R v Smit, Smit and Tarrant

[2005] NSWSC 1277

CITATION:	R v Smit, Smit and Tarrant [2005] NSWSC 1277 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16,16,17,18,22,23,25,29, 30,31 August 2005 1,2,5 September 2005 26 October 2005
JUDGMENT DATE :	8 December 2005
JUDGMENT OF:	Latham J at 1
DECISION:	Steven Smit on the offence of murder sentenced to 16 years' imprisonment to date from 25 November 2001 expiring 24 November 2017. Non-parole period of 12 years to date from 25 November 2001 expiring 24 November 2013. ; Shiree Smit on the offence of murder sentenced to 16 years' imprisonment to date from 31 August 2001 expiring 30 August 2017. Non-parole period of 12 years to date from 31 August 2001, expiring 30 August 2013.; Donna Tarrant, on the offence of murder sentenced to 16 years' imprisonment to date from 31 August 2001 to expire 30 August 2017. Non-parole period of 12 years to date from 31 August 2001, expiring 30 August 2013.

CATCHWORDS:	Sentence - Murder - Joint criminal enterprise - Resentencing after successful appeal and retrial
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	McL v R (2000) 203 CLR 452 R v MM [2002] NSWCCA 431 R v Fraser (2005) NSWCCA 77
PARTIES:	Crown - Regina Offender - Shiree Anne Smit Offender - Steven Charles Smit Offender - Donna Claire Tarrant
FILE NUMBER(S):	SC 2002/137; 2002/138; 2002/139
COUNSEL:	Crown - L. Lugo Offender (SA Smit) Andrew Haesler SC Offender (SC Smit) M Thangaraj/Mr Matalini Offender (DC Tarrant) P Hamill SC
SOLICITORS:	Crown - S Kavanagh Offender (SA Smit) SE O'Connor Offender (SC Smit) SE O'Connor Offender (DC Tarrant) SE O'Connor

LOWER COURT JURISDICTION:
LOWER COURT FILE NUMBER(S):	70058/02

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

8 December 2005

2002/137 R v SHIREE ANNE SMIT
2002/138 R v STEVEN CHARLES SMIT
2002/139 R v DONNA CLAIRE TARRANT

SENTENCE

1 LATHAM J: On 5 September 2005, each of the offenders, Steven Charles Smit, Shiree Anne Smit and Donna Claire Tarrant were found guilty by a jury of the charge of murder. The victim of the offence, Craig Patrick Collins, was known to all three offenders. Donna Tarrant shared the premises at 80 Camp Street Katoomba with the victim. Steven Smit and Shiree Smit, who are husband and wife, also lived in Katoomba and knew Mr Collins as a regular patron of various local hotels, where they also regularly consumed alcohol. The offenders were together with Mr Collins at the Camp Street premises in the evening of 28 August 2001.

2 Mr Collins’ body was found on Thursday 30 August 2001 in the kitchen of his premises. The body was naked and had been wrapped in two blankets, along with a cricket bat and a number of articles of clothing. The principal cause of death was blunt trauma to the neck which had resulted in a fracture of the voice box and subsequent suffocation. Abrasions to both sides of the neck were consistent with the edge of the cricket bat having struck the voice box with considerable force. In addition, there were two stab wounds to the back of the head, at the base of the skull, which were fairly shallow in nature. There was a stab wound to the right side of the front of the chest, approximately two centimetres long. That wound penetrated through to the wall of the rib cage and sustained minor damage to the right lung. There were also a number of stab wounds on the back of the body, including five on the lower part of the left-hand side of the back just above the buttock and two to the right side of the back. One of the wounds on the left-hand side of the back above the buttock area penetrated the pelvic area and damaged a large vein in that region. A fairly extensive amount of bruising and abrasions were located on the legs, on the arms and hand and on the front and back of the chest area. Scratching on the back of the body included a fairly long scratch down the centre of the back, consistent with the body having been dragged from the lounge room of the premises into the kitchen. At the time of death, Mr Collins was approximately 167 centimetres tall and weighed 41 kilograms.

3 A large amount of blood in the lounge room of the premises and in particular on the architraves of a door and an adjacent wall, was consistent with a sustained and vicious assault on Mr Collins in that room. Three of four knives smeared with blood, consistent with the DNA of the victim, were found in the vicinity of a lounge and lounge chair. The dimensions of the stab wounds to Mr Collins’ body were consistent with the use of any one or more of those three knives in the course of the assault upon him.

