R v Smith
[2018] VSC 656
•31 October 2018
| 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 middle of 2017.
During the course of his relationship with Brigitte Hansen, your son commenced to use drugs, namely ice and synthetic cannabis, on a regular basis. His drug use became very problematic and blighted the last years of his life. It also caused a great deal of tension between you and your son.
In the five years preceding his death, Andrew had lived on-and-off with you and Kathleen in the Mulgrave property. His drug use and its effects were a source of great frustration for you. On some occasions when his addiction flared, Andrew would hock his possessions to pay for drugs, and even went as far as stealing items from your home and selling them to fund his habit.
In early 2016, with the financial assistance of you and Kathleen, Andrew voluntarily entered a drug rehabilitation clinic in Townsville. He remained there until leaving to see his first son, Geoffrey, born in 2016. After not being allowed to see his son by Ms Hansen, Andrew relapsed into drug use and shortly thereafter, returned to the clinic. After completing his rehabilitation in 2016, Andrew remained relatively drug free in a period during which he was subject to routine drug screening as part of the conditions of having contact with his children. Following a change in access to his children in September 2017, there was a further relapse by Andrew during which he was out of contact with you and Kathleen for a two week period. According to Kathleen, Andrew cleaned himself up again and then seemingly remained drug free and living with you and Kathleen up until his death.
Kathleen indicated the relationship between you and Andrew was up and down, often but not always depending on how things were going for Andrew in respect of his drug habit. Arguments were quite frequent, and on occasions these descended to pushing and shoving, but never blows as far as she was aware. She noticed, however, that in the final weeks leading up to the murder, verbal disagreements between you and your son became more frequent, with alcohol sometimes being a trigger in her view, although I note in that regard that she stated Andrew was not a big drinker and you yourself, whilst a drinker, were not a problem drinker. The disagreements or fights between the two of you were usually over what could be described as fairly minor matters. Sometimes there was lingering animosity for a while, but in time, things would be seemingly good again between you and your son.
The incident
In the relatively mundane events which unfolded on the afternoon and evening of Monday 18 December 2017, there was no warning whatsoever of the shocking event which would end the life of your only son.
Andrew worked that day, and returned home at about 2.30 pm. He commenced to drink pre-mixed cans of bourbon in the back yard of the premises. Kathleen returned home not long afterwards and sat with Andrew in the backyard and chatted with him. She found him to be in good spirits and he told her of his desire to earn more money over the Christmas/New Year period so he could spend more time with his sons.
At about 5.45pm, your friend Mervyn Burns arrived at the house and joined the others for a drink in the backyard. You arrived home shortly thereafter. The four of you spent a pleasant period of time drinking in the backyard, with you, your wife and Burns consuming cans of beer and Andrew continuing to drink cans of bourbon. Burns considered none of those in attendance to appear alcohol-affected. He later described the mood during this time as good, with no tension and all three members of your family laughing and joking. Just before he left, he heard you ask Kathleen, ‘What is for dinner, my love?’, to which she replied, ‘Omelette tonight, Peter.’
Not long after Burns left the premises at 7.30pm, you and Andrew started to argue with each other about minor matters. Andrew went inside to prepare to make the omelettes for dinner, and was joined by Kathleen while you remained drinking outside. She helped Andrew in the preparations then left him to cook the food while she rejoined you outside.
Shortly afterwards, Andrew came out the back door and tipped the contents of a frying pan out onto the ground. You jumped up and said to Andrew, ‘What are you doing? That will make the dog sick’, to which he replied, ‘Fuck the dog. Fuck you. You’ll be dead in a year’, in seeming reference to your health issues.
You then followed your son inside the house and continued arguing with him. He said to you, ‘Have a go at me and I will kill ya’. As Kathleen heard things from the backyard, Andrew actually goaded you to strike him, saying, ‘Come on old man, just hit me.’ You did, indeed, attempt to strike Andrew. He evaded the blow and instead pushed you to the ground, causing you to sustain minor cuts and abrasions in the process.
