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

- 11 -

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 that street and parked it close to the hotel's back driveway, the hotel being on the corner of Rofe Street and Parramatta Road. According to Mr Wigney, who gave evidence for the Crown at the prisoner's trial, it was decided between the prisoner and himself that he, Mr Wigney, would carry the gun. However, according to Mr Wigney, it was the prisoner who actually loaded the gun with ammunition, having first used a rag to wipe the ammunition and the gun itself clean of fingerprints.

7 After a degree of reconnoitering and further conversation Mr Wigney and the prisoner entered the hotel through the front door facing Parramatta Road. Mr Wigney was carrying the gun, and there is a suggestion that the prisoner was carrying a knife. Although I am not satisfied about that beyond reasonable doubt. A security guard seated near the front entrance was threatened with the gun by Mr Wigney, as were several patrons further inside. Whilst he sought to restrain the patrons and the staff at gunpoint the prisoner entered the bar area and proceeded to remove a substantial sum of money from three tills located there.

8 After this situation had continued for a time a female patron held at the point of Mr Wigney's gun courageously commenced to remonstrate with him in blunt and extremely appropriate language. She then advanced towards him undeterred by his threats to shoot her. Whilst his attention was engaged by this patron, another patron, a Mr Cadden, struck Mr Wigney on the head with a bar stool. At that point the prisoner was still in the bar area filling a plastic bag with money from the tills.

9 Mr Wigney was knocked off balance by the blow from the stool, and in that state was tackled by Mr Cadden together with the woman who had been remonstrating with him and the victim, Mr Mark Jackson, who was employed at the hotel but was then off duty. Mr Wigney, attempting to escape, was temporarily at least able to evade his brave assailants and headed towards the front door pursued by those seeking to apprehend him. He was still carrying the gun but its safety catch, according to his evidence, was engaged. While this was happening it seems that the prisoner decided to depart the scene, and he left the hotel by the rear entrance.

10 Those including Mr Jackson, who followed Mr Wigney through the front door of the hotel, scuffled with him on the footpath outside. During the scuffle Mr Wigney disengaged the safety catch of the gun, cocked it and fired twice towards his attackers. The first shot struck the roof of the hotel and deflected into a window but the second fatally wounded Mr Jackson. At that time the prisoner was not in the vicinity, and indeed it seems clear that he fled the area as soon as he left through the back-door of the hotel.

11 The Crown, therefore, necessarily relied on what is commonly known as 'felony murder' within s18(1) of the Crimes Act. Namely that the act causing the death charged was done in an attempt to commit, or during, or immediately after the commission by the accused or some accomplice with him or her of a crime punishable by imprisonment for life or 25 years.

12 During the course of the trial the prisoner formally admitted that he participated in the robbery of the Taverners Hill Hotel on 19 July 2001, and that Shane Wigney had in his possession the pistol produced in evidence. The issue for the jury, in accordance with R v Sharah (1992) 30 NSWLR 92 was whether the Crown beyond reasonable doubt, established knowledge by the prisoner that the gun carried by Mr Wigney was loaded and, therefore, constituted a dangerous weapon within s97(2) of the Crimes Act, and that the discharge of the gun by Mr Wigney during or immediately after the robbery was a contingency which the prisoner had in mind whether or not the gun was fired intentionally, and whether or not in furtherance of the common unlawful purpose. The jury's verdict indicated that those two elements were established beyond reasonable doubt.

13 The co-offender Mr Wigney was sentenced by Adams J on 3 December 2003 for a series of crimes to which he pleaded guilty, including the murder of Mr Jackson. He was born on 5 March, 1965 and had a criminal record described by Adams J as "a bad one". It included offences involving violence and firearms offences. His Honour noted that he was a long-term user of illicit drugs, and was affected by hepatitis.

14 In amelioration of sentence Adams J took into account pleas of guilty, Mr Wigney's offer to testify at the trial of the present prisoner, and the fact that as a consequence his own custody was likely to be spent on protection. In respect of the charge of murder Adams J applied a discount of 35 percent for the combined factors of the utilitarian value of the plea of guilty and the assistance to authority evidenced by the offer to testify at the trial of the prisoner. On the charge of murder Adams J sentenced Mr Wigney to imprisonment for a term of 13 years and 8 months.

15 The Crown appealed, asserting the inadequacy of the sentences imposed upon Mr Wigney, including the sentence for the murder of Mr Jackson. The Court of Criminal Appeal, (Grove, Dunford, and Howie JJ), on 2 June 2004 upheld the appeal. The Court concluded from the reasoning of Adams J that his Honour's starting point for the murder sentence was a head sentence of 21 years.

16 In upholding the appeal the Court of Criminal Appeal held that for the crime of murder committed by Mr Wigney, aggravated as it was by being committed whilst he was on parole, an assessment of a head sentence of 25 years should be made. Such assessment would take into account, "the restraint applicable to re-sentence following successful Crown appeal".

