The Queen v Clark [2015] VSC 377

2 The maximum penalty for manslaughter is 20 years' imprisonment and I must now sentence you for this offence. Some of what I am about to say you may find difficult to understand but I am sure your counsel will explain the effect of it to you.

3 This offence of manslaughter was committed at your home in tumultuous circumstances. The deceased man, Rodney Clark, who was aged 44 years at the time of his death, was your first cousin and you described your relationship with him as being like brother and sister. His father and your father were brothers. When you and he were both young children you were looked after by your grandmother, Dorothy Smith, and raised in the family home at 41 Berkley Road, Ringwood where you were living at the time of the offence.

4 You and Rodney Clark were close as children and adults and you helped him out from time to time. You were both users of cannabis. He was a long time user of cannabis and addicted to it. He regularly purchased that drug from you and owed you money as a result. That was a source of tension between you. Apart from that there had been a physical confrontation between you and the deceased towards the end of 2013 when he struck you three times to the face causing you injury. After that incident you were wary of him and remained of that mind when he arrived at your home on the night that he died.

5 On 14 June 2014, the deceased left his home in Croydon South and spent some of the day in the Croydon area pawning electrical items to raise cash in an amount of about $160. Later in the day the deceased had gone to a bottle shop and purchased four cans of bourbon and cola. On the evening of 14 June, he left a friend of his at Croydon railway station and walked to the premises at 41 Berkley Road, Ringwood, arriving somewhere between 7.30pm and 8.00pm, and it was at these premises that he died. A post-mortem examination of the deceased later revealed that he had a blood alcohol content of 0.12 per cent together with evidence of cannabis usage in his blood of 6 nanograms per millilitre.

6 When he arrived at your premises that evening you were at home with your partner, William Wescombe, your former partner, Calvin Louwsma, and your three children, Nathan, Miranda and Leana.

7 Your earlier relationship with Mr Louwsma produced the children Nathan Clark and Miranda Clark, who are aged 21 years and 8 years respectively. The relationship that you had with William Wescombe resulted in the birth of Leana in August 2013.

8 As the deceased arrived you were bathing your youngest child. The deceased knocked on the door and you permitted him to enter. At the time he was drinking from one of the cans of bourbon and cola and you described him as being drunk. After he entered the premises he got into an argument with Mr Wescombe and also Nathan Clark. The evidence suggests that the deceased was the aggressor in the argument and quite threatening and abusive in the way he was speaking. The evidence also indicates that to some degree at least the deceased assaulted Mr Wescombe by pushing him and also that he grabbed Nathan Clark by the throat. Mr Wescombe states that as the deceased man moved towards you, you took a kitchen knife from the sink and said "Keep away from me, Rodney" and held it in his direction demanding that he leave the house. At about that stage, Mr Louwsma entered the kitchen and was successful in ushering the deceased man from the kitchen down the hallway to the front door. Although he was reluctant, Rodney Clark actually exited the premises through the front door and the door was locked behind him.

9 Unfortunately after that happened, and the situation having settled down to some degree, you went to the front door of the house, still with the knife you had picked up from the sink. You were obviously upset with the deceased and with good reason, but then the situation spiralled out of control. You unlocked and opened the front door and then stabbed the deceased man once to the upper chest and then left the knife embedded in his chest, running towards the back of the house. The deceased collapsed on the front porch of the house. Neighbours heard someone yelling about getting an ambulance and some screaming, which is likely to have come from the deceased. A neighbour, Mr McIntosh, heard sounds like a door banging and then a male voice yelling "You're fucked Lisa" or words to that effect.

10 Police and ambulance arrived, and by the time the paramedic officers had become involved it was apparent that Rodney Clark had died. You remained present at the premises and you were arrested by police. It seems likely that the deceased man removed the knife from his chest, as it was found located near his right hand. It seems that he also endeavoured to, in some way, gain entry to the premises because there were signs that some damage had been done to the front door with a sharp object.

11 In later conversations with the police you asserted that you had acted in self-defence though you now accept that not to be so. In the interview you participated in on 14 June 2014, you described the relationship you had with the deceased and said that he was like a brother to you. You described him as being very drunk when he came around that night and that he had been upset because he had lost a job, which he was suggesting might have been in fact taken by Mr Wescombe. You described Rodney Clark as a violent person and a woman basher and referred to previous occasions on which he had assaulted you. In an interview on the following day you described your fear of the deceased and to something just "click[ing]" and then you stabbed the deceased.

12 By virtue of the nature of the charge you face, the Crown accepts, without hesitation, that you did not have any intent to kill the deceased man or cause him really serious injury at the time you stabbed him. Nonetheless this is a very serious and tragic incident. It is properly described by your counsel in his submissions on your behalf as grave.

13 The circumstances also demonstrate that there was no planning in what you did and your actions were emotional and spontaneous.

14 A Victim Impact Statement was filed on behalf of Ms Victoria Hall, which was sworn on 3 March 2015. Ms Hall was a friend of Rodney Clark. Ultimately, Ms Hall did not ask for the victim impact statement to be read in court. Clearly Ms Hall and Mr Clark were close friends, and she has described the sadness and feelings of loss that she has suffered as a result of his death. From a reading of the victim impact statement it does appear that the sense of loss Ms Hall feels will last for a very substantial period of time.

