Re Smith, Jamie Lee

[1998] TASSC 34

34/1998

PARTIES:  SMITH, Jamie Leigh, Re

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  C 187/1994
DELIVERED:  24 April 1998
HEARING DATE/S:  2 April 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Application to re-sentence murderer - Murder of youthful fellow resident at homeless shelter without motive.

Aust Dig Criminal Law [911]

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Non-parole period or minimum term - Minimum term during which period prisoner not eligible for parole.

Veen v R [No 2] (1987 - 1988) 164 CLR 465, followed.
Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 (Tas).
Aust Dig Criminal Law [911]

REPRESENTATION:

Counsel:
           Applicant:  G Meyer
           Crown:  F C Neasey
Solicitors:
           Applicant:  Milton and Meyer
           Crown:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  34/1998
Number of pages:  3

Serial No 34/1998
File No C 187/1994

IN THE MATTER OF
THE CRIMINAL CODE AMENDMENT (LIFE PRISONERS
AND DANGEROUS CRIMINALS) ACT 1994 and
IN THE MATTER OF
JAMIE LEIGH SMITH

REASONS FOR JUDGMENT  COX CJ

24 April 1998

The applicant was, on 15 November 1994, sentenced to imprisonment for the term of his natural life for the murder of a 17 year old youth.  At that time such sentence was mandatory.  The murder was committed on 2 April 1994 and the applicant taken into custody on 6 April 1994.  He now applies to be resentenced pursuant to the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994, s8(1).

The applicant was indicted with one Troy Philpott for the murder of Wayne Hodgen, a youth who, like the two accused, had been resident for a short time at an Anglicare Shelter in Hobart.  On the first day of the trial, the applicant pleaded guilty.  Thereafter the trial of Philpott proceeded and culminated in a finding of his guilt and the mandatory sentence was likewise passed on him.  The Crown case against them was that, irritated by Hodgen's mannerisms which apparently included poking and pushing at the accuseds' body with his fingers and occasionally calling them by indecent and abusive names like "silly cunt", they had decided to kill him.  This decision was reached at the Shelter at about 6pm on 2 April in the presence of two other youths, Lee and Malecki.  Later that evening these four youths and Hodgen went to a nearby park where all consumed alcohol.  About 8pm Lee and Malecki returned to the Shelter, leaving the applicant and Philpott with Hodgen in the park, drinking.  About an hour and a half later the two prisoners went to a nearby shop to procure some cigarette papers and on the way had a further discussion about killing Hodgen, agreeing to do so on their return to the park.  There they found Hodgen sitting on a park bench, whereupon Philpott attempted to strangle him with both hands.  While Philpott held Hodgen's throat, the applicant unsuccessfully tried to cut it with a bread knife he had brought with him from the Shelter.  The applicant then broke off the wooden arm of another bench and, with Philpott still holding Hodgen by the throat, hit him over the head with it approximately three times, causing him to slump over the bench.  Philpott then took hold of the wooden arm and hit Hodgen over the head.  The result of all these attacks was that Hodgen suffered a fractured skull and a severe injury to the brain and died either during the attack or shortly thereafter.  The two prisoners, leaving him there, returned to the Shelter, collected their belongings and walked to a nearby service station where they telephoned for a taxi.  They travelled in it to Kempton, where they stayed overnight in a hotel, and the following day hitch-hiked to Launceston and thence travelled to Burnie.  On the night of Monday 4 April they were driven by friends to Rocky Cape where they spent two nights camping out in the bush and in the evening of 6 April they were arrested by police on the road near Rocky Cape.  They had, by that time, decided to go to the police and give themselves up.  At interview, the applicant made admissions of his involvement consistent with the facts stated above.

It was the Crown case that both prisoners were jointly responsible for killing the deceased as part of a premeditated joint enterprise and that all the blows to his head with the wooden arm of the bench were struck with the intention of killing him.  While the applicant was no doubt affected by the consumption of a considerable amount of alcohol and had also taken drugs, no question of intoxication rendering him incapable of forming the specific intention to kill arose.

