R v Smith - [2004] VSC 134

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1402 of 2004

THE QUEEN

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:

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.

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.

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.

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.

While living with Ms Onefretchook, you had steady but 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 [2004] VSC 134
Case: [2004] VSC 134
Decision Date: 7 April 2004

CaseChat Overview and Summary

The case of R v Smith was heard in the Supreme Court, where the defendant, Smith, was charged with the murder of an individual. Smith attacked the deceased using a skateboard, stabbing him twice, and inflicting knife wounds and a fatal crushing injury to the neck. Smith claimed provocation, alleging that the deceased had made homosexual advances towards him. The jury rejected the defence of provocation, leading to the need for the court to determine the appropriate sentence.

The court was tasked with balancing the severity of the crime with mitigating factors, including Smith's history of bipolar disorder, his failure to take prescribed medication, and his intoxication at the time of the offence. The youth of the offender and the effects of his mental health condition were also considered. Additionally, the court had to take into account Smith’s prior convictions for violent behaviour when intoxicated. The court had to weigh these factors against the gravity of the crime and the need for deterrence and retribution.

In its decision, the court recognised the brutal nature of the crime but also considered Smith's mental health issues and intoxication. Despite these mitigating factors, the severity of the attack and Smith's prior violent conduct were significant aggravating factors. The court ultimately sentenced Smith to a total of 18 years' imprisonment, with a non-parole period of 13 years. This sentence reflected the court's need to balance justice for the victim with the need to address Smith's personal circumstances.

Orders