R v Black [2011] VSC 152

3 After Mr Clarke had been stabbed twice, you went into Clint Black's bedroom and told him that you had hurt Wayne. Your son went into the kitchen and saw Mr Clarke, grabbed some towels and told you to leave the premises. He called his girlfriend at 3.57pm and asked if you could go to her place. Your son then attempted to perform first aid before carrying Mr Clarke to his car and placing him in the back seat, and as he drove towards the Geelong Hospital, he called "000". An ambulance subsequently met him in Gheringhap Street, but on arrival, the ambulance found Mr Clarke not breathing, unconscious and with no pulse. He was treated at the scene and en route to the hospital, but at the hospital they were unable to resuscitate him and death was certified at 4.50pm.

4 A post-mortem was conducted the following day and it was determined that Mr Clarke had died as a result of haemorrhage and two stab wounds to the chest. Both stab wounds penetrated the chest wall, with the lower of the two wounds almost completely dividing the left fifth rib, and the upper stab wound penetrating through the intercostal muscle between the fourth and fifth rib. One of these wounds penetrated the apex of the heart, resulting in massive internal bleeding. The deceased was found to have a blood alcohol content of 0.22 grams per 100 millilitres of blood.

5 At about the time that the ambulance was attending upon Mr Clarke in Gheringhap Street, you attended at the Geelong Police Station as three police officers were leaving in response to the report of a stabbing. You told the police officers that it was you that they would wish to speak to, and when asked why, you said "The stabbing, I did it". The police then attended at 5 Beretta Court, where a bloodstained knife and blood were located in the area of the kitchen.

6 You were subsequently interviewed at the Geelong Police Station and in that interview you told the police frankly that you came to the police station to report a stabbing, that you did it and that you could not justify what had happened.[2] You told the police initially that you did not mean to,[3] and then later said, "At the time, I wanted to kill him".[4] The Crown rely upon this statement as an indication that you had the necessary intention to kill or cause really serious injury to the deceased, which intention is further evidenced by the location, nature and number of the stab wounds.

7 You were initially presented on a charge of murder, but the Crown has accepted your plea to the count of defensive homicide on the basis that you admit that you killed Wayne Clarke in the belief that it was necessary to carry out that conduct in order to defend yourself from the infliction of death or really serious injury in circumstances where such belief was not based on reasonable grounds. The Crown did not dispute that you have been subjected to ongoing harassment and intimidation which, as such, would come within the definition of "family violence" pursuant to s 9AH of the Crimes Act 1958. Indeed, there was a long history of drunken verbal abuse by Mr Clarke towards you, and your son, Clint Black, reported, "Most of the times from what I saw Wayne treated mum like shit especially if he'd been drinking. If he had been drinking he was like a tormentor".[5] Clint Black also described occasions when Mr Clarke was abusive towards you and he had to "pull him up because it was getting a bit out of hand. I don't know what he would've done. I've never seen him hit her but I have seen bruises on her".[6] In your record of interview, you told the police that you should not have let it get to you, but it was a bit hard when it was rubbed into you day in, day out[7] and that "To everyone, Wayne was a gentle bloke, he was polite and everything. No-one knew, like, he was very cunning".[8]

8 In these circumstances, where the family violence was limited to threats, intimidation, harassment, jabbing and prodding as it was on this occasion, the Crown contend, and again it is acknowledged by your plea, that the belief that the knife could have been turned on you or that you had to get him first, or that you yourself were at risk of really serious harm if you did not act was not based on reasonable grounds.

9 The deceased, Wayne Maxwell Clarke, was 56 years of age at the time of his death. He was employed as a cleaner for the BP service station on the Princes Highway in Little River. He had two adult sons aged 35 and 33 from whom he has been estranged for approximately the last 20 years. Victim Impact Statements made by his sisters, Marlene Grayson and Pamela Tascas, were tendered in evidence as Exhibits "C" and "D" respectively. Ms Grayson describes her brother as a simple, kind person. She speaks of the many fond, happy and sad memories she has of her time growing up with him and later into their adult lives. Ms Tascas speaks of the close relationship her children had with her brother, Wayne, of her own close relationship with him as a child; she also describes him as kind and gentle.