You then came outside the house and cleaned up the egg on the ground and placed it in a rubbish bin. Andrew followed you outside and the argument between the two of you continued for a short time, during which he again goaded you to hit him. Kathleen told you both to stop it. Andrew then went inside to his bedroom, closing the door behind him.
Shortly afterwards, you and Kathleen went inside and she cooked an omelette for you, which you ate in the kitchen. While she was cooking the meal, she noticed some broken tiles in the kitchen behind the stove. She asked you what had happened with the tiles, and you said to her, ‘We won’t get our bond back again.’ The indications are that Andrew, in some manner which is unclear, must have damaged the tiles. After eating your meal, you went to your bedroom.
After cooking your meal, Kathleen went outside again for a while before returning inside to check to ensure that Andrew’s keys were hanging up in their usual place so he could go to work in the morning. Finding the keys were not there, Kathleen went into the bedroom and asked you where they were. You said you did not know.
Kathleen then saw you put your dressing gown on and you followed her from the bedroom down the hallway. She saw you go out the front door before she herself went out into the back yard again to have a cigarette. She next observed you walking out the back door and saw you walk to the caravan which was parked in the driveway.
Having entered the caravan you lifted up the main bed and accessed a wooden case in the storage area underneath the bed. In the case was a Laurona Elibar 12 gauge over and under shotgun that was stored in three pieces. You assembled the shotgun and loaded it with ammunition from a bag located in the same storage area. You then left the caravan and walked back towards the house. As you walked to the back door you said to Kathleen, ‘I’m gonna kill the cunt and then I’m gonna kill myself.’ Kathleen did not take your threat seriously and replied, ‘Yeah, right, of course you are.’
You then entered the house and walked to Andrew’s room. You opened the door and switched on the light, waking Andrew who had been asleep in his bed. You raised the shotgun, pointed it at Andrew, who was lying on his right side in the bed, and discharged both barrels of the weapon in quick succession, striking Andrew in the lower left lumbar region and the upper left chest region from a distance you described as being about five to six feet. He died instantly or close to it.
You then walked out of the bedroom and went to the lounge room where you opened the firearm and placed it on a chair. You went outside and said to Kathleen, ‘Now ring the cops’, before returning inside. She was already in the process of calling 000 and spoke to emergency services and requested the attendance of police.
Members of Victoria Police arrived promptly and following a brief conversation with you on the phone, arrested you without incident. An initial inspection of the scene located the firearm in the lounge room and Andrew on the bed where he had been shot. Ambulance Victoria personnel attended and confirmed he was deceased.
On further examination of the scene, the Laurona shotgun inside the house, which is the subject of Charge 2 on the indictment, was found to contain a fired 12 gauge shell in each barrel. The storage area under the bed in the caravan was located, and inside, police located the Mossberg .22 rifle which is the subject of Charge 3 and the Lee Enfield .303 rifle the subject of Charge 4, as well as a quantity of ammunition for the two rifles, and for the Laurona shotgun.
