DPP v Smith - [2012] VSC 314

THE SUPREME COURT OF VICTORIA

Not Restricted

AT WODONGA

CRIMINAL DIVISION

S CR 2012 0015

THE DIRECTOR OF PUBLIC PROSECUTIONS

STUART CHARLES SMITH

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JUDGE:	BONGIORNO JA
WHERE HELD:	Wodonga
DATE OF HEARING:	3–6 July 2012, 9 July 2012
DATE OF SENTENCE:	9 July 2012
CASE MAY BE CITED AS:	DPP (Vic) v Smith
MEDIUM NEUTRAL CITATION:	[2012] VSC 314

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CRIMINAL LAW – Sentence – Negligent manslaughter – Accused and two friends hunting Sambar deer at bush location – Accused mistook friend for deer and shot and killed him – Accused failed to adequately identify target – Plea of guilty – Accused was 23-year-old young man of unblemished record – Genuine contrition and remorse – Crown concession that negligence fell at lower end of scale – Sentencing purposes able to be met without imposition of term of imprisonment – Sentencing proceeding adjourned for five years and accused convicted and released on giving undertaking pursuant to s 72 of Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Moore	Mr C Hyland, Solicitor for Public Prosecutions
For the Accused	Mr S Gardner	Peter S Dunn & Associates

HIS HONOUR:

Stuart Charles Smith has pleaded guilty to one charge of manslaughter, having voluntarily but unintentionally killed Nicholas Welch on 25 July 2010 whilst they were both on a hunting trip in bushland at Tallangatta South. They, together with Nicholas Welch’s twin brother Jacob, were hunting Sambar deer when Smith, thinking he had aimed his high-powered rifle at a deer, fired. The shot killed Nicholas Welch. The full factual circumstances of this tragedy and the Crown case on the manslaughter charge are set out in the Crown opening, a copy of which is appended to these sentencing remarks. There is accordingly no need for those circumstances or that case to be repeated here.

The offence of manslaughter can take a number of different forms. In this instance, the Crown alleged that Smith unintentionally killed Nicholas Welch in circumstances of gross negligence ― that is to say, circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised and such a high risk that death or grievous bodily harm would follow that his act in killing Welch merited punishment as a crime.[1] Stuart Smith undoubtedly thought he was firing at a deer. Clearly, he had not identified his target adequately ― whether because of foliage cover, lack of adequate light or some other, now unknown, circumstance.
[1]See Nydam v The Queen [1977] VR 430.

Had Smith not pleaded guilty to this charge, a jury would have been empanelled and, after hearing all the evidence, would have had to determine whether it was satisfied beyond reasonable doubt that his conduct was of the kind described. The principal witness for the Crown would have been Jacob Welch, the deceased young man’s brother. By pleading guilty, not only has Smith fully and unreservedly admitted his responsibility for the death of Nicholas Welch,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Smith

Details

AGLC: DPP v Smith [2012] VSC 314
Case: [2012] VSC 314
Decision Date: 9 July 2012

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Smith involved the sentencing of an individual who had been convicted of negligent manslaughter. The accused, together with two friends, had been hunting Sambar deer in a bush location when the accused mistakenly identified one of his friends as a deer and shot him, resulting in his death. The accused pleaded guilty to the charge and appeared before the court for sentencing. The central issue before the court was the appropriate sentence to impose, taking into account the circumstances of the case, including the accused's age, his unblemished record, his genuine contrition and remorse, and the Crown's concession that the negligence fell at the lower end of the scale. The court was required to balance these factors against the need to ensure that the sentence met the purposes of sentencing, including deterrence, rehabilitation, and denunciation.

The court considered the principles of sentencing for negligent manslaughter, noting that the imposition of a term of imprisonment is not always necessary, particularly in cases where the offender has demonstrated genuine remorse and there is a significant prospect of rehabilitation. The court also took into account the accused's age and unblemished record, as well as the fact that the Crown had conceded that the negligence fell at the lower end of the scale. The court was satisfied that the sentencing purposes could be met without the imposition of a term of imprisonment and accordingly decided to adjourn the sentencing proceeding for five years. During this period, the accused was required to give an undertaking pursuant to section 72 of the Sentencing Act 1991, which allowed him to be released on the condition that he complied with certain requirements, including that he not commit any further offences.

The court's decision in this case reflects the importance of considering the individual circumstances of each case when determining an appropriate sentence for negligent manslaughter. The court recognised that in some cases, a term of imprisonment may not be necessary, particularly where the offender has demonstrated genuine remorse and there is a significant prospect of rehabilitation. The court's decision to adjourn the sentencing proceeding for five years and release the accused on an undertaking under section 72 of the Sentencing Act 1991, allowed the accused to demonstrate his rehabilitation and reintegration into society over a period of time, while also ensuring that the purposes of sentencing were met. The final orders of the court were that the sentencing proceeding be adjourned for five years and that the accused be released on giving an undertaking pursuant to section 72 of the Sentencing Act 1991.

Orders