10 I turn now to matters personal to you. You were 53 at the time of this offence, and you are now 55. A report by Mr Jeffrey Cummins dated 1 April 2011 was tendered in evidence on your behalf as Exhibit "2". Mr Cummins, in his report, details your personal circumstances and antecedents, which I accept. You are one of five children. Your father was a physically and emotionally abusive alcoholic. He was violent towards you and your mother. An older sister, whom you regarded as your protector, was killed by a drunk driver when you were 13 and she was 18. Such was the attitude of your father and brothers to that driver that your family were advised to move from Ballarat to Geelong. This, they did, and upon settling in Geelong, you did not resume your schooling. You entered the workforce at 14, working in a cake shop for five years. You married at 18, and that marriage produced three sons. Your husband was also an alcoholic, and that marriage ended when you were in your late 20s. Of your two brothers, one you describe as a heavy drinker, the other you describe as a violent alcoholic who was also physically abusive towards you. You were also subject to sexual abuse in your childhood years. One of your sons is also an alcoholic and, by reason of your drinking habits as described to Mr Cummins, he formed the opinion that at the time of the offending you would have attracted a diagnosis of binge drinking, which is a variant of alcohol dependence. Mr Cummins opined that your binge drinking was very much related to your relationship with Mr Clarkee and, as such, would have to be monitored in the future, but was not otherwise a risk factor. Nonetheless, you have an impressive work record. You have remained in employment, essentially throughout your life. When your youngest child turned seven, you began work on the production line at the Ford factory at Geelong, where you worked for several years. You then worked as a spray painter for nine or ten years, and then at Godfrey Hirst Carpet factory, where you were working 12 hour nightshifts at the time of your arrest and where you had been working for ten years.

11 Four testimonials were tendered on your behalf as Exhibit "1". Two of those testimonials are from two of your sons, Scott Black and Clint Black. They speak of the times you have enjoyed together as a family and describe you as a very loving, caring mother and grandmother. Your son, Clint, said of you as follows: "My mum has been a hardworking lady all her life, honest, loyal, dependable, always been there for me and everyone around her. This is so out of character for my mum". Two testimonials tendered by friends who have known you for 20 years describe you as decent, loyal, trustworthy, hardworking and that you are regarded as a person of good character, who has never been seen to be physically violent to your children or grandchildren. All of the testimonials speak of your remorse, shame and regret for your actions in killing Wayne Clarke.

12 In Mr Cummins' opinion, you presented as being of normal, slightly below average intelligence, moderately depressed and mildly anxious. You described yourself in the prison environment as a loner and that the only confidante in your life had been your mother, who died when you were in your late 30s or early 40s. You expressed to Mr Cummins what he regarded as genuine remorse, guilt and shame for having killed Mr Clarke, and these sentiments are confirmed in the testimonials tendered on your behalf. You also reported to Mr Cummins that you had met Mr Clarke at a local hotel when you were in your late 30s or 40s, and it appears that you had been in a relationship with him for the last five years. You describe Mr Clarke as an alcoholic who would drink anything, but mainly beer, every day. He, too, had had a hard upbringing and had been sexually abused by a family member. You described your relationship with Mr Clarke as follows:

"He was never physically violent towards me, but he'd poke me with his finger and he'd point at me and jab me in the chest and on the forehead. He would sometimes force himself upon me sexually. The thing is I got to the stage where I wasn't sure what he'd do to me. When he got past that point with his drinking, I'd just go and lock myself in my room."