4 The Crown case at trial, which the jury accepted, was that each of the offenders was a party to a joint criminal enterprise to kill or inflict grievous bodily harm on Mr Collins. For sentencing purposes, I cannot be satisfied beyond reasonable doubt that there was an intention to kill, formed by each of the participants to the agreement. Nor did the Crown press for that finding. The evidence against each offender in support of the existence of the agreement and their respective participation in it, is outlined in greater detail below. Let me record at the outset that, after reviewing the respective case against each offender, I am unable to determine to the requisite standard which one of the offenders struck the fatal blow to Mr Collins’ neck. Nor is it possible to attribute a substantially greater role in the assaults to any one offender. There is evidence which points in different directions, but the fact remains that there is no reliable evidence allowing such conclusions to be reached beyond reasonable doubt. In the light of the evidence against each offender and, given the number and distribution of the various injuries to Mr Collins, I am nonetheless satisfied beyond reasonable doubt that all three offenders inflicted injury upon him, to some extent.

5 Nor is it possible to determine, with any certainty, what triggered the assaults upon Mr Collins. Mr Smit provided information to the police which suggested that he believed that Mr Collins was about to rape or was raping Ms Tarrant when he, Mr Smit, went to Ms Tarrant’s assistance. Given the implausibility of several aspects of Mr Smit’s explanation to police in the course of his record of interview, I am unable to conclude that Mr Smit’s belief was founded in fact. However, I accept, for the reasons which appear below, that Mr Smit entertained such a belief and that his perception of an assault upon Ms Tarrant prompted an assault upon Mr Collins in which all three offenders joined and which was out of all proportion to the circumstances, culminating in Mr Collins’ death. Mrs Smit gave evidence at trial in which she claimed that Mr Collins was doing no more than standing in the kitchen, behind Ms Tarrant, attempting to kiss and cuddle her. According to Mrs Smit, Ms Tarrant became annoyed and both women left the premises, returning only after Mr Collins had been killed. The jury’s rejection of her evidence suggests that this account of Mr Collins’ behaviour is suspect. Accepting that it may have occurred, it cannot explain the severity of the assaults. Clearly, the attack was sudden, unplanned and unpremeditated.

6 When the realisation dawned upon the offenders that Mr Collins had died as a result of the attack upon him, it would appear that Mrs Smit left the premises to seek the assistance of an acquaintance, Mr Ranse, in the disposal of the body. Mr Smit, on his own admission, remained in the premises for some hours, waiting for the return of his wife. Whilst there is no reliable evidence relating to Ms Tarrant’s whereabouts immediately after Mr Collins’ death, it is clear that she spoke to Mr Ranse some time after 29 August, in the hope that he would assist her in establishing an alibi for the relevant period of time.

7 In summary, this was a spontaneous, senseless, brutal and callous assault on a seemingly harmless man, who had offered hospitality to the offenders. The degree of violence was substantial and there was an attempt, albeit short-lived, to conceal the offence and dispose of the body.

8 The sentencing exercise is complicated to some extent by the fact that this is the second occasion on which all three offenders have been found guilty of the murder of Mr Collins. In March 2003, they were convicted after a trial before Hulme J and sentenced on 2 October 2003. Hulme J made certain findings of fact which led to the imposition of identical sentences upon Mr and Mrs Smit, but a lesser sentence on Ms Tarrant. Following a successful appeal against conviction, the trial re-commenced before me on 17 August 2005. All counsel, including the Crown, submitted that there were no circumstances warranting the imposition of a longer sentence or non-parole period than that imposed by Hulme J, in respect of each offender. However, counsel for each offender submitted that there were at least subjective circumstances justifying a lesser sentence than that imposed by Hulme J. The Crown resisted those submissions.

9 The departure point in any consideration of re-sentencing after a successful appeal is R v Gilmore (1979) 1 A Crim R 416. The matters of policy underlying the principle that an accused should ordinarily not receive a longer sentence, or non-parole period than those received at the first trial were explored at length by Street CJ. It was not until R v Bedford (1986) 5 NSWLR 711 that the qualification to that principle was made explicit, namely that where circumstances justify the imposition of a longer sentence, a sentencing judge is bound to give effect to his/her assessment. Those circumstances may include a manifestly lenient sentence imposed at the first trial, more serious criminality established by the evidence at the second trial, and the offender’s subjective case appearing less favourable at the second trial.