17 Categorising the discount of 35 percent as "extremely generous" the Court of Criminal Appeal nonetheless did not interfere with the sentencing judge's exercise of discretion on that aspect. Taking account of the discount, it concluded that an appropriate head sentence would be imprisonment for 16 years and 3 months.

18 The present prisoner, Mr Smale, was born on 24 June 1958, and is thus now 47 years of age. He has extensive criminal antecedents which comprise some 40 pages. They commenced with proceedings in the Minda Children's Court in August 1971 in relation to a charge of break enter and steal. It would seem that he spent most of the years from 1973 to 1976 in an institution.

19 On 29 June 1977 he received a custodial sentence in Parramatta Court of Petty Sessions and since then on numerous occasions has been before Courts of Petty Sessions, the Local Court and the District Court for a variety of offences including serious motor vehicle offences, offences of dishonesty and drug related matters. However, there is nothing in his criminal antecedents involving violence or firearms, except a conviction for what must have been a relatively minor assault under s61 of the Crimes Act at Sutherland Petty Sessions as long ago as September 1980, which resulted in a fine of $200.

20 At the time of the offence, however, he was on conditional liberty, being the subject of a suspended sentence of imprisonment for 2 years imposed in Gosford District Court on 16 March 2001 for supplying a prohibited drug, and a bond to be of good behaviour. On 11 October 2001, upon proof of breach of that bond the suspended sentence was ordered to take effect. It commenced on 18 September 2001 and concluded on 17 September 2003. A non-parole period of 18 months ended on 17 March 2003.

21 The prisoner was arrested in respect of the matter for which he is before me on 18 September 2001, and has been in custody ever since bail refused. In part, as I have indicated, that custody is attributable to the non-parole portion of the sentence imposed in the Gosford District Court on 11 October 2001.

22 He gave evidence at the sentencing hearing in which he said that at the time of the offence he was using heroin and cocaine on a daily basis. As a consequence he said that in effect his capacity to reason and understand the consequences of his actions was "blurred". As to the offence itself, he said that when the scuffle with Mr Wigney commenced, he ran out the back-door of the hotel, entered the car which had been stolen for the purpose of the robbery and drove away. He said that he was not anywhere near the hotel when Mr Jackson was killed.

23 He expressed from the witness box remorse and contrition for his conduct, and gave a direct apology to the relatives of Mr Jackson who were present. I accept, particularly having regard to the absence of crimes of violence on the prisoner's record of antecedents, that he is extremely remorseful for the part he played in the tragic death of Mr Jackson.

24 Since entering prison he said that he has been drug free and has done what he can to rehabilitate himself by attending education classes. He has been unable to complete courses, however, because as a remand or unsentenced prisoner he has been subjected to frequent internal movement within the prison system.

25 He said that he left school in 5th class when he was about 11, and for a time worked in a butcher shop. He started taking drugs, mainly heroin, about 1985 and became drug addicted. This addiction continued until he was arrested in September 2001. He has since experienced severe withdrawal symptoms.

26 He acknowledged that he faces a lengthy sentence of imprisonment, and said that during it he will do his best to rehabilitate himself fully, "so that no-one else would be put in the position when my actions lead up to somebody else being hurt or killed".

27 The pre-sentence report tendered in evidence of Ms Karen Langdon dated 12 August 2005 said that the prisoner has been known to the Probation and Parole Service since 1975, and that he has been subject to seven parole orders; 1979, 1984, 1985, 1987, 1989, 1992 and 1995. All of them except the last led to breach action because of subsequent offences. Miss Langdon noted that his response to supervision was unsatisfactory in that he failed to report as directed, and failed to comply with the orders requirements. Ongoing illicit drug use also featured.

28 She further reported that the prisoner had been the subject of three Community Service Orders, two of which were breached due to a failure to complete the set hours, and that he was subjected to three periodic detention orders in 1996, 1997, and 2000, the first two of which were cancelled.

29 As to the prisoner's background and personal situation, Miss Langdon said:

“The offender described his upbringing as disrupted. He stated that his parents separated for some time when he was about 10 years old and that prior to their separation, and following their reconciliation, his parents would frequently argue. He stated that neither parents had any apparent substance abuse, mental health violence issues. Mr Smale also recalled that he and his older brother, but not their remaining four siblings, were placed in a boys' home at around age 11 or 12 due to their mother's illness at the time. The offender stated his placement caused him considerable distress as he believed extended family members had been available to care for him.
Mr Smale stated he left home in early adolescence but believed this coincided with his incarceration in juvenile detention. He stated that his parents have remained supportive of him and that he has a good rapport with each of his five siblings. Discussions with his parents indicate they continue to care for the offender and, despite his mother currently experiencing illness, they are willing to provide him with whatever practical or support they are able to.
The offender stated he entered into a relationship with his current partner at aged 16, and they have an adult son from this union. Discussions with Mr Smale and perusal of Service records indicate the relationship has been characterised by both parties' ongoing illicit drug use. Mr Smale's partner is known to this Service and he stated his son is currently serving a custodial sentence. The offender reported reservations about resuming residence with his partner upon his eventual release and stated he believed that, although committed to his partner, their relationship leaves him vulnerable to resumption of intensive substance abuse. This sediment was echoed by Mr Smale's mother who attributed much of Mr Smale's offending and elicit drug use to his relationship with his partner.”

