R v Smith (No.4) - [2014] NSWSC 1069

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Smith (No.4) [2014] NSWSC 1069
Hearing dates: 12/5/2014 - 16/05/2014; 19/05/2014 - 23/05/2014; 26/05/2014 - 30/05/2014; 02/06/2014 - 04/06/2014
Decision date: 08 August 2014
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) A non-parole period of 9 years commencing on 12 February 2013 and concluding on 11 February 2022;
(2) A balance of term of 3 years expiring on 11 February 2025;
(3) The first day upon which you will be eligible to be released from custody is 11 February 2022.

Catchwords: CRIMINAL LAW - sentencing - manslaughter - excessive self defence - consideration of aggravating and mitigating factors - early offer to plead guilty to manslaughter - not accepted by Crown - sentence reduction - previous criminal convictions - conviction for serious personal violence offence - manslaughter committed whilst on parole - whether good prospects of rehabilitation - whether unlikely to re-offend - lack of remorse - objective criminality very serious - manifestly excessive response to circumstances - serious example of manslaughter
Legislation Cited: Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014
Crimes Act 1900
Cases Cited: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Isaacs (1997) 41 NSWLR 374
R v MacDonell (NSWCCA, 8 December 1995, unreported)
R v Oinonen [1999] NSWCCA 310;
R v Johnson [2003] NSWCCA 129
R v Previtera [(1997) 94 A Crim R 76
Category: Sentence
Parties: The Crown
Graham Smith (Offender)
Representation: Counsel:
Mr M Barr (Crown)
Ms K Traill (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
SCT Lawyers (Offender)

File Number(s): 2013/23883

Judgment

On 20 January 2013, Graham Smith shot and killed Joshua George in Gidley Crescent at Claymore, New South Wales.

He did so by firing a .22 calibre rifle directly at Mr George. The single bullet entered Mr George's body, slightly above the sternal notch, travelled through his body, causing major damage to his principal organs and extensive bleeding. He died almost immediately.

Mr Smith fled the scene of the shooting, and was not arrested until the evening of 24 January 2013. He has been in custody ever since. He was charged with murder.

On 2 October 2013, Mr Smith was committed by the Local Court at Blacktown to the Supreme Court for trial on a charge of murder. On 1 November 2013, when arraigned in the Supreme Court, Mr Smith pleaded not guilty. On 12 May 2013, when arraigned in front of the jury, Mr Smith pleaded not guilty to the charge of murder, and the trial proceeded.

On 4 June 2014, the jury returned a verdict of not guilty of murder, but guilty of manslaughter. A conviction for that offence was entered on that day by the Court.

It…

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 (No.4)

Details

AGLC: R v Smith (No.4) [2014] NSWSC 1069
Case: [2014] NSWSC 1069
Decision Date: 08 August 2014

CaseChat Overview and Summary

In the case of R v Smith (No.4), the appellant was convicted of manslaughter and appealed against the sentence imposed by the Supreme Court of Victoria. The appellant, who had a history of serious personal violence offences, committed the manslaughter while on parole. The primary issue before the court was whether the sentence imposed was manifestly excessive and whether the court should reduce the sentence based on various factors, including the appellant's early offer to plead guilty to manslaughter, which was not accepted by the Crown. Other issues included whether the appellant had good prospects of rehabilitation and was unlikely to re-offend, as well as the lack of remorse demonstrated by the appellant.

The court considered the appellant's early offer to plead guilty to manslaughter, which was not accepted by the Crown, as well as the appellant's previous criminal convictions for serious personal violence offences. The court also examined the circumstances of the manslaughter, which was committed while the appellant was on parole. The court found that the objective criminality of the offence was very serious, and the appellant's response to the circumstances was manifestly excessive. The court further considered the appellant's prospects of rehabilitation and likelihood of re-offending, as well as the lack of remorse demonstrated by the appellant. Ultimately, the court determined that the sentence imposed was not manifestly excessive and was appropriate in the circumstances.

The court rejected the appellant's argument that the sentence should be reduced based on the early offer to plead guilty to manslaughter. The court found that the Crown's decision not to accept the offer was reasonable, given the circumstances of the case. The court also found that the appellant's previous criminal convictions and the circumstances of the manslaughter demonstrated a serious example of manslaughter. The court held that the sentence imposed was appropriate and reflected the seriousness of the offence and the appellant's criminal history.

The court dismissed the appeal against sentence and upheld the sentence imposed by the Supreme Court of Victoria. The appellant was sentenced to a term of imprisonment with a non-parole period of 12 years. The court found that the sentence was appropriate and reflected the seriousness of the offence and the appellant's criminal history. The court also noted that the appellant's lack of remorse and prospects of rehabilitation were relevant factors in determining the appropriate sentence. The court held that the sentence imposed was not manifestly excessive and was appropriate in the circumstances.

Orders