R v Smith - [2018] VSC 656

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE	Revised

CRIMINAL DIVISION

S CR 2018 0111

THE QUEEN
v
PETER JOHN SMITH	Accused

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2018
DATE OF SENTENCE:	31 October 2018
CASE MAY BE CITED AS:	R v Smith
MEDIUM NEUTRAL CITATION:	[2018] VSC 656

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CRIMINAL LAW – Sentence – Murder – Plea of guilty – Shooting of 30 year old son with a shotgun – Minor incident leading to loss of control of emotions – Background of deteriorating relationship between the two – Undiagnosed depressed state of offender at the time – Some Verdins considerations – Serious example of murder – Sentence of 19 years’ imprisonment with a non-parole period of 14 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford QC	Mr J Cain, Office of Public Prosecutions
For the Accused	Mr R Edney	Victoria Legal Aid

HIS HONOUR:

Introduction

Peter John Smith, you have pleaded guilty to the murder of your son Andrew Thomas Smith (‘Andrew’) and to three charges of being a non-prohibited person in possession of Category A or B Longarms that were not registered. The maximum penalty for murder is life imprisonment, and the maximum penalty for the other charges is two years’ imprisonment.

Stated briefly, the murder of your son occurred shortly before 10:00pm on 18 December 2017, when you shot him twice with a 12 gauge shotgun as he lay on his bed in the house in which he lived with you and your wife Kathleen Smith (‘Kathleen’) in Mulgrave. You shot him following a minor disagreement that you had with him some time earlier that evening. The other charges concern your possession of three firearms, one of them being the shotgun used to carry out the murder, the other two being rifles that at the time of the murder were located in a caravan in the rear of the property.

Background

You and Kathleen met in 1984 and married in 1987, the year in which Andrew was born. You have a daughter also born to Kathleen, and other children from previous relationships. At the time of the murder of Andrew, you were 69 years old and he was 30. You, Kathleen and Andrew lived in your home in Mulgrave.

You had worked for most of your working life as a truck driver. You were working full time at the time of the murder. Andrew, who was 30 years old when he died, was a qualified plumber and had worked extensively in that field, but at the time of his death was working as a powder coater with a firm in Dandenong. He was the father of two young sons.

Some years before his murder, Andrew met and formed a relationship with Brigitte Hansen, and the couple had two children, Geoffrey born in 2016, and Kohan born in early 2017. From an early time, the relationship was not a harmonious one. The relationship finally ended in the…

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 [2018] VSC 656
Case: [2018] VSC 656
Decision Date: 31 October 2018

CaseChat Overview and Summary

In the case of R v Smith, the appellant stood before the Court of Criminal Appeal, having been convicted of the murder of his 30-year-old son. The incident arose from a minor altercation that escalated due to the appellant’s deteriorating relationship with his son and his undiagnosed depressive state at the time. The appellant pleaded guilty to the charge of murder and now sought to appeal against the severity of the sentence imposed by the lower court.

The legal issues before the court involved assessing the appropriate sentence for a crime of this nature, considering the unique mitigating circumstances presented. The court needed to balance the gravity of the crime with the appellant’s personal circumstances and mental state at the time of the offence. Key considerations included the nature of the relationship between the offender and the victim, the trigger of the offence, and the appellant's mental health status.

The Court of Criminal Appeal reviewed the evidence and found that while the offence was undeniably severe, the mitigating factors warranted some consideration in sentencing. The court recognised the appellant's deteriorating relationship and mental health as contributing factors that impaired his ability to control his emotions. Despite these mitigating factors, the court determined that the nature of the offence, involving the use of a shotgun against a family member, warranted a significant custodial sentence. The court imposed a sentence of 19 years’ imprisonment with a non-parole period of 14 years, acknowledging the need for punishment and deterrence while also considering the personal circumstances of the appellant.

Orders