30 Regarding the prisoner's progress in custody, perhaps somewhat at odds with his sworn testimony, Miss Langdon reported:

“Mr Smale has been held in custody since 19 September 2001. In that time he has incurred three internal misconduct charges: On 11 May 2002 he was charged with Smoke Non-Smoke area and was cautioned. On 29 December 2003 he was charged with Fail Urine Test and was taken off contact visits for 42 days. On 12 May 2004 he was charged with possess drug and cautioned.”

31 The aggravating factor listed in s21(A)(2) of the Crimes (Sentencing Procedure) Act which may be taken to apply to this case, being factors that are not elements of the crime itself, are (d) the record of previous convictions; and (j), the offence was committed while the prisoner was on conditional liberty. As to the former, as I have indicated, although the criminal antecedents of the prisoner are extensive, it is noteworthy that apart from one charge of common assault there is nothing involving violence in his record.

32 As to the mitigating factors listed in s21(A)(3) I am satisfied that the prisoner holds genuine remorse for the death of Mr Jackson. Although he pleaded not guilty upon arraignment for murder, he had previously pleaded guilty to the offence of robbery, and it seems clear had made known to the Crown before the trial commenced, that he would admit robbery in company with Mr Wigney.

33 This had the utilitarian benefit of shortening the trial and is a matter, which I think may result in a lesser penalty, at least pursuant to s22(A) of the Crime (Sentencing Procedure) Act. In the circumstances, I think it would be appropriate that this pre-trial disclosure should attract a discount of the order of 10 percent from the sentence which would otherwise be appropriate.

34 Although too much weight should not be given, having regard to his record, to the prisoner's claim that during his imprisonment he will take steps to rehabilitate himself completely, I think, in light of his evidence, that it is possible to express guarded optimism. Obviously any prospect of rehabilitation is completely dependent upon him overcoming his addiction to illegal substances. It may be that he can achieve this, in which case, upon his eventual release into the community he will be able to lead a useful and law-abiding life.

35 In evidence before me were victim impact statements from relatives of Mr Jackson, who was only 34 when he met his death. He met it while courageously attempting to apprehend a man in the course of robbing his employer's business. A man who, as it turned out, was a vicious killer. As Adams J pointed out in his remarks when sentencing Mr Wigney, Mr Jackson's loss was the community's loss. It is difficult not to be very moved by what is said in the impact statements, and I can only express the Court's deepest sympathy to his relatives. The law, of course, as explained by Adams J, does not permit me to increase or reduce the sentence because of the worth or otherwise of the victim, or because he was or was not much loved by his family and friends, as Mr Jackson obviously was.

36 I now turn to consider the criminality of the prisoner involved in the crime which he committed. Cases such as the Queen v Mills indicate that so-called 'felony murder', where there is not necessarily an intention to kill, should not, as a matter of course, be regarded as involving a lower level of culpability than where there is a proved intention. Indeed, the Crown in this case submitted that the level of the prisoner's criminality should be gathered from the fact that he was prepared to enter the Taverners Hill Hotel with Mr Wigney, knowing that Mr Wigney was armed with a loaded gun, and knowing that there was a possibility that the gun would be discharged.

37 Although there is some force in the Crown's submission, in this particular case I do not think it would be appropriate to equate the criminality of the prisoner with that of Mr Wigney. This prisoner was well away from the scene when the firearm was discharged, and I do not think that is a circumstance which can entirely be disregarded. It would of course be otherwise if he had remained and, either actively, or by other conduct implicitly encouraged the use of the firearm, as seems to have occurred in R v Sharah where the offender, with the approval of the Court of Criminal Appeal, received the same sentence of life imprisonment as was received by the co-offender who fired the fatal shot. Of course I do not seek to minimise in any way the extremely high level of criminality attributable to any offender who commits a crime involving a loaded gun.

38 The prisoner is to be sentenced in accordance with s44 of the Crimes (Sentencing Procedure) Act as it was before its repeal by Act 90 of 2002. On the basis that the starting point for the sentence imposed upon Mr Wigney should, as the Court of Criminal Appeal held, be at least imprisonment for 25 years, I am of the opinion that in this case the starting point for the sentence to be imposed upon the prisoner should be imprisonment for 20 years. Applying a discount of 10 percent, as earlier indicated, I will set the term of the sentence under s44(1)(A) at 18 years. In my opinion it is not appropriate to find special circumstances in this case and, accordingly I will set a non-parole period of 13 years and 6 months. In all the circumstances I will backdate the commencement of the sentence to 18 March 2002.

39 The formal orders of the Court, therefore, are:

oOo