15 I have taken the victim impact statement into account in determining the sentence I should impose on you.

16 You are now almost 41 years of age, having been born on 6 August 1974. You were the only child of Arthur Clark, who is an indigenous man, and Barbara Clark, who passed away in 1988 when you were aged 14. You lived with your parents until they separated when you were about 5 years of age and you were then raised by your grandparents, Dorothy and Alan Smith, at the premises in Ringwood. Those were the premises in which your cousin, Rodney Clark, the deceased, was also living. It appears that at the age of 5 years you suffered some form of brain injury on a merry-go-round which resulted in numerous stitches and two weeks in the Royal Children's Hospital. You suffered a depressed skull fracture.

17 Your earlier recollections of the household are not happy ones. Your grandfather was a heavy drinker and your grandparents had regular violent confrontations. The children often tried to break up the violence and it regularly reached a level where police were called to the house. From the age of about 6 or 7 years you say that your grandfather began to abuse you sexually, and these incidents which involved significant penetrative acts and occurred several times a week until you were 12 years of age, are amongst your early recollections. These matters were never reported and not the subject of police investigation. I should make it clear that I do not suggest that means they did not occur. Your cousin Robert, who was Rodney Clark's brother, also lived in that house and in 1981, at the age of 18 years, he died.

18 Your education was a struggle for you. At primary school you had difficulties concentrating and learning and regularly got into trouble. Because you are part indigenous you were a victim of racism, enduring labels like 'half-breed'. When you were 14 your mother committed suicide. When you were 15 you left school. It appears that you left school without achieving literacy and spent a good deal of your time with other young people who had failed at school and who spent much of their time at railway stations with nothing to do. You began to drink when you were 14 and at times you drank heavily as well as using cannabis and amphetamines. By the age of 16 you were spending time in youth training centres, but then met the father of two of your children, Calvin Louwsma, and so began a relationship. You and he were together for 15 years. You obtained occasional employment assisting a hairdresser, and working in a fish and chip shop but struggled because of your inability with words. At age 25, you obtained work in an aged care facility and then undertook a course in relation to aged care, in which you appeared to succeed. For three years you worked as an aged care attendant and this was work that you enjoyed, resulting in you feeling valued.

19 I have a written reference from Sarah Kinstler with whom you worked at Gracedale Private Nursing Home between 2001 and 2003. She speaks very highly of your empathy and compassion for those at the home. She also attests to your punctuality and the conscientious approach you had to your work there.

20 Subsequently, however, you began to drink heavily and use amphetamines, and as a result of relatively minor thefts from the aged care centre your employment was terminated.

21 On 9 March 2006, your second child, Miranda, was born.

22 In 2007, you and Mr Louwsma separated but continued to live together. You moved back to the family home and met William Wescombe (known as Jimmy), in late 2011. This has been a difficult relationship, but a child was born of that relationship, Leana, on 4 October 2013. You are therefore now the mother of three children. By virtue of your imprisonment you are separated from them and that will continue for some time yet. This is obviously difficult for you.

23 You have used alcohol and drugs to your detriment. You began drinking when you were 15 years old and you were drinking reasonably heavily in the days leading up to committing this offence. You also had used cannabis and amphetamines.

24 Your previous convictions to which I will again refer are consistent with your history of alcohol abuse as well as traffic offences. You have not been imprisoned before.

25 On your behalf, I was urged to the conclusion that certain legal principles which in legal shorthand may be described as principles 1, 3 and 4 derived from the judgment of the Court of Appeal in R v Verdins[1] apply in your case. The prosecution took no issue with those arguments and indeed effectively supported them.

26 After your mother died you saw a psychologist. Over the years you suffered from depression and you were medicated with Zoloft. At the time of the offence you had run out of that drug. In custody, your medication has apparently resumed.

27 In the course of the plea on your behalf Mr Dempsey relied on the reports provided by Mr Guy Coffey dated 31 March 2015 and Mr Martin Jackson dated 2 April 2015.

28 Mr Coffey is a clinical psychologist having seen you three times in March of this year. He assessed that there were no signs of psychosis and no thought or perceptual disorders. He examined your history of psychological functioning describing your feelings of insecurity and, at times, intense anger. However your IQ is low and Mr Coffey suggested that you have a mild intellectual disability that may well have affected your ability to reason under stress. Mr Coffey also concluded that for much of your adult life you suffered from a depressed mood and for an extended period would have suffered from a persistent depressive disorder. You apparently took the medication Zoloft for some period of time. You were not severely depressed when you stabbed Rodney Clark. Mr Coffey described you as having a cannabis dependency and as drinking heavily. However you did not, in his opinion, suffer from a mental disorder which would have grossly impaired your judgement or caused you not to be able to understand the nature of your actions or their consequences. You acted intentionally when you committed this offence.

29 Mr Jackson disagreed as to the IQ level and concluded that you do not have a mild intellectual disability or any brain injury as a result of your childhood injury. However Mr Jackson did agree with Mr Coffey that your borderline personality traits affected your ability to exercise judgement, make calm and rational choices and to think clearly when you were emotionally aroused or upset.