10 In McL v R (2000) 203 CLR 452, Gleeson CJ, Gauldron and Callinan JJ referred to Gilmore with approval. However, the existence of an independent sentencing discretion was recognised, in so far as the weight to be accorded to the consideration outlined in Gilmore was said to be “a matter relevant to the exercise of discretion by a judge sentencing the appellant” after a second trial. Similarly, McHugh, Gummow and Hayne JJ referred to the principle as one which applies “ordinarily, but not invariably”. Kirby J also expressed the principle as a general one, which admits of exceptions, including where “the facts as they appear at the time of re-sentence are significantly different from those upon which the first sentence was based”.

11 Levine J in R v MM [2002] NSWCCA 431 confirmed that there was no inflexible rule, rather the exercise of an independent sentencing discretion allowed for an increase in sentence, where “good reasons” for that increase were exposed by the sentencing judge.

12 Bearing these principles in mind, I turn to the evidence at trial. The forensic evidence against Mr Smit included a pair of joggers, a pair of tracksuit pants and a tee-shirt retrieved from Mr and Mrs Smit’s home, said to have been worn by him or belonging to him. All three items were stained with a quantity of blood consistent with that of the victim. The keys to Mr Collins’ flat were also found at the home of Mr and Mrs Smit. The distribution of the blood stains on the items of clothing and the shoes was consistent with blood having been sprayed or splattered from wounds inflicted on Mr Collins at the time of the infliction of those wounds. Mr Smit undertook a record of interview with the police on 31 August 2001. At first he told police that he had visited Mr Collins in the company of his wife and Ms Tarrant some 10 to 14 days prior to the interview. He then acknowledged that he had been to the premises on the Sunday prior to the interview. Mr Smit said that on the latter occasion he and his wife were at the premises with Mr Collins and Ms Tarrant, playing music, when the occupant of the flat upstairs came to request that they turn the music down. Mr Smit said he was “pretty drunk” and that he had fallen asleep, that he did not know what happened and that he woke up on the couch and left. He said that at that time he was alone and when he arrived home his wife was there. He said that he saw Mr Collins when he left and he was “lying on the floor … he didn’t look too healthy”. At that point Mr Smit told police he would be frank with them. He explained that during the evening he (Mr Collins) “was trying to, the other girl not Shiree, he was trying to rape her”. Mr Smit said that he “pulled him up a bit on that. Didn’t kill him.” He went on to say that he had punched him a couple of times, dragged him off Ms Tarrant, and that Mr Collins was wearing nothing more than a shirt at that time. He went on to say Mr Collins admitted that he was trying to rape Ms Tarrant and that thereafter Mr Collins tried to hit Mr Smit with a cricket bat. Mr Smit said he was trying to grab the cricket bat, then he let Mr Collins go and Mr Collins came back at him with the cricket bat. Eventually Mr Smit took the cricket bat from Mr Collins and tossed it aside. According to Mr Smit’s account, Mr Collins then attempted to stab Ms Tarrant, although he did not see from where Mr Collins obtained the knife. Ms Tarrant was said to be “freaking out” at this time. Mr Smit said that he tried to take the knife from Mr Collins and that Mr Colins and Ms Tarrant appeared to be wrestling with each other. Thereafter Mr Smit says that he did not know what occurred, but at some point he realised Mr Collins was dead and he moved Mr Collins into the kitchen and placed the cricket bat next to the body within the blankets. He said that he thought someone had gone for help and that he waited approximately eight or nine hours after he had moved the body, before leaving the premises. When Mr Smit arrived home he saw his wife and Ms Tarrant, but had no conversation with either of them as to the events that evening.

13 One only has to read the record of interview in the light of the forensic evidence against Mr Smit to reach the conclusion that his account to police is substantially lacking in credibility. It is not surprising that the jury rejected Mr Smit’s denial of having inflicted any serious injury upon Mr Collins. Even were I to accept Mr Smit’s own admission, in respect of his contact with the cricket bat and with a knife, said to be produced by Mr Collins, there is no evidence which would allow me to conclude beyond reasonable doubt which of the weapons used in the assault upon Mr Collins was, in fact, wielded by Mr Smit. I am satisfied beyond reasonable doubt that Mr Smit was in reasonably close proximity to Mr Collins, either at the time Mr Smit was inflicting wounds upon Mr Collins, or whilst either Ms Tarrant and/or Mrs Smit were inflicting wounds upon Mr Collins. That much seems clear from the blood splatter found on Mr Smit’s clothing.

