
If the court is minded to re-determine (the prisoner’s) sentence, then the Council subject to his continued good behaviour, would recommend to the Commissioner that “the prisoner” be reduced progressively through the minimum security classifications and participate in external pre-release leave programs (sic), such as Day and Weekend Leave and Work Release, which are designed to facilitate an inmate’s staged re-introduction to the community and development of contemporary living skills.
In preparing and submitting this report, the Council has had regard to the matters to be considered under section 199 of the Crimes (Administration of Sentences) Act 1999.”

15 I observe that section 199 of the Crimes (Administration of Sentences) Act 1999 requires the Serious Offenders Review Council to have regard, among other things, to “the need to preserve the safety of the community”.

16 Exhibit D in the present application is a comprehensive psychological report prepared by Miss Christine Drayden-Thompson, who has been for the past 10-1/2 years psychologist-in-charge at the Grafton Correctional Centre. The report is counter-signed by one Lyndon Newell, as senior psychologist, at the North Cessnock Correctional Centre.

17 The report offers the following conclusions:

“(The prisoner) presents as a mature and level-headed person who is able to deal with environmental pressures and problem situations. To his credit he has received only one internal punishment in the last eleven years and has managed to sustain his personal growth and sense of well-being, against a background of very negative attitudes and experiences within the prison environment. Over the years (the prisoner) has shown that he has managed to cope with stressful set-backs and difficult inter-personal situations and has demonstrated the capacity to maintain equilibrium. He has found counselling beneficial and he has been able to monitor his state of mind and seek assistance when necessary. Clinical impressions are that (the prisoner) has made progress in personal growth particularly in the areas of self-esteem and self-confidence, with very little contact with his family.
(The prisoner) has been instrumental in co-ordinating groups to aid young offenders in Peer Support Programmes, and has generally contributed to the good order of the institutions in which he has been housed. Officers at Goulburn reported that he had a very beneficial influence on juvenile offenders brought in for the Day in Gaol programme, and he has been currently assessed by custodial staff at Grafton to be a positive role model in every-day gaol life.
He is the first to admit that he was bitter and angry when he first came to gaol, and although he is very sad about the time that he has missed with his son and family, he is mature enough to recognise and concentrate on the positive things that have come out of this period of incarceration.
If granted a minimum term of imprisonment, it would appear that the only requirement left to address is his preparation for re-entry into the community, which can be facilitated by progress through the minimum security institutions, to eventually partake in educational works release. (The prisoner) harbours realistic aspirations in regard to employment and re-connecting with his family, and he has a more than adequate support network and the personal resources to make the adjustment. (The prisoner) has been counselled in relation to his choice of lifestyle and his vulnerabilities, is aware of community resources and is willing to utilise them if necessary, and has shown that he is willing to seek assistance of others if problems arise.”

18 Exhibit E in the present application is a psychological report on the prisoner, which was prepared by Mr. W. John Taylor, consulting psychologist, in October 1989. I do not find it of any particular assistance in my present task. Certainly, it does not cut down, as I read and understand it, any of the assessments made in the much later report, Exhibit D, to which I have earlier referred.

The need to preserve the safety of the community: Clause 7(1)(b)

19 This is, of course, a critical consideration for this Court in connection with the present application. I make the following observations:

[1] The prisoner gave no evidence at the hearing of his present application. The Court is, therefore, unable to form any impression, even a tentative one, of the kind that might have been available had it been possible to watch, and to listen to, the prisoner in the course of his being tested by a proper cross-examination.

[2] The submissions which were put for the Crown drew attention, correctly and appropriately in my opinion, to the absence of any apparent remorse on the part of the prisoner either for the murder of Miss Armstrong or for the, admittedly less serious, assault of Miss or Mrs. Andrews. It is very difficult to know what to make of that state of affairs. It think that, in the end, there are only two things that this Court can do relevantly: first , to ensure that, should the present application be granted, then the terms in which it is granted will allow for the need for some very careful post-release supervision of the prisoner until it has been established with a proper precision and confidence that he does not represent any continual threat to, in particular, any other woman with whom he might become emotionally involved in the future; and secondly , to say that the Court, given the limited material available to it on the point, could not reasonably find as a fact that the prisoner has no such remorse, and that the absence of that remorse indicates that he is likely to deal violently in the future with any woman with whom he becomes so involved.