Your interview with the police
Following your arrest, you were transported to the office of the Homicide Squad and interviewed by Detective Senior Constable Simpson in an audio and video recorded interview, the main portion of which commenced at 2.27am on 19 December 2017. In the interview, when asked to say in as much detail as possible, what had occurred, you said, ‘We had a bit of a disagreement, a few threats. I just had enough over the years. I’ve just had enough. So I just loaded the shotgun, walked in the bedroom and shot him twice…I knew I’d killed him and I just walked outside, said to Kathleen “Ring the police”…It just happened. I couldn’t take any more. It’s over now. I don’t have to worry.’ You went on to say, ‘I just had enough of him, couldn’t put up with anymore, just making everyone miserable.’ You told the police of the incident with the burnt omelette tipped in the backyard by your son which led to an altercation in which you threw a punch at Andrew and had a wrestle with him. You said, ‘I’d had enough of him. Just everything built up on me.’ You informed the police that you saw the smashed tiles on the kitchen wall, and said, ‘As I said, he just cost me more and more money.’ You said that after your altercation with Andrew, you went to your bedroom and then just said, ‘Well, I’ll end all this right now’, and you went and got the gun. You said there was a break of 20 minutes between the physical altercation and going and getting the gun. You explained how you assembled it and loaded it. You then removed the safety and went inside. In respect of the shooting itself, you said, ‘I just opened the door and turned the light on and pointed the gun at me (sic.) and he just yelled at me and I just let go with both barrels.’ You said Andrew was lying on the bed with his back to you, and you shot him in the back and the head. You did so from 5 to 6 feet away. You told the police you then left the room, opened the gun up, and put it on the chair. In respect of all three firearms, you admitted they were not registered. You spoke of Andrew’s drug problem, his efforts at rehabilitation, and the fact he would sometimes steal property from you and your wife when he was using drugs. You stated that after you had tried to punch him, he had goaded you by saying, ‘Have a go at me, I’ll kill you…Think you’re good enough? I’ll kill ya’ You said you did not take the threat seriously, but, as you said, ‘Just built up on me, that’s all. Too many years of it.’
When being interviewed by a medical practitioner who attended in the interview room to conduct a forensic procedure upon you, you indicated you had had ‘about 8 cans of beer’ before the incident. Again, you said to the doctor, ‘I’ve just had enough. I couldn’t take anymore.’ When the interview re-commenced with Det. S/C Simpson, you repeated the statement about having consumed about 8 cans of beer. You said you had always had a fiery relationship with Andrew. You admitted having said to your wife, when you were on the way to get the gun from the caravan, ‘I’m gunna kill the cunt and then I’m gunna kill myself.’ You were asked if you could think of anything else you might want to tell the police, and you said, ‘Not really, just that I did do it and that’s all there is to it.’ When asked at the end of the interview if you had any reason for doing what you did, you said, ‘I think I might’ve lost it a bit. I think it just might’ve built up on me and I couldn’t see a future for him.’
Autopsy
An autopsy was carried out by Dr Michael Burke on 20 December 2017. He observed two shotgun entrance injuries, one to the left lumbar region and the other to the left upper arm/chest, which then involved the left side of the face and upper neck. The injury to the lumbar region extended acutely upwards toward the apex of the right chest and resulted in rupture to the aorta leading to two litres of blood in the chest. This shot resulted in pellet injuries to the heart, lungs, liver and left kidney. The injury to the left upper arm/chest, on re-entry to the left side of the face and neck, resulted in multiple fractures to the skull and extensive lacerations to the brain and brainstem. It was the view of Dr Burke that both shotgun discharges would have been lethal. Toxicological analysis revealed a blood alcohol level of .07 percent.
The cause of death was ascertained to be ‘SHOTGUN INJURIES TO THE BACK AND HEAD.’
Your personal background
Your personal background was touched on only fairly briefly during the plea because it was set out in some detail in the psychiatric report of Dr Nina Zimmerman, which became Exhibit 2 on the plea. Stated very briefly, you are now 70 years old, having been born on 10 April 1948. You had a reasonably happy, although somewhat impoverished childhood in Melbourne. You struggled academically and left school after two attempts at Year 9. You commenced an apprenticeship as a motor mechanic but again, struggled with the academic component, leading you to leave before completion. You then spent most of the years of your working life working as a truck driver, having long periods of employment at two companies, the second being Walford Transport, at which you were still in full time employment at the time of your incarceration. You had a number of long-term relationships before meeting your wife Kathleen, to whom you have been happily married for 35 years. You have three daughters from the previous relationships, and your son, Andrew, and daughter, Nicole from your current marriage.
You have had some health problems in recent times. In particular, you were diagnosed with a low-grade cancer of the bladder in 2017. The cancer was surgically removed, and the current indications are promising.
It seems you suffered from an undiagnosed depressive condition at the time of your crime. I will turn more fully to this when dealing with the report of Dr Zimmerman.