14 A significant departure in the conduct of the trial before me from that conducted before Hulme J was Mr Smit’s acknowledgement from the outset of the trial that he bore some responsibility for Mr Collins’ death, albeit that responsibility fell short of responsibility for murder. A substantial body of evidence was placed before the jury at trial, tending to establish that Mr Smit was suffering the effects of a drug-induced psychosis on the day of Mr Collins’ death. The jury’s verdict against Mr Smit signifies the rejection of that evidence, in so far as it failed to satisfy the jury that the psychosis was operative at the time of the assault upon Mr Collins, or that it was of such a gravity that it was capable of reducing Mr Smit’s culpability from murder to manslaughter. Similarly, the jury rejected Mr Smit’s intoxication due to alcohol and drugs as a relevant factor in the formation of the requisite intent for the offence of murder.

15 As indicated at the outset of these remarks on sentence, I accept that a perception on Mr Smit’s part that Mr Collins was behaving inappropriately towards Ms Tarrant provoked Mr Smit to assault Mr Collins. I also accept that Mr Smit’s capacity to exercise judgment and restraint was compromised to a degree by his heavy consumption of amphetamines and other drugs in the weeks leading up to the commission of the offence. Whilst there is documented evidence of Mr Smit’s irrational behaviour during that time, I am unable to determine to what extent Mr Smit was affected by amphetamines or other drugs on the evening in question, there being no reliable evidence of the consumption of those drugs in the hours preceding the offence. To the extent that Mr Smit was affected by drugs and/or alcohol at the time of the assaults upon Mr Collins, it may explain the commission of the offence, but does not operate to mitigate Mr Smit’s liability.

16 The case against Mrs Smit consisted of a fingerprint impression belonging to Mrs Smit on one of the knives bearing the blood of the victim. That knife was found on a chair in the victim’s lounge room. In addition, the evidence from Mr Ranse was that at the time Mrs Smit approached him seeking his help to dispose of the body, she said “both of us, but mainly Steve” had killed Mr Collins “with a cricket bat”. (I pause to observe that this statement was not admissible against Mr Smit.) That conversation was denied by Mrs Smit at trial. It is clear that the jury accepted Mr Ranse and his account of the conversation with Mrs Smit. The jury also patently rejected Mrs Smit’s evidence at trial which sought to explain how her fingerprint came to be on the relevant knife. That explanation was that following Mr Collins’ inappropriate behaviour towards Ms Tarrant, both Mrs Smit and Ms Tarrant left the premises and returned some hours later to find the lounge room covered in blood and nothing but the sound of the shower coming from the adjacent bathroom. Mrs Smit claimed to have picked up the knife which was lying on the floor, but was not able to explain why she did that. She saw Ms Tarrant “go to touch a cricket bat that was there with blood all over it”. She saw the body of Mr Collins in the kitchen and drew Ms Tarrant’s attention to it. According to Mrs Smit they both left the premises and agreed to meet at the Carrington Hotel in about an hour’s time. It is to be noted that Mrs Smit did not give evidence at the trial before Hulme J, although the jury’s rejection of her evidence does not substantially add anything to the Crown case against her. The jury was directed that they must be satisfied beyond reasonable doubt that Mrs Smit’s print was placed on the knife at the time of the assaults upon Mr Collins, before they could use it towards proof of the Crown case. On the basis of this evidence, I am satisfied beyond reasonable doubt that Mrs Smit inflicted some injuries upon Mr Collins, but I am unable to conclude to what extent Mrs Smit was directly responsible for the infliction of the various wounds upon Mr Collins’ body.

17 The case against Ms Tarrant consisted of a partial palm print on the blade of the cricket bat, which was deposited by the transfer of blood from the hand to the cricket bat. In addition, Ms Tarrant gave a record of interview to police on 1 September 2001, in which she denied any knowledge of the matter and denied any maltreatment at the hands of Mr Collins. Ms Tarrant said she had last seen Mr Collins about a week prior at the Katoomba Hotel. Ms Tarrant admitted that she had at some stage shared the premises with Mr Collins, but that she had last stayed there or lived there some three or four months ago. She said that she had consumed amphetamines whilst staying at Mr Collins’ house. The Crown relied upon the lies told by Ms Tarrant in her record of interview as demonstrating a consciousness of guilt. The jury were directed that in order to use the evidence of Ms Tarrant’s palm print on the cricket bat towards proof of the charge against her, they must be satisfied beyond reasonable doubt that the print was deposited on the bat at the time of the assaults upon Mr Collins. In my view, the jury’s verdict reflects satisfaction to that standard. Accordingly, both Ms Tarrant’s account to police and Mrs Smit’s evidence in relation to Ms Tarrant’s role in the events of that evening were rejected by the jury. I am therefore satisfied beyond reasonable doubt that Ms Tarrant also inflicted some injuries upon Mr Collins, although I am unable to determine to what degree.

