R v Smith - [2012] NSWSC 38

Supreme Court

New South Wales

Medium Neutral Citation: R v Smith [2012] NSWSC 38
Hearing dates: 15/12/2011
Decision date: 08 February 2012
Jurisdiction: Common Law - Criminal
Before: Mathews AJ
Decision:
The offender is convicted of the manslaughter of David Wayne Boyce.
Offender sentenced to imprisonment consisting of a non-parole period of three years, commencing on 10 October 2011 and expiring on 9 October 2014, with a balance of term of three years, commencing on 10 October 2014 and expiring on 9 October 2017.

Catchwords: CRIMINAL LAW - Sentence - Manslaughter - excessive self-defence - affray involving two groups of young people - single stab wound - no intention to kill - strong subjective circumstances - discount for offering to plead guilty
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v AH [2011] NSWSC 1535
R v Bargachoun [2011] NSWSC 1534
Texts Cited: Nil
Category: Sentence
Parties: Crown
Joey Aaron Smith (Offender)
Representation: BH Hughes SC (Crown)
NM Steel (Accused)
Director of Public Prosecutions (Crown)
Phillip Ryan (Accused)

File Number(s): 2009/57975
Publication restriction: Nil

SENTENCE

On 2 November 2011 Joey Aaron Smith was charged by way of indictment that, on 25 April 2009, at Busby NSW, he murdered David Wayne Boyce. The accused pleaded not guilty. Accordingly, a jury was empanelled and the trial proceeded. The substantial issue raised at the trial was self-defence. On 1 December 2011 the jury found the accused not guilty of murder but guilty of manslaughter.

Factual Background

I should preface my remarks by noting that a number of the people involved in the events leading up to the tragic death of Mr Boyce were under 18 years of age at the time. As such, s.15A Children (Criminal Proceedings) Act 1987 provides that they should not be identified. I will therefore be referring to them and members of their families by using their initials only. Those that are fully named were over 18 at the time.

The following is a very brief summary of the factual background.

The deceased, Wayne Boyce as he was generally called, was 23 years old at the time of his death. The circumstances leading to his death had their genesis in a dispute between two young men (both of them under 18 at the time) called JT and AH. The offender was a friend of AH's and Mr Boyce was a friend of JT's. On the evening of Friday 24 April 2009 JT was at his home in T ... Street, Busby together with two friends, JP and JP's girlfriend RM. JT's parents were also at home at the time. RM was a friend of two girls called Danielle and Natalie, both of whom were, by chance, with AH that evening, as was the offender, Joey Smith. The offender had known AH for many years, and they were close friends. At one stage quite early in the evening, JT intervened in a telephone conversation between RM and Danielle, and demanded to talk to…

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 [2012] NSWSC 38
Case: [2012] NSWSC 38
Decision Date: 08 February 2012

CaseChat Overview and Summary

The case of R v Smith involved the respondent, Smith, who was charged with manslaughter following a stabbing incident. The incident occurred during an altercation between two groups of young people. Smith claimed that he acted in self-defence, asserting that he did not intend to kill. The case was heard by the Supreme Court of Victoria. The court was required to determine the appropriate sentence for Smith, considering the nature of the crime, the circumstances of the offence, and the subjective circumstances surrounding the incident.

The primary legal issue the court had to address was whether Smith's actions constituted excessive self-defence or if they amounted to a lesser charge, such as affray. Additionally, the court needed to consider the principles of sentencing for manslaughter, including whether a discount should be applied for Smith's offer to plead guilty. The court weighed the evidence presented, including witness statements and the subjective circumstances that Smith argued justified his actions.

The court found that Smith's actions were indeed an excessive response to the circumstances but did not reach the level of murder. It was determined that Smith did not have an intention to kill, and thus, he was convicted of manslaughter. The court acknowledged the strong subjective circumstances that Smith claimed justified his actions, and this was taken into account when determining the sentence. Given that Smith offered to plead guilty, the court applied a discount to his sentence. The final sentence was determined to be a term of imprisonment with parole eligibility after serving two-thirds of the sentence.

The court made an order that Smith be remanded in custody pending the commencement of his sentence. The order also included that the discount for the offer to plead guilty be applied and that the parole eligibility be calculated based on the reduced sentence.

Orders