R v Smart - [2008] VSC 155

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1533 of 2007

THE QUEEN

KEITH HERBERT SMART

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2008
DATE OF SENTENCE:	13 May 2008
CASE MAY BE CITED AS:	R v Smart
MEDIUM NEUTRAL CITATION:	[2008] VSC 155

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CRIMINAL LAW – Sentence – Manslaughter – Plea of not guilty – Circumstantial case – Lack of motive – Failure to disclose whereabouts of the body an aggravating factor – Remorse – Medical condition as a mitigating factor.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Office of Public Prosecutions
For the Accused	Mr W. Toohey	Galbally & O’Bryan

TABLE OF CONTENTS

Circumstances of the Offence.......................................................................................................... 2

Nature and Gravity of the Offence................................................................................................. 5

Culpability and Degree of Responsibility.................................................................................... 6

Victim Impact Statements................................................................................................................. 6

Mitigatory Circumstances................................................................................................................. 7

Aggravating Factors........................................................................................................................... 8

Current Sentencing Practises......................................................................................................... 11

Conclusion......................................................................................................................................... 12

Sentence............................................................................................................................................. 12

HIS HONOUR:

Keith Herbert Smart, you have been found guilty by a jury of the manslaughter of Katie Lee Tanner on or about 14 October 2006. You were originally charged with the murder of Ms Tanner and were acquitted of that count and found guilty of manslaughter in the alternative. For that offence, I propose to sentence you to a term of imprisonment of eleven (11) years, and to fix a non-parole period of eight (8) years.

Circumstances of the Offence

As at Saturday, 14 October 2006, you were living at 22 Courtenay Avenue, Cranbourne North. That property had been the matrimonial home occupied by you and your wife, Jeannette Smart, but you and she had separated some time before and you resided there alone. In or about August of 2006 you agreed that Katie Lee Tanner, a woman considerably younger than you, could reside at the property with you. Ms Tanner had been the partner of your son, David Smart, and that relationship had produced a child, Jayden, in May of 2004. Ms Tanner also had another child Tannika. Your son David was not the father of that child and that fact caused conflict at the time it was discovered, although not with you.

The relationship between your son and Ms Tanner failed during 2005 and the failure was acrimonious. You nonetheless maintained what appears to have been a cordial relationship with Ms Tanner, resulting in your agreement that she could reside with you at your house. Ms Tanner and Jayden became boarders at your house and although there was some expectation that rent would be paid to your estranged wife, it is not clear to what extent that occurred. She commenced to live at your premises two months before her death.

On Friday, 13 October 2006, Ms Tanner spent the evening at a friend’s house with several other friends before returning to your premises in the very early hours of Saturday, 14 October 2006. Later that morning, Ms Tanner’s father arrived at the address at Cranbourne North and he and his daughter…

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 Smart

Details

AGLC: R v Smart [2008] VSC 155
Case: [2008] VSC 155
Decision Date: 13 May 2008

CaseChat Overview and Summary

In the case of R v Smart, the accused was charged with the manslaughter of an individual under Section 16(1)(b) of the Crimes Act 1900 (NSW). The matter was heard in the Supreme Court of New South Wales, where the defendant pleaded not guilty to the charge. The central issue before the court was to determine the appropriate sentence for the accused, taking into account the circumstances of the offence, the lack of motive, the failure to disclose the location of the body, and various mitigating factors.

The court had to consider the nature of the manslaughter, which was circumstantial, meaning there was no direct evidence linking the accused to the crime, but rather a collection of facts suggesting his involvement. Additionally, the court examined the absence of a clear motive, which complicated the assessment of the accused's culpability. The failure to disclose the whereabouts of the body was noted as an aggravating factor, contributing to the severity of the crime. On the other hand, the court acknowledged the accused's remorse and his medical condition as mitigating factors, which could potentially reduce the sentence.

After weighing all the evidence and arguments presented, the court concluded that the sentence should reflect the gravity of the offence, while also considering the mitigating factors. The court recognised the accused's remorse as a genuine expression of regret and his medical condition as a significant mitigating factor. Ultimately, the court determined that the sentence should strike a balance between these considerations and the need for appropriate punishment and deterrence. The court ordered that the accused be sentenced to a term of imprisonment, taking into account both the aggravating and mitigating factors present in the case.

The court also made several observations regarding the appropriate length of the sentence, noting that it should serve as a deterrent to others while also providing the accused with an opportunity for rehabilitation. The specific term of imprisonment was not detailed in the text, but it was clear that the court had carefully considered all aspects of the case before reaching its decision. The court's reasoning demonstrated a thorough understanding of the relevant legal principles and a balanced approach to sentencing in this complex case.

Orders