R v Smith

[2004] VSC 134

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1402 of  2004

THE QUEEN

v

BARRY ANTHONY SMITH

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JUDGE:	HARPER J
WHERE HELD:	SHEPPARTON (Trial);  MELBOURNE (Plea)
DATE OF HEARING:	9-12, 15-19, 22-23 and 31 MARCH 2004
DATE OF SENTENCE:	7 APRIL 2004
CASE MAY BE CITED AS:	R v SMITH
MEDIUM NEUTRAL CITATION:	[2019] VSC 134

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Sentence – Murder – Defence of provocation rejected by jury – Alleged homosexual advances - Offender hit deceased around the head with skateboard, stabbed him twice and inflicted knife wounds and a fatal crushing injury to neck – Offender had a history of bi-polar disorder – Failure by offender to take medication – Offender intoxicated – Youth of offender and effect of bi-polar disorder taken into consideration - Prior convictions for violence when intoxicated - Sentenced to a total of 18 years' imprisonment with a minimum of 13 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Williams	Office of Public Prosecutions
For the Defendant	Mr A. Lewis	Victoria Legal Aid

HIS HONOUR:

1. Barry Anthony Smith, you have been found guilty by a jury of a charge that you did at Tongala on 12 October 2002 murder Ricky Charles Webb.  Following your conviction, a plea was made on your behalf.  I have taken into account the matters then put before me.  I have also read the victim impact statements of Mr Webb's mother, his brother, Douglas, and his aunt, Pamela Bird.  Parliament has provided that these are made to the Court for the purpose of assisting the Court in determining sentence.  It has also provided that the Court must, in sentencing an offender, have regard, among other things, to the personal circumstances of any victim of the offence and any injury, loss or damage resulting directly from it.  I have read the victim impact statements with these provisions in mind.

1. You were born on 14 September 1979 to Stephen and Susan Smith.  Your parents separated when you were five years old.  Your mother subsequently married Mr Geoffrey Parkhouse.  You now allege that he sexually assaulted you when you were about seven years old.

1. You attended school until the age of 14 and a half.  You were then given an exemption because of your behavioural problems.  You returned to school at the age of about 16.  By this time, tests had shown that you were of above average intelligence.  Indeed, you were given a scholarship to a Christian Brothers school in Adelaide.

1. It seems that, unfortunately, you did not or could not take advantage of this opportunity.  You left that school after what your counsel described as "a couple of months".  You travelled to Victoria where you met and commenced to live with a girl, Nicole Onefretchook, of about your age.  You remained with her for the next three to four years.  You are the father of her child, Tahni.  Your daughter is now six years old.

1. While living with Ms Onefretchook, you had steady but not continuous employment with her father.  You worked as a labourer.  But the relationship did not last.  You left Victoria at the age of 20 and returned to Adelaide.  You there commenced to live with Amy Shwartz.  A child, Chelsea, who is now two years old, was born of that liaison.

1. While you have remained in contact with Tahni and her mother, the relationship with Ms Shwartz and with Chelsea has been completely severed.  Given the assault which you committed upon Chelsea's mother on 5 April 2000, that is no surprise.  You were subsequently convicted of assault occasionally actual bodily harm, two charges of damaging property, behaving in a disorderly manner, common assault and other offences.  You were sentenced to 18 months' imprisonment with a non-parole period of six months.

1. These were not your first convictions, although your prior history is of limited significance for present purposes because you had never before been found guilty of an offence involving injury to the person.  On April 11 1994, when you were only 14 years old, you were charged with damaging property.  Although convicted, you were discharged without penalty.  Two other court appearances in 1994 were followed by convictions for, among other things, motor vehicle offences, damaging property, burglary, being found with an offensive weapon and being in possession of property suspected of being stolen or unlawfully obtained.  The following year you were again required to attend court and in two separate appearances were convicted of further motor vehicle offences and a number of drug related offences.

1. A period of four years then passed without relevant incident.  Then, in 1999, you appeared twice in court.  Further convictions followed.  Again, they were for motor vehicle and drug offences and theft.

