R v Smith - [2021] NSWSC 825

Supreme Court

New South Wales

Medium Neutral Citation: R v Smith [2021] NSWSC 825
Hearing dates: 17 June 2021
Date of orders: 15 July 2021
Decision date: 15 July 2021
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
Sentence Justin Shawn John Smith to imprisonment for 10 years and 8 months commencing on 5 January 2019 and expiring on 4 September 2029 with a non-parole period of 8 years expiring on 4 January 2027.

Catchwords:
CRIMINAL LAW – sentence – jury verdict following trial for murder – verdict of guilty of assault occasioning death whilst intoxicated – where victim died as the result of stab wounds inflicted by offender following long period of mutual drinking – where offender perceived threat from victim and armed himself with a knife – where jury verdict excluded finding of death by reason of excessive self-defence or that the stabbing was unlawful and dangerous – alternative verdict
CRIMINAL LAW – sentence – verdict of guilty of assault occasioning death whilst intoxicated – mandatory minimum sentence and mandatory minimum non-parole period – where clear legislative intention to constrain sentencing discretion – where ability to give effect to favourable subjective considerations consequently restricted

Legislation Cited:
Crimes Act 1900 (NSW) ss 25A, 25B

Cases Cited:
Karim v R (2013) 83 NSWLR 268; [2013] NSWCCA 23

Category: Sentence
Parties: Regina (Crown)
Justin Shawn John Smith (Offender)
Representation:
Counsel:
B G Campbell (Crown)
J Watts (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aboriginal Legal Service (NSW/ACT) Limited (Offender)

File Number(s): 2019/4224
Publication restriction: Nil

REMARKS ON SENTENCE

HIS HONOUR: Justin Shawn John Smith was arraigned and tried before a jury at Coffs Harbour commencing on 9 November 2020 on a single charge that on or about 5 January 2019 at New Lambton Heights in the State of New South Wales he did murder Luke William Freeman. Alternative verdicts of manslaughter, assault occasioning death whilst intoxicated and assault occasioning death were left for the jury’s consideration. On 19 November 2020, the jury returned a verdict that Mr Smith was not guilty of murder but guilty of the alternative count of assault occasioning death while intoxicated: s 25A(2) of the Crimes Act 1900. Mr Smith is now to be sentenced for that offence.

Factual basis for sentence

I consider that, consistently with the jury’s verdict, Mr Smith should be sentenced upon the following facts.
As at 5 January 2019, Mr Smith was 33 years old and had known Katrina Marshall for approximately 10 years as a close friend. Their relationship had never been intimate. Ms Marshall was then 28 years old and had commenced an intimate relationship with Mr Freeman, who was the same age. Although they did not live together, Mr Freeman had stayed several nights with her since Christmas at the home she shared with her brother, Daniel Marshall.
On the afternoon of 4 January 2019, Ms Marshall, Mr Freeman and Mr Marshall commenced drinking alcohol at their home at 7 Gardenia Way,…

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 [2021] NSWSC 825
Case: [2021] NSWSC 825
Decision Date: 15 July 2021

CaseChat Overview and Summary

The case involved the prosecution of Smith, who was charged with the murder of a victim who died from stab wounds inflicted by Smith. The incident occurred after a prolonged period of mutual drinking, during which Smith perceived a threat from the victim and armed himself with a knife. The jury returned a verdict of guilty for assault occasioning death whilst intoxicated, excluding the possibilities of death by excessive self-defence or unlawful and dangerous stabbing. The central issue before the court was the application of the mandatory minimum sentencing provisions for this offence, which required the imposition of a specific term of imprisonment and a non-parole period.

The court needed to determine the appropriate sentence, considering the mandatory minimum sentencing provisions and the legislative intent to limit judicial discretion in such cases. Given the jury's verdict, the court had to balance the statutory requirements with the circumstances of the case, including Smith's intoxication and the subjective considerations that might otherwise influence sentencing. The court acknowledged the legislative intent to constrain sentencing discretion and recognised that this constrained its ability to take into account favourable subjective factors in Smith's case.

The court ultimately determined that the mandatory minimum sentencing provisions precluded any deviation from the prescribed sentence. As such, Smith was sentenced in accordance with the statutory requirements, reflecting the legislative intent to impose stringent penalties for this type of offence. The court emphasised the importance of adhering to the mandatory minimum terms to ensure consistent and predictable sentencing outcomes, even in cases where subjective considerations might otherwise influence the sentence.

Orders