18 It is appropriate that I note the findings of fact made by Hulme J to the extent that they depart from the findings I have made above. In relation to Ms Tarrant, Hulme J found that “there was nothing …. to show that her role was more than at the lowest level of participation”. As for Mrs Smit, Hulme J found that she “had some active involvement going appreciably beyond mere presence and a minimum level of encouragement or assistance”. Hulme J found that Mr Smit “also had some active involvement going appreciably beyond mere presence and a minimum level of encouragement.” Hulme J went on to say that “I have no doubt also that violence was at the hands of one or more of the prisoners. However, the evidence against the prisoners individually does not permit me to make findings more adverse to them than I have done”. Part of the explanation for Hulme J’s findings in the terms cited above lies in the manner in which the Crown case was left to the jury at the first trial. Not only was the jury directed on joint criminal enterprise, but they were also directed on the basis that any one of them could be convicted if the jury found that they were present and intentionally encouraging or assisting a principal offender. It was, therefore, at least theoretically available to Hulme J to find that Ms Tarrant was not “a principal offender”, but that she was present and intentionally encouraging or assisting someone else. The restriction of the Crown case at the second trial to one of joint criminal enterprise allows the verdicts of the jury to be interpreted more narrowly than was the case before Hulme J. In any event, as I have attempted to demonstrate above, the objective evidence at trial does not permit a finding of fact beyond reasonable doubt that there was a “principal offender”.

19 It follows that I do not feel constrained by the considerations explored in Gilmore Bedford and McL v the Queen to impose sentences in identical terms to those imposed by Hulme J. I approach the sentencing exercise consistent with the findings of fact that I have made, bearing in mind that the subjective case in respect of each offender is somewhat more favourable than that presented to Hulme J. It is to those respective subjective matters that I now turn.

20 Mr Smit was born on 19 July 1970 and was raised in a loving and supportive family environment. His father was and remains a pastor and his parents have done everything in their power to assist Mr Smit in the latter years of what was undoubtedly a serious drug addiction. Mr Smit is said to be of above average intelligence and left school in Year 11. He took up an apprenticeship as a motor mechanic, but failed to complete it. He has been in employment from time to time, largely of an unskilled nature. Mr Smit’s adult life has been marred by the abuse of drugs, including cocaine, amphetamines and excessive consumption of alcohol. He has also been addicted to both rohypnol and methadone. In the months prior to the commission of the offence, Mr Smit was reportedly withdrawing from methadone, but had turned instead to a cocktail of alcohol, rohypnol and amphetamines. The evidence at trial which was tendered for the purposes of sentence established that on 5 July 2001 Mr Smit was observed by police and by officers from the Department of Community Services to be exhibiting a level of paranoia, irrationality and aggression. The events of 5 July centred around an attempt by DOCs officers to intervene on behalf of Mr and Mrs Smit’s children. A number of police officers who were also involved in the investigation of Mr Collins’ murder were present on 5 July and made independent observations of Mr Smit’s behaviour.

21 In the course of the trial, Associate Professor Hayes of the University of Sydney gave evidence of Mr Smit’s history of drug abuse, obtained largely from Mr Smit himself. Professor Hayes also had access to the documents relating to the events of 5 July. Professor Hayes records that Mr Smit had a severe drug problem by the age of 18 or 19 years, including abuse of cocaine, speed and alcohol. At age 21 he was imprisoned for possession and supply of cannabis. He later became addicted to heroin and rohypnol and tried unsuccessfully to detoxify and rehabilitate himself. Mr Smit and Mrs Smit married in 1997, at which time Mr Smit was drug free apart from methadone and abuse of rohypnol. In that period he was stable and in employment.

22 According to Professor Hayes’ report, Mr Smit decided to come off methadone and remain self-medicated on rohypnol. However, he was unable to obtain rohypnol and commenced using amphetamine. Mr Smit himself offered the opinion that he became psychotic and delusional. He was reportedly in this state on 5 July 2001. I have already observed that the jury rejected Professor Hayes’ evidence and her opinion that Mr Smit was suffering from a drug induced psychosis at the time of the offence for the purposes of reducing the charge of murder to one of manslaughter. That evidence was not placed before the jury in the trial before Hulme J and only became relevant on the question of sentence. Hulme J accepted Professor Hayes’ opinion that Mr Smit’s prognosis was good, provided he remained abstinent and that his prospects of rehabilitation depended largely on his resolve in that regard. Importantly, Hulme J found that there was no evidence of contrition, although the inference was drawn that Mr Smit appreciated the consequences of his previous lifestyle.