30 On the basis of the reports of Mr Coffey and Mr Jackson your counsel argued that there should be some reduction in your sentence on the basis that the wrongfulness of your actions is reduced. In addition it was argued that the need to remind you not to engage in this kind of conduct again was reduced as was the need to use your case to send a more general message of deterrence to the community. You have what is described as some intellectual impairment. I do accept that at the time of this offence, apart from being fatigued, you were depressed and that your functioning was affected by your mental state. You were certainly wary and frightened of the deceased man. Your ability to exercise appropriate judgement was interfered with and, indeed, the circumstances in which you attacked Rodney Clark suggest that in themselves.

31 To a degree, but only a modest degree, I am persuaded that your mental state does reduce the moral culpability of what you did. Also, rather than general or specific deterrence being eliminated there will be some moderation of both of these factors as sentencing considerations. I do place significant weight on your deprived background,[2] which I have described. Apart from your mental state it is not surprising that someone who has suffered the emotional turmoil that you have in the early stages of life finds coping with stressful situations difficult.

32 You are apparently receiving some psychological attention in custody, and it is very important for you and the community that such assistance be continued for the rest of the time you are in custody.

33 There can be no issue that you pleaded guilty at the earliest possible time. You had been originally charged with murder, but at the committal proceedings you offered a plea of guilty to manslaughter and that offer was quite properly and appropriately accepted. No witnesses were required to be called during the committal proceedings. As Mr Coffey observes in his report, your offending was completely unplanned and you told him that you were horrified and hysterical immediately upon realising what you had done. You expressed to him that you would miss the deceased and that you did not want to harm him. Your only explanation for your action was that you were frightened of the deceased at the time that you stabbed him.

34 I do not have any doubt that you have a very significant feeling of remorse for what has occurred and that your plea of guilty is a reflection of that emotion.

35 Your counsel informed me that you had seven court appearances over a period of some 19 years, with many of those appearances occurring when you were a child. Your most recent convictions were in 2009 in relation to reckless conduct endangering serious injury, unlicensed driving and exceeding the prescribed concentration of alcohol. In the previous year you also had convictions for drink-driving, and in 2005 convictions for theft, and obtaining property and financial advantage by deception. All of the matters that I have referred to were dealt with in the Magistrates' Court and none of them involved any period of imprisonment. It is put on your behalf that alcohol played a significant part in your previous offending, which seems obviously true. Mr Dempsey made the point on your behalf that alcohol was not a factor in the commission of this offence. I accept the submission he made that on no previous occasion has the outcome in court been directed towards dealing with the underlying difficulties from which you are suffering.

36 You have the support of your family. Your father, grandmother, former partner and current partner were in court and supporting you. I have written references of support from your son Nathan Clark, Jimmy Wescombe and Calvin Louwsma. They describe the effect of what you did on the whole family but they also portray you as someone who is committed to your family with many good qualities particularly as a mother.

37 While you have been in custody for in excess of 12 months you have completed a number of courses including on management of emotions and loss. You have also completed other courses including in first aid and working safely in the construction industry. You are apparently working in horticulture. There have been no incidents which would reflect adversely on you.

38 However, as Mr Coffey has reported your successful rehabilitation is dependent in part on you receiving specialist psychological treatment for your borderline personality features over 18 months to two years. You also need follow-up as required with psychological and pharmacological treatment of depression and drug and alcohol treatment. I regard your prospects of rehabilitation as good so long as you get the assistance you need. I am satisfied that you will do what you can to improve yourself and to deal with the difficult issues that have confronted you.

39 This is a tragic case and at the lower end of the broad range of conduct that constitutes manslaughter. I accept that it is tragic for you as you have lost your first cousin. I accept the submission that the deceased man died in circumstances that were unplanned and were a reaction to his behaviour which had been aggressive even after he had physically left the house. I agree with your counsel that the offence was, as he put it, situational and I do not regard you as a potential threat of any kind to the community. The deceased had been violent toward you on previous occasions and you were not well equipped to handle the emotional aggression you encountered. You are remorseful; you pleaded guilty, you have good prospects for a life beyond this case. You are a woman with a supportive family and plenty of life left to live, and I think you are someone deserving of an opportunity.

40 Taking into account the circumstances of the offence, your personal circumstances, your plea of guilty and the life of deprivation and abuse you have endured, in my opinion an appropriate sentence is that you be imprisoned for a period of five years for the crime of manslaughter. I will fix a period of three years to be served by you before you are eligible to apply for release on parole.

41 I declare that your pre-sentence detention is a period of 411 days including this day and I direct that such period be reckoned as a period of imprisonment already served pursuant to s 18 of the Sentencing Act 1991.

42 Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty I would have imposed a sentence of seven years' imprisonment with a minimum period of four years before eligibility for release on parole.

43 I will make the disposal order sought by the prosecutor.

[1] (2007) VSCA 102 in particular at para [ 32].

[2] See per Buchanan JA in Leeder v R [2010] VSCA 98 at para [21].