You have some prior convictions contained in the criminal record filed in this case. They were for larceny from a motor vehicle in 1967, and wilful damage in 1969. They are irrelevant for present purposes. I sentence you as a man with no relevant prior convictions and a long and impressive history of employment.
The plea in mitigation in a nutshell
Mr Edney of counsel, in accordance with his Outline of Submissions on the plea[1], approached his submissions in connection with the offending on the basis of there being
· a background to the offending, to be found in the undiagnosed and untreated depression with which you apparently suffered at the time, and the long-term deterioration in the relationship between you and your son as a result of the drug addiction which blighted his life; and
· a foreground to the offending, consisting of the verbal and physical altercation which took place immediately before the murder.
[1]Exhibit 1.
In respect of the background, Mr Edney spoke of the repetitive cycle of the drug addiction of your son, the extent to which you and your wife sought to help him over a period of many years, and the insidious and very destructive impact of Andrew’s drug problems on your family over time, and in particular, on your relationship with Andrew. Despite the tension and stress created by Andrew’s travails, however, it was asserted on your behalf - and there is evidence in support of this – that there still appeared to be great love and affection between you and Andrew, which magnifies the tragedy of these events.
Before turning to deal with what he described as the foreground, Mr Edney submitted that in the context of your apparent love for your son, your long-term efforts to help him, and the absence of any previous threats to hurt or kill him, the events of the night in question could be seen to be unplanned and unpremeditated. He also asserted that you were suffering from a major depressive disorder at the time of the events.
I pause to note that your murder of Andrew cannot be described as entirely unplanned and unpremeditated. You did spend at least some time planning what you were going to do. This was no entirely spur-of-the-moment crime committed in the blink of an eye. You decided you were going to murder your son, then set about carrying out the steps required to do so.
As to the foreground, Mr Edney, placing particular reliance on some answers you gave to police in the interview, described it as, ‘more of a trigger for a longstanding frustration, perhaps anger, and coloured by the depression of Mr Smith.’
Admissions, plea of guilty, and remorse
Mr Edney strongly relied on three matters which he dealt with under the umbrella of your response to the offence. These were the fact that you made full and complete admissions to your crime, the fact that you pleaded guilty at an early opportunity, and the fact that you have manifested your remorse for your crime.
Admissions
Your account to the police was described by Mr Edney as an ‘unvarnished account’ of what you did, and that was a fair description. You certainly pulled no punches in what you said, and it is to your credit that you were as frank as you were. You explained your crime as well as you were able to do.
Plea of guilty and remorse
Your plea of guilty was asserted to have been made at the earliest opportunity, at the committal mention on 24 April 2018. I accept that this was so. I take into account in your favour that early plea of guilty entered by you. You are entitled to a significant reduction in sentence on account of the plea of guilty, which amongst other things is indicative of the remorse you manifested from an early time after your murder of your son.
On the matter of remorse, despite the fact that there were no actual expressions of remorse in your police interview, I accept the submission of Mr Edney that you have shown genuine remorse in respect of your conduct. I take that fact into account in your favour.
Your mental state at the time of the offending
One of the important matters relied upon by defence counsel on the plea was the assertion that at the time of your crime, you were suffering from undiagnosed and untreated major depression. It was asserted, based on the report of Dr Zimmerman to which I have already referred, that this condition had a bearing on, or connection with, the offending.
Dr Zimmerman had the following to say in respect of your depressed state:
Mr Smith has provided a consistent account to police, mental health clinicians in prison and to myself of a history of deteriorating mood over the past few years. He describes lowering of mood, markedly diminishing interest in usual activities such as attending social and family occasions or going camping, loss of appetite and poor sleep. These features impacted significantly on his social functioning and also on his performance at work. I believe that Mr Smith has a history of Major Depression. More often than not, depression is a relapsing illness such that, even once in remission, individuals remain at risk of future episodes of depression. Thus, his depression could cause impaired functioning in the future should it recur and remain untreated.[2]
[2]Exhibit 2 at [47].