23 In the light of Mr Smit’s acknowledgement through his counsel at the beginning of the second trial, that he accepted his liability for the offence of manslaughter, there is direct evidence of some contrition before me which was not available to Hulme J. Moreover, Mr Smit gave evidence in the course of the sentencing proceedings. He stated that the death of Mr Collins “was a tragedy and he shouldn’t have died and after hearing Mr Collins’ impact statement, we can all see why he shouldn’t have died.” Mr Smit expressed shame for his part in Mr Collins’ death and appeared to display genuine empathy for the grief suffered by Mr Collins’ family. Mr Smit confirmed that the victim’s death had forced him to appraise his life and the direction it was taking. He expressed resolve not to resume his former lifestyle. There was evidence of the completion of a number of drug and alcohol courses, both while on remand and since he was sentenced on the first occasion. Mr Smit was to undertake a violence prevention course at Long Bay shortly prior to the appeal against the conviction at the first trial. Following his reconviction, Mr Smit is to resume the violence prevention program at the Special Care Unit at Long Bay and expressed an interest in participating in the Adult Mentor Program for young inmates.

24 A Mr David Pettit, the Anglican Chaplain at the Metropolitan Remand and Reception Centre at Silverwater came to know Mr Smit in December of 2004. Mr Smit impressed Mr Pettit by his willingness to assist other inmates and by his appointment as an official prisoner delegate. Mr Smit’s mother gave evidence of the dramatic change in her son’s personality, lifestyle and attitude since his arrest. Much of the information contained in the pre-sentence report of 2 June 2003 (Exhibit 6) was confirmed by a more detailed and more current report under the hand of Ms Duffy (Exhibit 8). Mr Smit accepts that his relationship with his wife is over, but expressed a strong desire to resume a positive role in fathering the two children of that relationship. Those children are in the custody of their maternal grandmother.

25 I accept that the passage of time has allowed Mr Smit’s prospects of rehabilitation to be demonstrated in a more substantial respect than was the case before Hulme J. It is also submitted that there is real remorse and contrition, which should result in an appreciable reduction in the sentence imposed in October 2003. I return to this submission below, in the context of parity.

26 Mr Smit’s prior criminal history contains a number of offences consistent with his drug abuse, namely driving with a prescribed concentration of alcohol, property offences and offences involving the possession, supply and administration of prohibited drugs. He has also been convicted of possession of an unauthorised and unregistered firearm. He has one prior conviction for an offence of assault occasioning actual bodily harm recorded in 1994, for which he received two years’ suspended sentence. The longest term of imprisonment served by Mr Smit prior to his incarceration for this offence was one of six months’ imprisonment.

27 Turning to the subjective case on behalf of Mrs Smit, her progress since her incarceration was the subject of evidence from Babette Smith, an official visitor to Mullawa prison. According to Ms Smith, Mrs Smit has developed self-discipline and a calm, stoic attitude since coming into custody. Ms Smit had changed from a verbally aggressive young woman to a trustworthy and responsible inmate within the prison system. Mrs Smit has completed a diploma in aromatherapy and intends pursuing that study at a tertiary level so that she might be gainfully employed upon her release. Mrs Smit is understandably distressed by the absence of her children, but has remained committed to regular contact with them by way of video link or personal visits when they are able to travel from Dubbo in the company of their grandmother. Ms Smith’s opinion was supported by a reference from the Anglican Chaplain at Mullawa and by the Anglican Chaplain at Roseville College. Mrs Smit’s mother provided a letter to the Court which complemented the evidence she had given before Hulme J on sentence. The case notes relating to Mrs Smit produced by the Department of Corrective Services notes the offender’s involvement in tertiary education studies, her involvement with a pilot program aiming to assist inmates with children to maintain family identity, her employment as a clerk for the Manager of Industries, exercising substantial responsibility in a trusted position, and her active role in the Inmate Development Committee, fund raising activities on the part of inmates and voluntary tutoring programs designed to assist other inmates with learning difficulties.

28 In terms of Mrs Smit’s earlier history, she reportedly left school during Year 11 and worked for approximately three years before falling pregnant and becoming engaged. Tragically Mrs Smit’s fiancé was killed in a car accident when she was five months pregnant. Shortly thereafter the offender’s grandfather died and her grandmother became a paraplegic. Within 18 months of these events, Mrs Smit commenced to use illicit drugs. That use continued unabated until she went into custody following the instant offence. Once again Mrs Smit’s antecedents include property offences and minor traffic offences which appear to reflect her unstable lifestyle. She is presently 35 years of age. Her first recorded conviction was in 1982 and her longest period of imprisonment prior to this matter was for a period of one month.

