JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 – 21 November 2007 and 22 February 2008
DATE OF SENTENCE:	1 April 2008
CASE MAY BE CITED AS:	R v Smith
MEDIUM NEUTRAL CITATION:	[2008] VSC 87

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CRIMINAL LAW – Sentencing – Defensive homicide – Relevance of manslaughter sentences – Stabbing – Prospects of rehabilitation – 7 Years with non parole period of 5 ½ years

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. Gabriele Cannon	Office of Public Prosecutions
For the Accused	Mr. Mark Rochford	Robert Stary & Associates

HIS HONOUR:

Michael Paul Smith, on Monday 19 November 2007, you pleaded not guilty to a charge that you had, on 25 May 2006, murdered Arthur Karatasios. The prosecutor opened the case to the jury that day. Evidence was heard on the morning of Tuesday 20 November 2007. At the request of both counsel the matter was adjourned shortly after lunch that day.

On Wednesday 21 November 2007, I was told by counsel that you wished to plead guilty to the crime of defensive homicide and that the Crown would accept that plea. You were re‑arraigned before the jury and pleaded not guilty to murder but guilty to defensive homicide. At my direction the jury returned a verdict of not guilty of murder, guilty of defensive homicide.

The maximum penalty for the crime of defensive homicide is 20 years’ imprisonment.

The crime of defensive homicide is a new offence, introduced by the Crimes (Homicide) Act 2005. The offence is committed where a person carries out conduct that would otherwise be murder, believing that conduct to be necessary to defend himself or another from the infliction of death or really serious injury but in circumstances where the person did not have reasonable grounds for that belief.

Before me both counsel submitted there was no basis for a finding that defence of another was raised by the material here, and I accept that. Accordingly, I sentence you on the basis that it was your acts that were a substantial cause of the deceased’s death; that those acts were conscious, voluntary and deliberate; that those acts were performed with the intention of either killing the deceased or causing him really serious physical injury; that you performed those acts believing they were necessary to defend yourself from the infliction of death or really serious injury; but that you did not have reasonable grounds for that belief.

I turn then to the circumstances which led to the fatal confrontation.

On the night of 25 May 2006 the deceased, Arthur Karatasios, and two friends, James Percy and Zakhar Grojsman, went to the MCG to see a soccer match between Australia and Greece. Mr Grojsman had been a friend of the deceased for some four or five years. Mr Percy had only known him for about a month. They could not…

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 [2008] VSC 87
Case: [2008] VSC 87
Decision Date: 1 April 2008

CaseChat Overview and Summary

The case of R v Smith involved the appellant, Smith, who was convicted of manslaughter following the fatal stabbing of an individual. The matter was heard in the Supreme Court of Victoria, which was tasked with determining the appropriate sentence for Smith. Smith had no prior criminal record, and the circumstances leading to the stabbing were deemed to be in self-defence, though the court found that Smith's actions were not entirely justified. The legal issues before the court were to determine the appropriate sentence, considering the nature of the offence and Smith's prospects for rehabilitation.

The court examined the principles of sentencing for manslaughter, particularly in cases of defensive homicide. It considered the relevant sentencing guidelines and the need to balance the seriousness of the offence with Smith's prospects for rehabilitation. The court noted that while Smith's actions were driven by self-preservation, the loss of life was a significant consequence. In determining the sentence, the court also had to consider the statutory maximum penalty for manslaughter and whether the sentence should reflect the unique circumstances of this case.

After considering the evidence and submissions, the court found that a custodial sentence was necessary to reflect the seriousness of the offence. The court determined that a sentence of seven years imprisonment, with a non-parole period of five and a half years, was appropriate. The court highlighted that this sentence provided sufficient punishment while also considering Smith's potential for rehabilitation and the mitigating factors present in the case. The court emphasised the importance of rehabilitation in the sentencing process and believed that this sentence would provide Smith with the opportunity to address the underlying issues that led to the incident.

Orders