[3] Sensible regard should be had to the conclusions, earlier herein quoted, reached by the specialist professional psychologists who prepared the report Exhibit D in the present application. The opinions there expressed reflect, of course, the practical constraints to which the prisoner has been subject for the past ten or so years. It does not necessarily follow that the prisoner, because he has been kept more or less quarantined from excessive alcohol consumption and its associated problems while in custody, will continue, in effect, to quarantine himself after his release. As in so many legal contexts, the best that the Court can do is to make a prudent assessment of future probabilities based upon known past facts and circumstances. Approached in that way, I think that the fair conclusion is that all the available indicators suggest that the prisoner has made real and significant progress towards ultimate rehabilitation; and that it is more probable than not that, given some appropriate post-release assistance and supervision, he will not re-offend in any serious way.

The age of the offender at the time the offender committed the offence and also at the time the Supreme Court deals with the application: Clause 7(1)(c)

20 The prisoner was born on 7 January 1965. At the time of his arrest on 17 June 1989 he was aged, therefore, 24 years and some 5 months. When he stood for sentence on 28 August 1992, he was aged 27 years and some 7 months. He is now aged 37 years and not quite 10 months.

Any other relevant matter: Clause 7(1)(e)

21 I have regard to the following matters:

[1] Because the prisoner was sentenced on 28 August 1992, clause 7(1)(d) is not applicable.

[2] The learned sentencing Judge, McInerney J, made no relevant recommendations, observations or comments of such a kind as would attract the provisions of clause 7(3). His Honour’s remarks on sentence run to a bare dozen lines, and proceed upon the basis that, as his Honour put it, “the only sentence that is open to me is to sentence the prisoner to penal servitude for life” .

[3] Exhibit F in the present application is a Victim Impact Statement compiled by Mrs. Diane Sutcliffe, the late Miss Armstrong’s sister. A great deal of thought and a great deal of feeling have obviously gone into the preparation of this report. There is no reason not to accept what is said by Mrs. Sutcliffe, and I do accept it. The central point of what is said by Mrs. Sutcliffe is best expressed in her own words:

“A major fear that I do have is that (the prisoner) will return to Griffith and surrounding area and we will have to be taunted by encounters again, which are very traumatic, along with the general community telling the family of sightings. This fear is given the fact that he has never shown any remorse on past encounters with family members. This and court listing bring all the grieving and emotions back to the surface again and create tension and apprehension in the family.”
The taking of Miss Armstrong’s life some 13-1/2 years ago must have been a terrible event in the life of every member of her immediate family. It is wrong that, even after 13-1/2 years, there is a residual fear of the kind expressed by Mrs. Sutcliffe. The only thing that the Court can do in order to be helpful in that regard is to recommend, as will be done in due course, that a copy of this judgment and of the Victim Impact Statement be kept with the prisoner’s prison file, so that any post-release parole conditions will take into account the imperative need to protect Mrs. Sutcliffe and her family from the future possibilities of which they are at present so afraid.


[4] Exhibit 2 in the present application is a hand-written letter from Mrs. Emma Clarke, who is the prisoner’s mother. There is no reason not to accept what Mrs. Clarke says in her letter, and I do accept it. It is sufficient to say that the letter vouches for the preparedness of the prisoner’s parents to welcome him home and, as Mrs. Clarke, puts the point, “to help him re-start his life in our community” . The availability of such parental support is a significant factor in the fair assessment of the prisoner’s present application.

[5] The prisoner has a son who is now aged about 11. The prisoner re-established contact with his son in about July 1998, that is to say when the boy was aged about 7. The son is in the care of his maternal grand-parents, because his natural mother has psychiatric problems which render her incapable of looking after him on any stable long-term basis. I infer from what is said in connection with this topic in the psychiatric report Exhibit D in the present application, that it means a lot to the prisoner to have in prospect a real opportunity of re-connecting with his son on exactly such a stable and long-term basis. It seems to me to be a reasonable inference that some such properly organised and supervised re-connection between father and son would be a good thing for both of them. It is, in my opinion, obviously in the public interest to do whatever can properly be done in order to promote such a re-connection between the prisoner and his son.

