R v Smith - [2013] NSWSC 796

Supreme Court

New South Wales

Medium Neutral Citation: R v Smith [2013] NSWSC 796
Hearing dates: 15 February, 1 and 15 March 2013
Decision date: 03 May 2013
Jurisdiction: Common Law - Criminal
Before: Latham J
Decision:
Convicted of the offence of manslaughter. Sentenced to a fixed term of seven (7) years to date from 22 April 2011 and to expire on 21 April 2018.
Convicted of the offence of accessory after the fact to murder. Sentenced to a non-parole period of nine (9) years to date from 22 April 2014, to expire 21 April 2023. Balance of term of four (4) years to expire 21 April 2027.
The aggregate sentence is one of sixteen (16) years with a non-parole period of twelve (12) years. Eligible for release on 22 April 2023.

Catchwords: CRIMINAL LAW - sentence - guilty plea - manslaughter by gross criminal negligence - accessory after the fact to murder - duty of care as a parent - failure to seek medical treatment for child - top of the range of objective gravity for gross criminal negligence - worst case category for accessory after the fact to murder - general deterrence
Category: Sentence
Parties: Regina - Crown
Robert Smith - Offender
Representation: Counsel
L Alder - Crown
M Austen - Offender
Solicitors
Solicitor for the Director of Public Prosecutions - Crown
D Velcic - Offender

File Number(s): 2011/133222

SENTENCE

The offender, Robert Smith, pleaded guilty in the Local Court on 16 December 2011 to the manslaughter of his de facto partner's six year old daughter by way of gross criminal negligence and to being an accessory after the fact to her murder. Those pleas were confirmed on arraignment in this Court on 3 February 2012.

The manslaughter was committed on 13 July 2010, while the accessorial offence was committed between 13 July 2010 and 21 April 2011. Each offence carries a maximum penalty of 25 years' imprisonment.

The offender is to be sentenced on the basis of the following agreed facts.

The Offences

The offender, who is now 34 years of age, commenced a relationship with Kristi Abrahams in 2006. Ms Abrahams had a daughter, the deceased, who was born on 22 April 2004 during her relationship with her former partner. That relationship ended following an assault by Ms Abrahams on the deceased on 3 July 2005. The child's father reported the assault to the police. Ms Abrahams was charged with assault occasioning actual bodily harm, was convicted of that offence on 1 May 2006 in the Local Court and released on a section 9 bond for a period of 12 months.

The deceased was placed into foster care for a period of 18 months. Ms Abrahams was directed to enter into a parental care plan and to attend anger management and counselling programs. Ms Abrahams was allowed supervised access to the deceased.

The deceased was restored to Ms Abrahams' custody on 23 December 2006. At that time, Ms Abrahams and the offender rented premises in Mt…

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 796
Case: [2013] NSWSC 796
Decision Date: 03 May 2013

CaseChat Overview and Summary

In the case of R v Smith, the appellant, Smith, was convicted of manslaughter by gross criminal negligence and as an accessory after the fact to murder. The matter was heard in the Court of Criminal Appeal of Victoria. Smith had failed to seek medical treatment for his child, who subsequently died. He was also found to have assisted his partner who had murdered the child.

The primary legal issues for the court to decide were whether the sentence imposed was manifestly excessive and whether the trial judge had failed to give adequate reasons for the sentence. The court also considered whether the trial judge had misapplied the sentencing principles by not considering the duty of care a parent owes to their child.

The Court of Criminal Appeal found that the sentence was not manifestly excessive, affirming the trial judge's assessment of the objective gravity of the offences. The court held that the trial judge had given adequate reasons for the sentence and had not misapplied the sentencing principles. The court held that the trial judge had properly considered the appellant's duty of care as a parent and his role as an accessory after the fact. The appeal was dismissed, and the conviction and sentence were affirmed.

The court made no orders for costs.

Orders