Dr Zimmerman also expressed the opinion that you were depressed at the time of her report. I note in that regard that the Justice Health file to which she had regard indicated that there were concerns about your psychiatric condition early on during your incarceration, that you had received some counselling from a psychologist, were reviewed by a psychiatrist, but had not been placed on any medication. At the time of your discharge from the Mobile Forensic Mental Health Service on 7 March 2018, you were said to be sleeping well and your mood was good. When you saw Dr Zimmerman, however, you presented as tearful, low in mood, overwhelmed by feelings of guilt and shame, suffering from poor sleep, with ‘lowered speech and a desire not to live any more.’
Dr Zimmerman went on to say:
I believe that there is a direct relationship between Mr Smith’s mental illness and his offending. Mr Smith describes a clear set of cognitive, depressive and behavioural symptoms of depression at the time of the offending, as noted above. A man with no experience in dealing with emotional distress by talking or seeking help, he felt overwhelmed by many years of his son’s drug abuse and its associated devastating impacts on the family, both emotional and financial, spilling over into increased tension between Mr Smith and his wife…He felt resentment that his son’s behaviour had impacted on him financially but also experienced shame and grief that he had been unable to prepare financially for his retirement with his wife. In the grips of an episode of major depression that was untreated, Mr Smith and his son had one of many arguments triggered by a relatively minor event. On this occasion, it appears to have been the final straw. Mr Smith described his mind ‘snapping’. I believe that his Major Depression will have significantly impacted on his ability to make reasoned and thoughtful judgments. His alcohol consumption that evening will have increased disinhibition and decreased his ability to resist impulses.[3]
[3]Exhibit 2 at [47].
Mr Edney, relying on the report of Dr Zimmerman, submitted that a number of the principles set out in Verdins[4] have application in this case. He submitted that there was what he described as a realistic connection or causal link between your long-term, undiagnosed and untreated depressive illness and the offending. He further submitted that your gross overreaction to the modest provocation provided by your son ‘bespoke of a person whose ability to respond appropriately had been diminished and indicates a significantly compromised mental state.’[5]
[4]R v Verdins (2007) 16 VR 269.
[5]Plea 37.
When asked by me to specify which limbs in Verdins would have application to you, Mr Edney submitted that limbs 1, 3, 4, and 5 would all be relevant.
During the plea, I challenged the assertion, based on the opinion of Dr Zimmerman, that your depression at the time had any real impact on or link with your crime. I made the point that your killing of your son was a long way removed from a crime carried out due to a momentary flying off the handle. In the face of the very slight provocation offered by Andrew that night, but in the context of your troubled and deteriorating relationship with him over a period of years, you formed the intention to murder him. This decision was made quite some time after the angry behaviour between you and your son that night had ceased. Having decided upon your course, you went through various steps before carrying out the crime. I made the point that it was difficult to see that what you did was the product, or even partly the product, of your depressed state, as opposed to your having reached the end of your tether as a result of all that had been happening over the years, triggered by what had occurred that evening. In those circumstances, your depression would simply be part of the background without any causal link with the crime.
In the course of discussions, I referred Mr Edney to DPP v O’Neill,[6] and in particular to paragraph 75 in which the Court of Appeal stated:
Third, to show the necessary connection to the offending and so enliven limbs one to four of Verdins, the offender must establish that the mental impairment affected the offender’s ability to appreciate the wrongfulness of the conduct, or obscured the offender’s intent to commit the offence, or impaired the offender’s ability to make calm and rational choices or think clearly at the time of the offence.
[6](2015) 47 VR 395.
Mr Edney submitted that your moral culpability is reduced because of the asserted causal connection between your depression and your crime. He also submitted that general and specific deterrence should be moderated in this case. Finally, where Verdins was concerned, he submitted that there should be a reduction in sentence on account of the fact that any sentence of imprisonment would weigh more heavily on you than it would upon a person not suffering from the condition from which you suffer.