Conclusions and Orders

22 In my opinion:

[1] The present application ought to be granted in some appropriate way. The Crown did not contend otherwise.

[2] The Court is empowered to achieve that objective in any of a number of alternative ways that are spelt out in clause 4 of Schedule 1 to the Act. I have come to the conclusion that the proper approach in the present case would be to set a specified term, together with a non-parole period in respect of that specified term. Because the prisoner was remanded in custody for the relevant offence, the date on which he was first so remanded, that is to say 17 June 1989, is to be taken as the date of commencement of any non-parole period now set by this Court as part of a re-determination of the life sentence currently being served by the prisoner: see clause 5(1) of Schedule 1 to the Act. Clause 5 does not say in so many words that the new head sentence, also, is to date from, relevantly, the date of first remand in custody. Sub-clauses (2) and (3) of clause 5 seem to me, with respect, to be oddly phrased in the context of a proposed present re-determination of a long-current sentence of life imprisonment; and they seem to me to give, in any event, no assistance in connection with the proper dating of a re-determined head sentence. I propose to approach that problem upon the basis of normal sentencing principles: that is to say, I propose to date the re-determined head sentence and the nominated non-parole period from 17 June 1989.

[3] The prisoner was in custody from 17 June 1989 until 2 August 1989, a period of not quite 7 weeks. He was on bail from 2 August 1989 until 24 February 1992, a period of 2 years and almost 30 weeks. He was returned to custody, bail refused, on 24 February 1992, and he has been in unbroken custody from that date: that is to say, for a period of almost exactly 10 years and 8 months.

[4] I was referred by both parties to a number of roughly comparable decisions. I say “roughly comparable” because although the referred decisions have a general usefulness as comparative indicators, they do not provide, in any particular case, a precise analogy with the present matter. What I have seen of those other cases tends to confirm, albeit in a broad-brush sort of way, what I would have thought in any event to have been an appropriate level of re-determined sentence in the present prisoner’s particular case.

[5] I have come to the conclusion that the present application should be granted; that there should be substituted for the prisoner’s current sentence of life imprisonment a sentence of imprisonment for 20 years; that a non-parole period of 15 years should be set; and that both the substituted head sentence and the accompanying non-parole period should be dated with effect on and from 17 June 1989. I have considered whether some more lenient non-parole period should be set by reason of “special circumstances”; and I have come to the conclusion that no such adjustment should be made in the present case. That is so, not because I think that there are no circumstances capable of being characterised correctly in point of principle as “special circumstances”: it is, rather, because my own firm view is that a non-parole period, that is to say a period actually to be served in custody, of less than 15 years dated back to 17 June 1989, would simply not be adequate to the circumstances of the present particular case.

23 Kenneth Lloyd Clarke, your application for a re-determination of your current sentence of life imprisonment is granted. In lieu of that sentence you are sentenced to imprisonment for 20 years, commencing on 17 June 1989. In connection with that sentence a non-parole period of 15 years is set, and that non-parole period also will commence on 17 June 1989. That non-parole period will expire, accordingly, on 16 June 2004, which will be, therefore, the earliest date upon which you will be eligible for release to parole.

24 The Court directs the Registrar of the Court to communicate forthwith to the Commissioner of Corrective Services the following recommendations:

[1] That the prisoner be afforded, throughout the remainder of his time in custody, every opportunity compatible with proper prison administration and discipline for regular contact with his son, Brendan;

[2] That a copy of this judgment, and in particular a copy of the Victim Impact Statement Exhibit F in the present application, be retained at all times with the prisoner’s Correctional Service file, and brought to the specific attention of the Parole Board on any occasion upon which the Board considers the suitability of the prisoner for release to parole in accordance with the re-determined sentence passed upon him by this Court.

25 The Registrar is directed to transmit urgently to the Commissioner of Corrective Services a copy of this judgment and a copy of the Victim Impact Statement Exhibit F in the present application.

26 The exhibits are to remain in Court for a period of 28 days from today. Thereafter, if there has been no appeal against any part of the present judgment, the exhibits may be handed out to the parties respectively entitled to them. Should there be any such appeal, then the exhibits are to remain with the Court until further order.

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Last Modified: 10/31/2002