Regina v Garry Anthony Smale (2)

[2005] NSWSC 923

CITATION:	Regina v Garry Anthony Smale (2) [2005] NSWSC 923
JUDGMENT DATE :	1 September 2005
JUDGMENT OF:	Patten AJ
DECISION:	See paragraph 12

PARTIES:	Regina Garry Anthony Smale
FILE NUMBER(S):	SC 2002/95
COUNSEL:	Mr M Barr - Crown Mr R McCrudden - Defendant
SOLICITORS:	T. Roberts - DPP - Crown Bilias & Associates - Defendant

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT JUDICIAL OFFICER :	Acting Justice Davidson

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Patten AJ

1 September 2005

No: 2002/95 - Regina v Garry Anthony Smale (2)

JUDGMENT

1 HIS HONOUR: The prisoner, Garry Anthony Smale, pleaded guilty before Acting Justice Davidson on 13 September last year to the charge that, on 19 July 2001, at Leichhardt, being then in company with Shane John Wigney, and armed with a dangerous weapon, namely a pistol, he did rob Darren John Phillip of $4,800 in money the property of Rofe Management Pty Limited trading as Taverners Hill Hotel.

2 On the same occasion, that is, on 13 September last year, he pleaded not guilty to the charge of murder of Mr Mark Jackson. The murder trial ultimately was aborted, but as it seems, the prisoner was remanded for sentence in relation to the charge of robbery whilst armed with a dangerous weapon to which he pleaded guilty. He was tried before me on the charge of murder in February this year and was found guilty.

3 Last Friday I sentenced him in respect of that charge but, unfortunately, a matter for which I express my apologies to Mr Smale, he was not then sentenced in respect of the charge of robbery whilst armed with a dangerous weapon.

4 The murder and the robbery, whilst armed with a dangerous weapon, occurred on the same occasion and it is, I think, unnecessary for me to set out the facts in any detail as they are set out in the reasons which I gave on 26 August.

5 Shortly, late at night, the prisoner, in company with Mr Wigney, who was armed with a loaded gun, entered the Taverners Hill Hotel at the corner of Parramatta Road and Rofe Street, Petersham. Whilst Mr Wigney held patrons and staff at the point of a gun, the present prisoner took and departed with the money described in the charge from the hotel tills.

6 The death of the victim, Mr Jackson, occurred at a time when the present prisoner had fled the premises, but, nonetheless, he was found guilty of what is known as felony murder under section 18 of the Crimes Act.

7 In relation to the sentencing of the prisoner for robbery with a dangerous weapon, it is appropriate that I record his lengthy criminal antecedents referred to in more detail in my judgment last Friday. However, as I intended to indicate then, and I indicate now, I did not intend to increase his sentence by reason of those criminal antecedents. I pointed out that, apart from one apparently very minor matter, there was nothing involving violence or firearms upon his record.

8 In the prisoner's favour is his plea of guilty, for which he is certainly entitled to a discount for its utilitarian value, although it was given, as it appears, at a relevantly late stage. However, I think a discount of the order of 15 per cent would be appropriate for the utilitarian value of it.

9 The facts relating to the prisoner's background and personal situation are set forth in the judgment which I gave last Friday. It is obvious that much, if not all, of his criminal record is related to his longstanding addiction to illegal substances.

10 The offence of robbery, armed with a dangerous weapon, especially a loaded gun, is, of course, a very serious crime indeed, as evidenced by the fact that the maximum penalty under section 97(2) of the Crimes Act is imprisonment for 25 years.

11 In this matter, after allowing for the discount in respect of the plea of guilty to which I referred, I am of the opinion that an appropriate head sentence would be imprisonment for a period of 13 years. I would propose to sentence the prisoner to imprisonment for that term with a non parole period in accordance with the statute of nine years and nine months. Accordingly, I make these orders. Stand up, please, Mr Smale.

12 The formal orders of the Court therefore, are:

1. The prisoner is convicted of the charge of robbery whilst armed with a dangerous weapon.

2. The prisoner is sentenced to imprisonment for a term of 13 years to date from 18 March 2002 and expire on 17 March 2015.

3. I set a non-parole period of nine years and nine months. The prisoner will be eligible to be considered for admission to parole, subject to any other sentence to which he is then subject, on 17 December 2011.

oOo