13 From the basis of the history that you provided to Mr Cummins, he formed the opinion that you had been subjected to ongoing intimidation, ridicule and harassment by Mr Clarke. He formed the opinion that you had been repeatedly pointed at and jabbed, occasionally in the upper chest but typically on the forehead, in a manner which you regarded as being physically and emotionally abusive, and although you had stated that you had not been the victim of physical domestic violence from Mr Clarke, you did state that there were a number of occasions when he would sexually force himself upon you, and that you would give in to his sexual demands, which invariably occurred when he was intoxicated and, indeed, that you would frequently refuse to be sexually intimate because of his state of intoxication and how he treated you emotionally.

14 You also detailed to Mr Cummins an incident on an occasion when you returned home from an outing with a girlfriend and her husband and found a knife and gold coin placed on your pillow. Mr Clarke would not provide an explanation for this conduct, but from that time on, you never went out without him, and Mr Clarke became more possessive of you.

15 Mr Cummins, in his evidence before the Court, described you as "quite an unassertive and timid woman." In his opinion, you had reluctantly but genuinely disclosed your childhood sexual abuse and that, despite your contrition and remorse, you are at an early stage of coming to terms with the history of abuse in your childhood and in relation to the deceased, and that these experiences cumulatively were relevant to your mental state at the time of the offending.

16 It was Mr Cummins' evidence that in light of the history of family violence, here consisting of intimidation, verbal harassment and abuse, the regular uttering of degrading comments and unwanted sexual contact, this in his opinion were all clearly indicative of physical domestic violence, even though you yourself did not elevate that conduct to the level of domestic violence.

17 You also described to Mr Cummins the circumstances surrounding the events of 30 October. You arrived home at approximately 8.30am. Mr Clarke was still asleep and you woke him up. You both showered and then drove to do some shopping. En route, he was nitpicking and criticising you and niggling you with respect to the prospect of sexual intimacy on the weekend. At the hotel, he ordered a jug of beer, as opposed to a pot. You remembered Mr Clarke driving you home and his being quite drunk. You recalled that Mr Clarke was "going on and bringing Clint into the conversation".

18 You described the events in the kitchen as follows. "He was then coming closer and closer to me and was pointing his finger at me, and I was thinking because he was so drunk he would probably want to force himself on me sexually and I was just thinking well what else could he do to me. Would he just stick his finger into my forehead". You went on to say that somehow this situation reminded you of your father and in those circumstances you stabbed him twice in the chest. It appears also that at the time of the stabbing, you had been awake since 10.00pm the night before, worked the nightshift between midnight and 8.00am and had been drinking for some time from approximately 10.00am on that day, although it is not put that you yourself were intoxicated.

19 Mr Kissane, who appeared on behalf of the Crown, submitted that your offending lay in the middle of the spectrum of conduct constituting this offence by reason of the disproportionality between the threatened conduct and your subjective belief, the issue of family violence being relevant to your subjective belief that what you did was necessary and thereby reducing your moral culpability.

20 Mr Carter, who appeared on your behalf, submitted that in the spectrum of conduct which constitutes this offence, your offending lies at the lower end, and this was so because of the following:

(2) The relevance of family violence as it affects your moral culpability and explains your subjective belief.

21 Mr Carter further relied upon an analysis of sentence imposed in previous cases concerning defensive homicide. The offence of defensive homicide has attracted head sentences which have ranged between seven to twelve years, and non-parole periods which have ranged between four to eight years. Sentencing considerations included the nature of the attack and the offender's conduct after it, including whether it was indicative of remorse or otherwise. Mr Carter submitted that none of the cases involve persons with no prior convictions, and only one involved family violence,[9] which was an attack of several blows to the head of the deceased with a baseball bat in circumstances where sexual abuse of the offender's children had been threatened by the deceased. Thus Mr Carter submitted the present case falls into a different category of defensive homicide and thus may be said to be at the lower end of the spectrum.