The prosecutor, Mr Rochford QC, for his part, did not dispute that a number of the principles in Verdins were enlivened in your case, particularly the fifth limb. He accepted on behalf of the prosecution that your capacity to engage in calm, reflective decision-making at the time of the crime was somewhat compromised in accordance with the report of Dr Zimmerman. He acknowledged, therefore, that it would be appropriate for me to accept that moral culpability was reduced to some extent, but he submitted that your moral culpability remained high. As for general deterrence, Mr Rochford accepted that it should be moderated ‘to some minor extent’. And he did not put forward specific deterrence as being significant in this case.
Conclusion on impact of mental state upon sentence
Despite my misgivings on the issue of the causal connection between your depressed state at the time of your offending and your murder of your son, in light of all of the circumstances including, in particular, the concessions made by the prosecution, I am prepared to find, and to sentence you on the basis, that your moral culpability for your crime is somewhat reduced, that general and specific deterrence should be sensibly moderated, and that there should be an allowance in sentence because your depressed condition will mean that the term of imprisonment you will be required to serve will weigh more heavily on you than on a person who was not depressed.
Having said all of that, I agree with the submission of Mr Rochford that moral culpability remains high, and there is no question that general deterrence remains a very important sentencing consideration.
Current sentencing practices and comparable cases
In arriving at the appropriate sentence I have taken account of current sentencing practices. In seeking to understand these, I have considered, amongst other things, the Sentencing Snapshot from the Sentencing Advisory Council, the helpful material contained within the Judicial College of Victoria’s Victorian Sentencing Manual, including the murder case collection, and a number of other cases in which sentences for murder have been passed or considered.
Mr Edney took me to two cases which had at least some parallels with your case. The two cases were R v Tran[7] and Felicite v The Queen.[8] Neither, of course, was relied on as some sort of precedent where sentence was concerned. I have considered these cases, and in particular, the principles contained within them.
[7][2008] VSCA 80.
[8](2011) 37 VR 329.
Mr Edney set out in his submissions the following passage from the judgment of Redlich JA at paragraph 19 in Felicite:
Allowance has sometimes been made for the fact that a murder committed on the spur of the moment in a domestic environment as a consequence of a volatile mixture of emotions…may attract a lesser sentence. The existence of great emotional strain within a domestic or spousal relationship which plays upon the offender’s emotional susceptibilities and results in a spontaneous act may bear upon the offender’s degree of criminality.[9]
[9]Ibid.
I note that in the same paragraph, his Honour went on to say, ‘But murders that occur in such circumstances are not to be approached as though they fall into a discrete and less serious category of the offence.’
In Felicite, the appellant relied, during the plea, upon his problem with anger management to explain why he acted as he did. As Redlich JA stated, however, ‘But his violent response was not a spontaneous reaction to a sudden event causing great emotional stress. It was the consequence of his inability to control his anger.’[10]
[10]Ibid at [34].
In his submissions in reply on the plea, Mr Rochford drew to my attention to the paragraph immediately following the passage referred to by Mr Edney, as being apt to the present case, in spite of the fact that Felicite concerned the murder of a domestic partner rather than a child. The Court stated:
The taking of a domestic partner’s life undermines the foundations of personal relationships and family trust, upon which our society rests. The sentence must reflect both the sanctity of human life and society’s abhorrence of violence towards vulnerable and trusting partners, who could legitimately have expected the offender to be the protector from, not the perpetrator of violent abuse. An outburst of homicidal rage in such contexts is totally unacceptable. The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course. Accordingly, the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress. [11]
[11](2011) 37 VR 329 at [20].
Your physical ill health
I have already mentioned your diagnosis in 2017 with low-grade bladder cancer. The prognosis there seems positive enough. Counsel also drew my attention to the evidence of some decline in your cognitive function as indicated in the neuropsychiatric report of Martin Jackson[12], your high cholesterol and your high blood pressure. Fortunately, the decline in your overall physical health is not as marked as is often the case, but I do take it into account.
[12]Exhibit 3.