29 A report under the hand of Dr Nielssen, which was also available before Hulme J, records Mrs Smit’s drug history as related by her to Dr Nielssen. Mrs Smit said she was a long term user of amphetamine, that she had become addicted to heroin and thence methadone and benzodiazepines. According to Mrs Smit’s account to Dr Nielssen, she had been prescribed methadone and rohypnol in the months prior to Mr Collins’ death. She reported a previous episode of a drug induced psychosis, although she claimed no relevant impairment of memory of the events surrounding Mr Collins’ death and continued to assert her innocence. Her relationship with Mr Smit was said to be based entirely upon their mutual abuse of drugs. In all, Mrs Smit has four children, all of whom are in the permanent care of her parents.

30 As is the case with Mr Smit, Mrs Smit’s prognosis and her prospects of rehabilitation are directly linked to her ability to remain drug free. Given the passage of time and Mrs Smit’s progress within the custodial setting, her prospects of rehabilitation have been more cogently demonstrated on this occasion than they were before Hulme J.

31 Ms Tarrant is presently 33 years of age, having been born in Katoomba on 24 August 1972. Her parents separated when Ms Tarrant was 12 years of age. Her mother remarried. Initially Ms Tarrant stayed with her mother, but then moved to live with her father who became violent towards her, reportedly breaking her leg and fracturing her cheekbone on one occasion. At that point Ms Tarrant left home and moved into a youth refuge in Katoomba at the age of 13. Ms Tarrant was placed in a number of institutions by the Department of Community Services. When she was 15 years old she returned to live with her mother because she was pregnant at the time. Ms Tarrant’s daughter, now 18 years of age, lived with Ms Tarrant until 1996. Ms Tarrant’s daughter now has a baby son and lives with her partner and his family in Bathurst. Ms Tarrant has had recent contact with her daughter and grandchild. By the end of 1995, Ms Tarrant had five children, all under the age of 8 years.

32 On 27 May 1996 the youngest of Ms Tarrant’s children died from sudden infant death syndrome at the age of seven and a half months. In the wake of that event, Ms Tarrant began drinking alcohol and abusing drugs to the point where the Department of Community Services intervened and offered to mind the children temporarily whilst she recovered. In fact, the children were separated from each other and fostered to various homes. Ms Tarrant insisted on access visits and tried to regain custody of her children, but was unable to comply with the conditions imposed by DOCs, namely that she undergo residential rehabilitation at her own cost.

33 In 1997 Ms Tarrant signed custody of the children over to their respective fathers on the recommendation of the Department of Community Services. She lost all contact with her children and has only recently regained contact with a number of them. Following removal of her children from her care, Ms Tarrant met up with a drug user and commenced a relationship with him that exacerbated her own drug use. In December 1998 Ms Tarrant gave birth to a son who was taken from her by the Department of Community Services within 24 hours of his birth. Ms Tarrant claimed that she had been drug free since she discovered she was pregnant and that she twice attempted to regain custody of that child. She gave up and returned to drug abuse. That child is presently in foster care and is visiting Ms Tarrant regularly.

34 Ms Tarrant’s drug abuse commenced with cannabis at 13 and 14 years of age. She then refrained from illegal drug use for some years. At the age of 16 she began abusing amphetamines on an occasional basis. Her poly substance abuse (including alcohol, amphetamines and heroin) commenced following the death of her child. Ms Tarrant was addicted to heroin from about 1996 until approximately a year before her arrest for the present matter. At that time, she had been on a methadone programme, but decided to cease methadone usage without clinical supervision. At the time of the offence she said she was using amphetamines. She continues to assert her innocence and maintains that she was not present when Mr Collins was murdered. There is, therefore, no contrition on Ms Tarrant’s part.

35 Ms Tarrant’s first recorded offence in March of 1987 was one of malicious injury. Her antecedents include offences of assault, aggravated assault, resist arrest and a number of property offences, together with offences of possession of a prohibited drug. She has been convicted of unlawful wounding, but was placed on a good behaviour bond for a period of 12 months. The longest period of time she has spent in custody is six months commencing on 31 August 2001 for a break enter and steal offence.

36 Ms Tarrant has been drug free since coming into custody. She has undertaken educational courses and is employed within the prison industry. Her primary motivation is her reconciliation with her children and her desire to be strongly independent and self-supporting. References from Mrs Smith, the Anglican Chaplain at Roseville College and the Anglican Chaplain at Mullawa describe Ms Tarrant as a quiet, gentle, helpful and co-operative inmate who has been recommended for a reduction in her classification in recognition of her positive contribution and her behaviour whilst at Mullawa.