Some witnesses gave statements to the effect that while in Burnie a news item concerning the death of Hodgen had appeared on television and that both prisoners had laughed about it.  The applicant disputes that this apparently callous behaviour was deliberate and claims that it was a nervous reaction which did not represent his true feelings, which were of horror and dismay at what he had done.  When the facts had been related to me by Crown counsel after his plea in November 1994 and the allocutus had been put to him, his counsel said, "I am instructed not to put anything to the court".  For present purposes, I accept the claim that the applicant's laughter was not indicative of a callous attitude to what he had done and I likewise accept that the plea of guilty and failure to proffer any excuse or explanation for his conduct is some evidence of a sense of remorse and contrition by the applicant.  Although the case against him was strong, having regard to the frankness of his admissions to the police, his plea nonetheless denied him the possibility of a lesser verdict, conceivably at the expense of his 24 year old co-accused upon whom he might have been tempted to cast the greater share of blame.

The crime, however, remains a very serious one and one which has understandably had a deep impact on the members of the victim's family.  As I said in Re Kemp 143/1997:

"Obviously the first consideration is to determine the gravity of the crime and to set a head sentence in respect of it."

In approaching this task, the sentencer must take note of the principle stated in Veen v R [No 2] (1987 - 1988) 164 CLR 465 at 478 by Mason CJ, Brennan, Dawson and Toohey JJ, namely:

"... that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v R (1987) 163 CLR 447, at pp 451 - 452."

Their Honours continued, however:

"That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness.  A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category."

This crime involved a murder where the applicant intended to cause the death of the deceased and thus fell within the Criminal Code, s157(1)(a). It was premeditated ¾ admittedly not by a lengthy period of time, the extent of the premeditation being measured in hours rather than days ¾ but nonetheless by a matter of several hours during which time the offenders had ample opportunity to abandon their plan. When the bread knife, brought by the applicant to the scene of the crime for that purpose, proved inadequate for the task, he broke off from another park bench a crude instrument with which he proceeded to club the victim in a way which led to his death while his accomplice held him down. They made no effort to resuscitate him or seek help for him, but decamped and fled to the northern end of the State. Apart from some further irritations from the deceased in the form of poking and pushing at them and calling them by uncomplimentary names, the homicide was unprovoked. What I have described as irritations were not, on my understanding of the evidence, hostile acts on the victim's part ¾ at worst they seemed to have been no more than banter. The reaction of the applicant to them was utterly disproportionate. It is, of course, possible to imagine worse cases of murder, but this involved a brutal, senseless, unprovoked, premeditated beating to death of a defenceless 17 year old victim, the worse for liquor, by two young men acting in concert. In my opinion it clearly falls within the worst category of this type of crime.

There is nothing that can be said in mitigation of the crime and little in mitigation of the offender.  He was young, being 18 years and 3 months at the time, and I am prepared to accept that he was, and is, remorseful for his actions.  His plea of guilty obviated the need to try him.  He was, however, no stranger to criminal conduct, having been convicted four months earlier of two counts of robbery, twelve counts of burglary, eight counts of stealing, two of destroying property and one of motor vehicle stealing.  For these offences he had been given six months' imprisonment, wholly suspended on condition that he should be of good behaviour for two years and should submit to the supervision of a probation officer during that period, plus 176 hours of community service.  Such mitigation as the circumstances of his youth, co-operation and remorse warrant may be given effect to in determining the time at which he may become eligible for parole for they are relevant to a determination of the minimum time which, in the sentencer's view, justice requires that the offender must serve, in all the circumstances of the offence (Power v R (1974) 131 CLR 623). They do not necessarily call for some retreat from the maximum penalty if that is otherwise called for. In my opinion that penalty should be imposed.

I have not been given any psychiatric assessment of the applicant.  I am at a loss to understand how a youth of 18, even if his sensibilities were blunted by alcohol and/or drugs, could deliberately take the life of another a few months younger than himself for so paltry a reason as that advanced by him.  Such irrationality immediately raises concern for others in the community who might cross him upon his release.  In my opinion the protection of society requires that if such an offender is released on parole, it should be a conditional release revocable for the rest of his life should he not observe the conditions of his parole.

I sentence the applicant to imprisonment for the term of his natural life and I order that he is not eligible for parole in respect of that sentence before the expiration of fifteen years from 6 April 1994, the day on which he was taken into custody.