Regina v Garry Smale - [2005] NSWSC 903

CITATION:
Regina v Garry Smale [2005] NSWSC 903

HEARING DATE(S): 21,22,23,24,25 February 2005
20/05/05
26/0805

JUDGMENT DATE :

26 August 2005

JUDGMENT OF:
Patten AJ at 1

DECISION:
See paragraph 39.

LEGISLATION CITED:
Crimes Act 1900
Crimes(Sentencing Procedure) Act

PARTIES:
Regina
Garry Anthony Smale

FILE NUMBER(S):
SC 2002/95

COUNSEL:
Mr M Barr - Crown
Mr R Mc Crudden - Defendant

SOLICITORS:
T. Roberts-DPP-Crown
Bilias & Associates-Defendant

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT JUDICIAL OFFICER :
Davidson AJ

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

PATTEN AJ

26 AUGUST 2005

NO: 2002 OF 1995

REGINA v GARRY ANTHONY SMALE

SENTENCE

1 HIS HONOUR: The prisoner, Garry Anthony Smale, pleaded not guilty when arraigned before me on 21 February 2005 to the charge that on 19 July 2001 at Leichhardt he did murder Mark Jackson. A jury was empanelled, and on 25 February it returned a verdict of guilty. I heard sentencing submissions on May 19 and 12 August 2005, and he stands for sentence today.

2 For the most part the facts were not in dispute. It appears that as at 19 July 2001 the prisoner was living in a residential flat at Carringbah, and temporarily staying with him was one Shane John Wigney. Several other people, including a Mr Andrew Riach were also staying in the flat. Mr Wigney brought to the flat a gun which he had acquired sometime previously.

3 On the afternoon of 18 July 2001 the prisoner, Mr Wigney, and possibly Mr Riach discussed plans to commit a crime that night. Initially their object was a hotel at Burwood, and they set out late in the evening with the intention to rob that hotel in a vehicle belonging to the prisoner. They were armed with the gun and carried implements suitable for stealing motor vehicles. They were wearing, or had with them dark clothing and balaclavas or beanies to obscure their faces.

4 On route to the hotel at Burwood the prisoner left the others for a short time while he stole a car to be used in the robbery. However, when they arrived at the hotel in that car they found that it was closed. A decision was made to find another target. They dumped the stolen car at Petersham and went to the house of a Mr Kracker in Crystal Street. At that stage, as it seems, Mr Riach became ill and did not participate further in the unlawful activities that night of the prisoner and Mr Wigney.

5 The prisoner and Mr Wigney then decided to rob the Taverners Hill Hotel, which they knew was open as they had just driven past it. For that purpose they decided to steal another car. They left the prisoner's car parked in a Petersham street, taking with them car stealing implements and the gun with ammunition.

6 After several unsuccessful attempts Mr Wigney managed to steal a car in Rofe Street. They backed the car up…

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 Regina v Garry Smale

Details

AGLC: Regina v Garry Smale [2005] NSWSC 903
Case: [2005] NSWSC 903
Decision Date: 26 August 2005

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Garry Anthony Smale was found guilty of murder by a jury after a trial. The primary legal issue before the court was whether Smale, despite not being present when the fatal shot was fired, could be held responsible for the murder under the principle of 'felony murder' as outlined in s18(1) of the Crimes Act. The jury concluded that Smale was aware that the gun carried by his co-offender, Shane Wigney, was loaded and dangerous, and that the discharge of the gun was a foreseeable consequence of their criminal enterprise.

The court, in considering the appropriate sentence, took into account the extensive criminal history of Smale, his genuine remorse, and his expressed intent to rehabilitate. Despite his criminal past, Smale's record did not include prior violent or firearms offences. The court accepted Smale's remorse and his claim that he fled the scene when the shot was fired. The judge applied a discount to the sentence for Smale's early guilty plea and cooperation with the Crown. Given the severity of the crime and Smale's role, the court determined an appropriate starting point for the sentence to be 20 years, reduced to 18 years after the discount. The non-parole period was set at 13 years and 6 months, with the sentence backdated to the date of Smale's arrest.

The final orders of the court were that Smale be imprisoned for 18 years with a non-parole period of 13 years and 6 months, backdated to 18 March 2002.

Orders