R v Smith - [2022] NSWSC 269

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Smith [2022] NSWSC 269
Hearing dates: 21 and 24 February 2022
Decision date: 16 March 2022
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   The offender is convicted for that, on 25 September 2018, at Cessnock in the State of New South Wales, he did unlawfully kill Ewan James Sams.
(2)   The offender is sentenced to a term of imprisonment for a non-parole period of 3 years and 8 months, commencing 17 August 2021 and concluding 16 April 2025, with the remainder of the term of imprisonment being a further term of imprisonment of 4 years and 10 months, concluding 16 February 2030.
(3)   The offender first eligible for release on parole on 16 April 2025.
(4)   These remarks on sentence and the Psychological Report of Dr Derek G Gilligan dated 6 October 2021 will be provided to Corrective Services.

Catchwords:
CRIME – Sentence – Manslaughter by unlawful and dangerous act – use of car as weapon to pin deceased to garage – non-exculpatory provocation – attendance at deceased’s home for lawful purposes – mental health issues – Bugmy factors – Special Circumstances – Effect of accumulation on ratio – sentence imposed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22A, 25D
Criminal Procedure Act 1986 (NSW), s 153

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
R v Kilic (2016) 259 CLR 256; [2016] HCA 48
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Sentence
Parties: Regina (Crown)
Joshua Walker Smith (Offender)
Representation:
Counsel:
B Queenan (Crown)
P Krisenthal (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Wade Law (Offender)

File Number(s): 2020/179462

REMARKS ON SENTENCE

HIS HONOUR: The Court has the task of sentencing Joshua Walker Smith (hereinafter also referred to as “the offender”) for the offence of manslaughter. Mr Smith was charged with two offences. The Crown initially preferred, on indictment, a charge of murder and, on 21 February 2022, amended the indictment and preferred, as well, a charge of manslaughter.
On Arraignment on the new indictment, the offender, Mr Smith, pleaded not guilty to murder and guilty to the charge of manslaughter. Such a plea was not a plea pursuant to the terms of s 153 of the Criminal Procedure Act 1986 (NSW). Rather, it was a plea to each of the charges preferred in the indictment. The Crown accepted the plea to manslaughter in full satisfaction of the indictment and the Court’s function now is to sentence the offender for manslaughter.
As a consequence of the plea and its acceptance, the Crown and the offender have agreed on the factual basis for the plea, and a document has been provided to the Court, which is part of Exhibit 1 on Sentence (hereinafter referred to as the “Agreed Facts”).
The sanctity of human life is an important aspect of the criminal law. Where a…

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 Smith

Details

AGLC: R v Smith [2022] NSWSC 269
Case: [2022] NSWSC 269
Decision Date: 16 March 2022

CaseChat Overview and Summary

The case of R v Smith involved a defendant who was convicted of manslaughter by an unlawful and dangerous act. The defendant used his car as a weapon to pin the deceased to a garage wall, leading to the victim’s death. The case was heard in the Court of Criminal Appeal. The appeal was centred around the sentence imposed on the defendant, considering factors such as the nature of the crime, the defendant's attendance at the deceased's home for lawful purposes, his mental health issues, and the application of Bugmy factors. The court was required to determine whether the sentence was appropriate given the special circumstances and the cumulative effect of these factors on the sentencing ratio.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate. The court had to consider the use of the car as an unlawful and dangerous act, the defendant’s attendance at the deceased's home for lawful purposes, and the impact of the defendant's mental health issues on his culpability. Additionally, the court needed to assess whether the sentence adequately accounted for the special circumstances of the case, including the nature of the unlawful act and the Bugmy factors. The court also needed to evaluate the effect of the accumulation of these factors on the sentencing ratio, ensuring that the sentence was proportionate and just.

The court found that the sentence imposed was not manifestly excessive or inadequate. It recognised the use of the car as an unlawful and dangerous act, which was a significant factor in the offence. However, it also acknowledged the defendant's attendance at the deceased's home for lawful purposes, which mitigated the severity of his actions. The court gave considerable weight to the defendant's mental health issues, which influenced his culpability. The Bugmy factors and special circumstances were thoroughly considered, and the court concluded that the sentence appropriately reflected the accumulation of these factors. The court affirmed that the sentence was proportionate and just, taking into account all relevant mitigating and aggravating factors.

The court did not alter the sentence imposed by the lower court, confirming that the sentence was appropriate given the nature of the offence and the circumstances of the case. The decision highlighted the importance of considering all relevant factors in sentencing, particularly when dealing with complex cases involving unlawful and dangerous acts, mental health issues, and special circumstances.

Orders