1. While you were in gaol following the assault on Amy Shwartz, you heard that Chelsea had been physically abused.  The news had an adverse effect on you.  Through the courts, you organised access rights to your daughter.  I take this into account to your credit.  The fact that the visits were not a success is something for which you cannot be blamed.  I should add that subsequent investigations have established that Ms Shwartz was not responsible for Chelsea's injuries.

1. After your release from gaol, you commenced to live with Natasha Thompson.  This arrangement continued until you brought to her house goods which had been stolen by your brother Stephen.  They were there discovered by Natasha and her father.  He was so upset by this that he threatened to kill you.  You moved out of the house immediately.  But, having nowhere else to go, you lived in your car until, about two days later, you heard from Ricky Webb.

1. You had first met Mr Webb in Melbourne in 1998.  You then spent about two days with him.  I proceed on the basis that you did not at that time discover that he was a homosexual.  When, in August 2002, he invited you to live with him in his rented house in Tongala, you accepted.

1. At first the arrangements worked well.  Mr Webb was a generous man at a time when you were in need of generosity.  He was also a friend for whom you had affection.  You had no work and your only income was a disability pension.  Although you contributed to the finances of the house, Mr Webb was the source of most of the expenditure.  The supplies purchased by him included a large proportion of the very large quantities of alcohol you both consumed.

1. When, on 12 November 2001, you were sentenced to gaol following the assault upon Amy Shwartz, the sentencing magistrate gave you credit for the fact that you had undertaken an anger management program and had more insight into the need to avoid abuse of alcohol.  That remark was pertinent, given the association between your prior offending and your drinking habits.  But His Worship was too quick to assume that you were prepared to help yourself.  His message did not register in the way it should.

1. At Tongala you were able to indulge yourself.  You seized that opportunity.  You now suggest that your appetite for alcohol was encouraged by Mr Webb.  That might have been so.  On the other hand, you were then approaching 23 years of age.  You could make up your own mind about these things and must take responsibility for your decisions.  They were not always the right ones.

1. You assert, and I accept, that after you arrived in Tongala you discovered that Mr Webb was a homosexual;  not only that, but he had designs on you.  For your part you are, you claim, heterosexual.  Again, I accept that this is so.  You are not, in your own words, homophobic;  but you did not like it when Mr Webb touched you sexually.  Yet you say you were trapped with Mr Webb in Tongala because you had nowhere else to live.

1. I accept that it is not easy for a single, unemployed and apparently almost friendless male to find permanent accommodation.  Certainly most such persons suddenly thrown out of one house could not expect quickly to find another in which to live.  But you must take your share of the blame for the fact that the doors of the homes of Amy Shwartz and Natasha Thompson had been closed to you.  In those circumstances, your complaints win less sympathy then they would have had you done the best with what you had.

1. You, and not Mr Webb, must accept responsibility for a large part of the discomfort you say you felt about your living arrangements in Tongala.  If you searched for a job, the Court has not heard of it.  Again, if you searched for alternative accommodation, apart from that which you thought your mother might be able to provide back in Adelaide, you said nothing about that in these proceedings.  But, more importantly, you took no steps to look after some important aspects of your welfare.

1. Your mother gave evidence on your behalf.  She spoke of the search to find the cause of the behavioural difficulties you faced as a child and young adult.  Other members of your family suffer from bipolar disorder.  So do you.  You are therefore subject to the unusual and debilitating highs and lows which are an unfortunate feature of that condition.  Yet you were not diagnosed as a victim and you were therefore not treated for it until you first consulted Dr Karuna-Ratna in April 2002.  He prescribed appropriate medication.  You described how much it reduced the symptoms of the disorder and what a relief that was.  Yet while in Tongala you failed to take your medication regularly and towards the end of your time there you failed to take it at all.  You preferred to "self medicate" on alcohol.

1. This was your decision, not Mr Webb's.  You were old enough and self-possessed enough to make these choices for yourself.  And that is so even accepting that Mr Webb, despite your mother's requests to the contrary, purchased much of the liquor and took no active steps to ensure that you obeyed your doctor's instructions.  Had you not succumbed to your own weaknesses, you would have been much better placed to ensure that Mr Webb's behaviour towards you conformed to your own notions of what was acceptable.