22 In this case, your offending was not planned or premeditated. You had not previously been violent towards Mr Clarkee, and your actions were spontaneous, unplanned and momentary, and committed in the belief that it was necessary to defend yourself from the infliction of death or really serious injury, and that belief was informed by the family violence you had endured. Nonetheless, by your plea you acknowledge that such grounds as you had for that belief, were not reasonable, and that must be so when one considers that although Mr Clarkee had you cornered in the kitchen and, indeed, was intoxicated, he was not armed, and it was in those circumstances to have stabbed him twice may be said to be disproportionate to the threat he then posed to you.

23 I accept that your moral culpability is reduced by the family violence you have endured and the spontaneous nature of the stabbings, and I accept that this case is different from other cases of defensive homicide, but that does not, in my opinion, of itself place it at the lower end of the spectrum. Given that the offence requires an intention to kill or to cause really serious injury (one is no less than the other) and that the maximum penalty is 20 years' imprisonment, thus defensive homicide is to be regarded as a serious offence. I am satisfied that the circumstances of this offence place it towards the middle of the range. That is so because it involves the unlawful killing of the deceased with the requisite intent in his own home when, on this occasion, he was verbally intimidating you and poking you with his finger, but he was not armed, yet you responded by picking up a kitchen knife and stabbing him not once, but twice and stabbing him to the chest. That these facts are different from those of other defensive homicide cases does not make it less serious. Each case is to be regarded according to its own facts and circumstances.

24 In sentencing you, I take into account your plea of guilty and give you a discount for it. I take into account also that you acknowledged your responsibility for killing Mr Clarkee from the earliest opportunity and that your guilty plea although made before trial is to be placed in that context. I take into account also that your plea of guilty has served the interests of justice, saved the community the cost of a trial and Mr Clarkee's family the ordeal of one. I take into account also that your plea of guilty is borne of genuine remorse and that you were remorseful for your actions immediately after the offence, that you surrendered yourself to the police, made full admissions and cooperated with them. Your counsel submitted that such was your remorse that you never applied for bail, and I accept that you continue to be contrite, remorseful and ashamed. I take into account that, at the age of 53, you were regarded as a person of good character and at the age of 55 you have no prior convictions. I take into account also, and accept, that you have come from a very dysfunctional family, and yet you have managed to rise above the difficulties of your earlier family life, worked hard, been a good mother and grandmother and a law-abiding citizen. I take into account also that at the age of 55 you will be serving a sentence of imprisonment for the first time and a significant one at that.

25 I take into account also that, by reason of your good character, your remorse, your strong work ethic and the continued support of your sons, that your prospects for rehabilitation may be said to be excellent, particularly if you have the psychotherapeutic counselling that Mr Cummins recommended to help you better understand your childhood experiences and emotions.

26 Against these matters stand the nature and gravity of the offence here committed. Despite the manner of its commission and your reduced moral culpability, your conduct nonetheless has resulted in the loss of life and, indeed, the loss of life of a person you professed to have loved.

27 Any sentence I impose must serve to punish you and act in denunciation of your conduct. I accept that in the circumstances of this case, little weight need be given to specific deterrence. Nonetheless, due weight must be given to considerations of general deterrence so that like-minded members of the community will know that the law regards life as sacrosanct and that an unlawful killing, even in circumstances such as these, will be met with condign punishment. In sentencing you, I take into account all matters which go in your favour, and without in any way diminishing the nature and gravity of the offence here committed, you are convicted and sentenced to 9 years. In order to address your prospects for rehabilitation, which I accept are to be regarded as excellent, I propose to order that you serve a non-parole period of 6 years. I declare that you have already served by way of pre-sentence detention a period of 529 days, and I declare, pursuant to s 6AAA of the Sentencing Act, that were it not for your plea of guilty, although that is only one of the factors relevant to the sentencing discretion, I would have sentenced you to 11 years with a non-parole period of 8 years.

[9] R v Spark [2009] VSC 374.