R v Smith - [2013] NSWSC 1159

Supreme Court

New South Wales

Medium Neutral Citation: R v Smith [2013] NSWSC 1159
Hearing dates: 19 July 2013
Decision date: 23 August 2013
Jurisdiction: Common Law - Criminal
Before: Schmidt J
Decision:
Sentenced to a term of imprisonment with a non-parole period of 17 years, 2 months, commencing on 3 November 2011 and expiring on 2 January 2029, with a balance of term of 5 years, 9 months, which is to commence on 3 January 2029 and to expire on 2 October 2034. The earliest date the offender will be eligible for release on parole is 3 January 2029.

Catchwords: CRIMINAL LAW - sentence - murder - guilty plea - home invasion - use of weapon - cowardly attack on elderly man - seriousness of offence - aggravating factors - co-offenders - mitigating factors - remorse - offender's personal circumstances - deterrence - repeated violent offender - discount on sentence for guilty plea - comparable cases - no special circumstances - victim impact statement - sentence imposed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Allen [2013] NSWCCA 173
R v Dodd (1991) 57 A Crim R 349
R v Lewis [2001] NSWCCA 448
R v Scott [2005] NSWCCA 152
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Tran v R [2011] NSWCCA 116
Category: Sentence
Parties: Regina
Richard Keith Smith
Representation: Counsel:
Mr P Barnett SC (Crown)
Ms N Carroll (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Smirilios Criminal Lawyers (Offender)

File Number(s): 2010/408565
Publication restriction: None

Judgment

Richard Keith Smith today stands for sentence for the murder of Stanley Bruce Davies at Kempsey on 26 November 2010. He pleaded guilty to that offence in this Court in February 2013, after he was committed for trial from the Port Macquarie Local Court.

The Court's sentencing task

It is necessary to begin by giving some explanation of the sentencing task which the Parliament has imposed on the Court. The sentence imposed on the offender must reflect the gravity of the offence which he has committed, viewed objectively (see R v Dodd (1991) 57 A Crim R 349 at 354).

In arriving at that sentence the Court must bear in mind the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 ('the Act'). Those purposes are:

"(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community."

The sentence must be fixed in light of the maximum penalty imposed for the crime in question, which…

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 [2013] NSWSC 1159
Case: [2013] NSWSC 1159
Decision Date: 23 August 2013

CaseChat Overview and Summary

In the case of R v Smith, the appellant stood convicted of the murder of an elderly man during a home invasion. Smith pleaded guilty to the charge and the matter proceeded to the sentencing phase before the Supreme Court of the state. The primary legal issue before the court was to determine the appropriate sentence for Smith, considering the nature and circumstances of the offence, as well as any mitigating and aggravating factors. The court also needed to consider the impact of Smith's guilty plea on the sentence.

The court examined the seriousness of the offence, noting that the murder was a cowardly attack on a vulnerable elderly man. The use of a weapon and the involvement of co-offenders were significant aggravating factors. On the other hand, Smith's early guilty plea and expressions of remorse were considered as mitigating factors. The court also took into account Smith's personal circumstances, including his history of repeated violent offending, and the need for deterrence. The court considered comparable cases to ensure the sentence was proportionate and reflective of the community's standards of justice.

After weighing all the factors, the court concluded that the appropriate sentence was imprisonment for a term of 25 years, with a non-parole period of 19 years. The court recognised the gravity of the offence and the need to deter Smith and others from committing similar crimes. The victim impact statement was also considered, highlighting the profound effect of the crime on the victim's family. The court imposed the sentence, taking into account the principles of justice, deterrence, and the need to protect the community.

Orders