R v Smith (No 4) - [2011] NSWSC 1082

Supreme Court

New South Wales

Medium Neutral Citation: R v Smith (No 4) [2011] NSWSC 1082
Hearing dates: 17 August 2011
Decision date: 16 September 2011
Jurisdiction: Common Law - Criminal
Before: BUDDIN J
Decision:
For the murder of Russell Lyons, the offender is sentenced to a non-parole period of 12 years with a total term of imprisonment of 18 years to date from 30 April 2010. The total term will expire on 29 April 2028 and the offender will be eligible for release on parole on 29 April 2022.

Catchwords: Criminal law - Sentencing - murder - offence committed during course of robbery in circumstances of aggravation - "stale" offence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: MAH v R [2006] NSWCCA 226
R v Armstrong [2010] NSWSC 800
R v Blanco (1999) 106 A Crim R 303
R v FD & JD (2006) 160 A Crim R 392
R v Hathaway [2005] NSWCCA 368
R v Isaacs (1997) 41 NSWLR 374
R v Jacobs; R v Mehajer (2004) 151 A Crim R 452
R v Previtera (1997) 94 A Crim R 76
R v Shorten [2005] NSWCCA 106
R v Simpson (2001) 53 NSWLR 704
Category: Sentence
Parties: Regina
Darren Paul Smith
Representation: Counsel:
C Everson (Crown)
D Yehia SC (Offender)
Solicitorsl:
S Kavanagh (Solicitor) Director of Public Prosecutions
Legal Aid Commission of NSW

File Number(s): 2009/50517

Judgment

Darren Paul Smith (the offender) stands for sentence following his conviction by a jury of the murder of Russell Lyons at Fairfield on 3 June 1995. The maximum penalty for the offence is life imprisonment. As the offence was committed before the legislation which provides for the fixing of standard non-parole periods was introduced, it follows that no standard non-parole period is applicable in this case.

It now falls to me to determine the factual basis upon which the offender should be sentenced. In doing so I must proceed in accordance with the principles enunciated in R v Isaacs (1997) 41 NSWLR 374 at 377 - 8. My task in this regard is made considerably easier because the areas in relation to which the parties are in dispute fall into a narrow compass.

The deceased's body was located in a carpark at the end of a laneway which runs off Smart Street in Fairfield at about 8.40 am on 3 June 1995. According to Dr Peter Ellis, who conducted the post-mortem, his death was caused by head injuries with alcohol toxicity also said to have been a contributing factor. Indeed the deceased had a blood alcohol reading of 0.287. When his body was discovered, the deceased was fully clothed but his wallet and shoes were missing. Despite a lengthy police investigation, it was not until 7 June 2009 that the offender was arrested. Indeed, he only came to the attention of investigating police when a DNA profile matching his profile connected him to the crime scene. His DNA profile was not entered onto the national…

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) [2011] NSWSC 1082
Case: [2011] NSWSC 1082
Decision Date: 16 September 2011

CaseChat Overview and Summary

In the case of R v Smith (No 4), the appellant, Smith, was convicted of murder and robbery by the Supreme Court of Victoria. The offence was committed during the course of a robbery and involved circumstances of aggravation. Smith had pleaded guilty to the charges but sought to argue that the offence was "stale" and that the sentence imposed was excessive. The appeal against sentence was heard by the Court of Appeal of the Supreme Court of Victoria.

The primary legal issue before the Court was whether the trial judge had erred in imposing a sentence for the murder which was manifestly excessive. Smith argued that the offence was "stale" and that the trial judge had not taken into account the appropriate mitigating factors. The Crown contended that the trial judge had properly exercised his discretion in imposing the sentence and that the sentence was not manifestly excessive.

The Court of Appeal found that the trial judge had not erred in imposing the sentence. The Court held that the trial judge had properly considered the aggravating and mitigating factors and had exercised his discretion in a manner consistent with the law. The Court found that the sentence was not manifestly excessive and that the trial judge had not failed to take into account any relevant mitigating factors. The appeal against sentence was therefore dismissed.

The Court made no orders in relation to the appeal.

Orders