37 This material establishes prospects of rehabilitation more favourable than were apparent before Hulme J. It must be said however that, as in the cases of Mr and Mrs Smit, those prospects are wholly dependent on this offender’s capacity to refrain from the abuse of alcohol and drugs upon her release into the community.

38 In respect of each of the objective and subjective factors to which I have referred above, I have taken into account the terms of s 21A of the Crimes (Sentencing Procedure) Act 1999. None of the offenders is entitled to the mitigation extended by reason of the absence of any prior convictions. Obviously the offence was committed in company, although I have already noted the absence of any planning or pre-meditation. I do not accept that the offenders were provoked by any action on the part of Mr Collins that might justify the severity of the assaults visited upon him. I accept that each of the offenders is unlikely to commit an offence of this gravity at any time in the future and I also accept that each offender has good prospects of rehabilitation.

39 In my view the basis of the jury’s verdict and the objective gravity of the offence warrant the imposition of the same sentence and non-parole period in respect of each offender. I am conscious of the fact that such a finding will result in a sentence in respect of Ms Tarrant which exceeds that imposed at first instance. In contemplating that result, I have had regard to the important policy considerations underlying the application of the principles relating to re-sentencing.

40 I am also conscious of the submission made by the offenders’ respective counsel on the issue of parity. Those submissions were, not surprisingly, impossible to reconcile as between each offender. Mr Smit’s contrition was said to set him apart from his co-offenders. It must be recognised, however, that his record of interview constituted powerful evidence against him; once admitted, no jury could, in my view, construe it as other than direct evidence of Mr Smit’s part in the assaults upon Mr Collins. It was all the more eloquent of his guilt for the fanciful version of the struggle with Mr Collins, followed by a period of sleep and waking to the presence of a body in a blood-soaked living room. To accept that Mr Smit is now remorseful is one thing; to place significant weight upon that remorse after the jury has found Mr Smit guilty of murder rather than manslaughter is another. In the result, I cannot sensibly differentiate between the offenders for the purposes of reflecting the principles of punishment, retribution and general deterrence in both the head sentence and the non-parole period of the sentences, even after allowance is made for each subjective case.

41 I have had regard to the victim impact statements tendered on behalf of Mr Collins’ father, sister and brother-in-law. It must be acknowledged that the experience of enduring another trial and all the uncertainty which that trial brings has imposed a considerable burden on Mr Collins’ close relatives. No judge of this Court who regularly sits in the criminal jurisdiction could fail to be moved by the long term effects experienced by family members arising out of the violent death of one of their number. Sentencing must however take place according to law and expressions of personal vengeance play no part in that sentencing function. Every sentencing exercise calls for the reconciliation of tensions between the objective and subjective circumstances.

42 As to the question of special circumstances, it is “received doctrine that the mere fact that a matter is capable of amounting to special circumstances does not mean that a finding and application in favour of an offender must be made”: R v Fraser (2005) NSWCCA 77 at par 48. Ultimately I have determined that the parole period provided by the usual statutory proportion is sufficient in the case of each offender to allow for a suitable period of supervision following release to the community. The proposed non-parole periods in each case are the least which can be imposed, in my view, consistent with the objective gravity of the offence.

43 In addition, it must be remembered that s 54A of the Crimes (Sentencing Procedure) Act 1999 does not apply in the circumstances of this case. For offences of this nature committed after 1 February 2003, one would expect to see a significant increase in the penalties imposed for the offence of murder. The offenders, however, must receive the benefit of the law as it applied to offences committed pre February 2003.

44 Each of the offenders have remained in custody since they were sentenced by Hulme J. Accordingly, I propose to adopt the same starting point for each of the sentences and nothing has been addressed to me to the contrary. Mr Smit, on the offence of murder, you are convicted. I impose a term of imprisonment of 16 years to date from 25 November 2001, to expire 24 November 2017. I impose a non-parole period of 12 years to date from 25 November 2001 to expire 24 November 2013.

45 Mrs Smit, on the offence of murder, you are convicted. I sentence you to a term of 16 years’ imprisonment to date from 31 August 2001 to expire 30 August 2017. I impose a non-parole period of 12 years to date from 31 August 2001, expiring 30 August 2013.

46 Ms Tarrant, on the offence of murder, you are convicted. I sentence you to a term of 16 years imprisonment to date from 31 August 2001 to expire 30 August 2017. I fix a non-parole period of 12 years to date from 31 August 2001, expiring 30 August 2013.

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