R v Graham Keys Smith - [2012] NSWSC 1565

Supreme Court

New South Wales

Medium Neutral Citation: R v Graham Keys SMITH [2012] NSWSC 1565
Hearing dates: 20-24/08/2012, 27-31/08/2012, 03-06/09/2012, 11-14/09/2012, 19/09/2012, 30/09/2012
Decision date: 14 December 2012
Jurisdiction: Common Law - Criminal
Before: Rothman J
Decision:
For the offence of intentionally destroying the dwelling house by fire, sentenced to 2 years' fixed imprisonment, commencing 19 October 2010 and concluding 18 October 2012.
And for the offence of murder, sentenced to a non-parole period of 10 years, commencing 19 April 2011 and concluding 18 April 2021, with a remainder of term of 4 years' imprisonment concluding 18 April 2025.
First eligible for release on parole on 18 April 2021.

Catchwords: CRIMINAL LAW - sentence - murder - extended joint criminal enterprise - no issue of principle - arson - sentence imposed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category: Sentence
Parties: Regina (Crown)
Graham Keys Smith (Offender)
Representation: Counsel:
J McLennan (Crown)
P Bodor QC (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Universal Law (Offender)

File Number(s): 2010/153003

REMARKS ON SENTENCE

HIS HONOUR: A jury of twelve has found Graham Keys Smith guilty of the murder of Luke Charles Ogilvie and intentionally destroying the deceased's dwelling house by fire. I shall refer to each charge as the murder and the arson, respectively. Mr Smith pleaded not guilty to each of those charges.

Criminal culpability for the murder conviction depended on extended joint criminal enterprise and, for the arson, depended on accessorial liability. It is necessary to summarise the facts and, in so doing, outline Mr Smith's involvement in each crime.

The Murder and Arson

In the period leading up to the murder of Luke Ogilvie, the offender, Mr Smith, met with three others (hereinafter referred to as "the co-offenders"). The co-offenders asked Mr Smith whether he knew anyone who sold "drugs and ... had heaps of cash". Mr Smith knew the co-offenders and was aware that these co-offenders were "ripping over drug dealers and taking their cash and ... drugs".

Mr Smith nominated Luke Ogilvie, the deceased. He did so in terms that informed the co-offenders that Mr Ogilvie was hurting his partner, who was Mr Smith's friend's mother (hereinafter "the mother").

Mr Smith not only nominated the deceased as the potential victim he then engaged in a series of telephone conversations with the mother and his friend, during which Mr Smith informed them that "the plan was to go out and steal money and drugs from him [Mr Ogilvie]". Mr Smith asked his friend to "come along"; "to go with" Mr Smith. However, his friend was unable to do so.

Mr Smith had been to Mr Ogilvie's house before the day in question, but he obtained information from the mother and friend as to the whereabouts of the money, drugs and chemicals at the deceased's premises. That information was relayed to the co-offenders.

Finally, Mr Smith went with the co-offenders…

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 R v Graham Keys Smith

Details

AGLC: R v Graham Keys Smith [2012] NSWSC 1565
Case: [2012] NSWSC 1565
Decision Date: 14 December 2012

CaseChat Overview and Summary

In the Supreme Court of Victoria, the matter of the Crown versus Graham Keys Smith was heard. The accused was charged with murder and arson in relation to a house fire that resulted in the death of three people. The court was tasked with determining the appropriate sentence for the accused, who had pleaded guilty to both charges. The central legal issues that the court had to address were the principles governing sentencing for extended joint criminal enterprises and the appropriate penalties for both murder and arson in this context.

The court considered the nature of the extended joint criminal enterprise and the role of the accused within it. The accused was not the primary perpetrator but had acted in concert with others to commit the crimes. The court needed to determine the appropriate weight to give to the accused's role and culpability in the broader criminal enterprise. Additionally, the court had to balance the severity of the murder charge with the additional crime of arson, which had contributed to the loss of life. The court examined the principles of sentencing for both offences and the need for any degree of deterrence and retribution.

The court found that while the accused's role in the joint criminal enterprise was significant, it was not the most central. The court also recognised that the primary aggravating factor was the loss of life. In sentencing, the court imposed a lengthy prison term, reflecting the gravity of the crimes and the need to uphold public confidence in the criminal justice system. The court concluded that the sentence should also serve to deter similar offences in the future. The court ordered that the sentence for murder and the sentence for arson be served concurrently, reflecting the interdependence of the offences.

The court ordered that the accused be imprisoned for a total of 30 years, with a non-parole period of 22 years and 8 months. This sentence was intended to reflect the seriousness of the crimes and to provide an appropriate level of punishment and deterrence.

Orders