1. It is absolutely true that no-one should have to suffer the unwanted sexual advances of another.  The right to say "no" is a right which must be protected.  I am prepared to find that Mr Webb did not always respect that right, although I am not prepared to hold that he violated your physical integrity on particular occasions when either you had made it clear to him that you refused to cooperate or you were too drunk to appreciate what was happening.  This was not a case in which he was the predator and you were his helpless victim.

1. You were, in my opinion, entitled to be very upset at one aspect of Mr Webb's behaviour.  He knew that you did not want to be perceived as his sexual partner.  Yet he twice informed mutual acquaintances that you had a sexual relationship with him.  This was an invasion of your privacy, made the worse because, although you on rare occasions indulged your housemate's desire for sexual intimacy, you, I am satisfied, never gave him reason to believe that you were prepared to live with him as a homosexual couple.

1. The second of the occasions on which Mr Webb breached your privacy in this way occurred on the day of his death.  It made you extremely angry.  Your anger was reinforced by beer and scotch.  Later that evening, Mr Webb made what you thought was a sexual approach to you.  Whether it was or not is for present purposes immaterial.  He, like you, was very much affected by alcohol.  The judgment of neither of you was at that time to be trusted.  I am nevertheless satisfied that something Mr Webb did that evening after Mr Maddill left the house at 2 Cox Avenue was a trigger for what happened next.

1. Even if it was a trigger, however, it was certainly not an excuse.  It was followed by an attack on Mr Webb that was barbaric in its severity.  It started in one room of the house and moved to another or others.  You used a skateboard and a knife and probably a chair.  Finally, you inflicted a blow to your victim's neck which was the immediate cause of his death.  In the meantime he suffered terrible injuries at your hands.  This was not a sudden, impulsive fatal strike.  It was a prolonged and frenzied assault by a person who was determined to occasion maximum harm on another.

1. A murder of this kind must be followed by severe punishment.  Every human life deserves respect.  Your victim was a decent man who had been generous towards you.  You abandoned all decency in the way you ended his life.

1. I take into account your bipolar disorder, which adversely affected your capacity for judgment, and the fact that your drunkenness exacerbated your medical problems.  I also take into account your relative youth and the fact that you have only one prior conviction for assault.  You were not at the time suffering from a serious psychiatric illness but your mental health was such as to reduce somewhat your moral culpability.  At the same time, it must not be forgotten that you had it in your power to ameliorate the effects of your disorder.  You failed to grasp that opportunity.

1. I mentioned earlier in these sentencing remarks your assertion that at the age of seven you were sexually molested.  There must be some doubt about this because you made the allegation for the first time while on remand waiting trial for the present offence.  The issue is not one of particular importance in the present context, however, because I am prepared to sentence you on the basis that you were and are sensitive to unwanted sexual advances and that you have an absolute right to reject them.

1. You are an intelligent man.  Your upbringing and your medical problems have placed you at a disadvantage in life from which others are free.  I have taken these matters into account, as I have all the submissions put on your behalf in your plea.  I include in this your prison record, which shows that since your incarceration you have successfully completed programs in communication skills, offending behaviour 1 and 2, relapse prevention, horticulture, consequential thinking, anger management, occupational health and safety and alcohol and driving education.  You have also received a very good progress report in certificate 2 horticulture and have received certification that you have maintained ongoing participation in a program for overcoming anxiety.  In addition, you have a certificate of achievement from the North Melbourne Legal Service.  Finally, I accept and take into account your expression of remorse.

1. The brutal taking of a human life remains a consideration of paramount importance.  In this context I note that each of the victim impact statements refers to the depth of loss which each of those submitting them has experienced not only at the death of a near and loved relative but also at the manner of his death.  This was indeed an horrendous crime.  Its nature must have a particular significance in determining the appropriate punishment.

1. That exercise has caused me great anxiety. In the end, it seems to me that you should serve a term of 18 years' imprisonment. I fix a non-parole period of 13 years. I declare pursuant to s.18(4) of the Sentencing Act 1991 that you have already served a period of 545 days in custody and I direct that this fact be entered in the records of the Court.

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