Your age
Mr Edney submitted that your age of 70 is a relevant matter where sentence is concerned. As he put it, for you, every year of imprisonment represents a greater proportion of the rest of your life than would be the case for a younger offender. He referred to a number of authorities in that regard.[13] He submitted that I should impose a non-parole period which would allow at least the hope to you that you might be released from prison before you die.
[13]R v Cumberbatch (2004) 8 VR 9 at [13]; R v Hunter (1984) 36 SASR 101 at 103.
Mr Rochford, on the other hand, submitted that the sentence should not be moderated at all because of the consideration of your age.
I believe the authorities make it clear that your age at the time of sentence is a relevant consideration to be taken into account when sentence is passed upon you.[14] I do take your age into account, but I point out that the law is clear. Your advanced years cannot justify the imposition of an inappropriately low sentence upon you. Because of the considerable seriousness of your crime, the non-parole period which will be required in your case will necessarily require you to spend a substantial part if not all of the years which remain to you in custody. That cannot be avoided. However, as was requested of me by Mr Edney, I do intend to pass a non-parole period which will allow you at least the hope of being released from prison before you die.
[14]R v RLP (2009) 213 A Crim R 461; Burgess v The Queen [2017] VSCA 59 at [39].
The nature and gravity of the offence
One of the matters I am required to take into account in sentencing you is the nature and gravity of the offence you carried out. In my view, yours is a very serious example of the always-serious crime of murder. Whatever had happened in the years leading up to this tragic event, and no matter the frustration, anxiety, and great distress caused to you by the sad way in which your son had lived his life, he remained your son. You were meant to be in a position of great trust where he was concerned. Entirely breaching that position of trust, you chose to act upon the anger and frustration you felt towards him. As stated already, yours was not an entirely spontaneous, unplanned and unpremeditated crime. You undoubtedly realised as you contemplated and then carried out your crime, the enormity of what you were doing. It was not lost on you how totally unacceptable and reprehensible your intended conduct was. You had ample time to reflect upon what you were doing, but you allowed your anger and sadness to overwhelm all reason. When you carried out the murder, the method chosen by you was at the very serious end of the spectrum. You took a double-barrelled shotgun to a defenceless man – your son - lying in his bed, from close range. Yours was a shocking, senseless and inexcusable crime.
Impact of your offence on its victims
In sentencing you, I am required to have regard to the impact of your offence on any victim of the offence, and also the personal circumstances of any victim. No victim impact statements have been filed. That does not, of course, mean this crime does not have victims beyond your son whose life was cut short by you. He was a partner to Brigitte and a father to Geoffrey and Kohan. It is a particular tragedy that Andrew’s two young sons will grow up not knowing their father. For all his faults, he showed in their short lives that they were important to him, and no doubt he would have fulfilled an important role in their lives. He is now lost to them. And your wife Kathleen is also a victim of your crime. You took away her much-loved son in shocking circumstances which she will always remember. Of course, the impact of your crime would be felt more widely than just amongst those I have mentioned. I take those matters into account in sentencing you.
Important sentencing considerations
Although no doubt the knowledge you will always have that you took away the life of your only son will amount to ongoing punishment to you, the sentence passed upon you must itself have a component of punishment within it to the extent which is just in the circumstances. The sentence must also manifest the denunciation by this Court of the shockingly violent conduct which you carried out. Furthermore, the sentence I pass on you must be such as to bring it clearly home to others in the community who may be minded to act with extreme violence and take the life of a close family member for reasons of anger, frustration, and resentment, that such behaviour will be met with condign punishment.
Sentence
Stand up please, Mr Smith.
Peter John Smith, for the murder of Andrew Smith, you are sentenced to be imprisoned for a period of 19 years.
On each of the three charges of possessing an unregistered longarm, you are convicted and discharged.
I fix a period of 14 years, before which you will not be eligible to be released on parole.
I declare a period of 316 days up to and including yesterday, 30 October 2018, as being a period already served under this sentence.
I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentence you to be imprisoned for 25 years with a non-parole period of 20 years.
I make the forfeiture and disposal orders sought by the prosecution and consented to by the defence.
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