Regina v Smith
[2009] NSWSC 1183
•6 November 2009
CITATION: REGINA v SMITH [2009] NSWSC 1183 HEARING DATE(S): 16 October 2009
JUDGMENT DATE :
6 November 2009JUDGMENT OF: Mathews AJ at 1 DECISION: I sentence you to imprisonment to be served by way of a non-parole period of four years and six months, commencing on 11 May 2009 and expiring on 10 November 2013. The balance of the term of your sentence will be two years and three months, commencing on 11 November 2013 and expiring on 10 February 2016 PARTIES: Regina
Ashley Duane SMITHFILE NUMBER(S): SC 2009/879 COUNSEL: Crown: Mr J McLennan
Offender: Mr M AustinSOLICITORS: Crown S Kavanagh
Offender SE O'Connor
IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
MATHEWS AJ
- Friday, 6 November 2009
2009/879
1 HER HONOUR: On 26 August 2009 at the Armidale Supreme Court, the offender, Ashley Smith pleaded not guilty to an indictment charging that, on 28 June 2008 at Narrabri he murdered Bradley Robert Hoye. A jury was duly empanelled and a trial commenced. On 3 September 2009, when the trial was well into its second week, and the Crown case was within a day or so of closing, Mr Smith asked to be re-arraigned on the same indictment. On this occasion he pleaded not guilty to murder but guilty to manslaughter, a plea which the Crown accepted in full satisfaction of the indictment. The prosecution on the charge of murder was thereupon discontinued and the jury discharged. The matter was adjourned to Sydney for submissions on sentence.
2 The circumstances of the offence are as follows. In June 2008, Bradley Hoye, who was then 32 years old, was living in Narrabri. It seems that on the night of Friday, 27 June, he had had an altercation with a person or group of people in the vicinity of the Tourist Hotel in Maitland Street, Narrabri. He was heavily intoxicated at the time. He returned to his home, not far away, changed his clothes, collected two knives, put on a balaclava and went out looking for the person whom he believed was responsible. He returned to the Tourist Hotel shortly after midnight. At about the same time Neil Gibbs, who was a friend of the offender, parked his car outside the Tourist Hotel. The offender and several of his friends were also in the vicinity, having recently left the nearby Caledonia Hotel where they had been drinking for part of the evening. None of them had ever met Mr Hoye before. Even if they had, they would probably not have recognised him, as his head and face were entirely concealed by the balaclava.
3 Mr Hoye first ran in the direction of Mr Gibbs. He was wielding the knives in the air and saying “you’re that cunt, I’m going to get you, I’m going to cut you up.” Mr Gibbs evaded him and Mr Hoye then turned his attention towards the offender, Ashley Smith. He ran towards him, but Mr Smith threw a can of rum at Mr Hoye, and his companions started to do the same. At about this time a chase developed, which took the group through an arcade which ran between Maitland Street and Tibbereena Street. Mr Gibbs was being pursued by Mr Hoye, who was still wearing his balaclava and wielding his knives. He in turn was pursued by Ashley Smith and his companions. At Tibbereena Street the group turned to the right, and in due course ended up outside the Crossing Theatre in the same street. At this point, according to Mr Gibbs, Mr Hoye was still swinging his knives and saying he was going to kill Ashley Smith and his associates. At about this time, Mr Gibbs ran to a nearby tree and broke off a fairly large branch. He ran back to Mr Hoye, raised the branch and told him that he would hit him with it if he, Mr Hoye, did not drop his knives. Mr Hoye raised his hands in the air, as a sign of surrender, and said that he wanted to make a truce. At that point Mr Hoye started to back away, still holding his knives. Also at about that time, one of the other men took the tree branch from Mr Gibbs. Very shortly afterwards it was taken by Ashley Smith. Mr Smith swung the stick with both hands, and struck Mr Hoye in the head on at least two occasions. Mr Hoye fell to the ground. Whilst he was on the ground, Mr Smith again struck him with the stick at least once, and possibly more. He also kicked him around the head until one of his friends pulled him back. It is likely that another of his companions also kicked Mr Hoye once when he was on the ground.
4 At some stage during this fracas, Mr Smith sustained an injury to the webbing of his left hand between the forefinger and the thumb. This must have been caused by one of Mr Hoye’s knives, although there is no clear evidence as to when or how this injury occurred.
5 The police and ambulance were called to the scene. The first paramedic to arrive, at 12.36am, found that Mr Hoye was not breathing and there was no pulse. Attempts to perform CPR, both at the scene and in hospital, were unsuccessful. At 1.40am life was pronounced extinct. Mr Hoye never regained consciousness after collapsing in Tibbereena Street.
6 An autopsy performed by Dr Kevin Lee found that the cause of death was inhalation of blood, caused by blunt force head and neck injury. The deceased had sustained extensive injuries to the right side of his face including a complex tripod fracture of the right maxilla, and multiple fractures to the zygomatic bone as well as an oblique fracture of the right lower jaw. These injuries were associated with extensive haemorrhage, particularly within the mouth.
7 Internal examination revealed a fracture of the skull in the left occipital area. In addition there was extensive bilateral haemorrhage to the muscles at the back of the neck. These injuries were consistent with blows by a hard instrument, or kicks by a person wearing a hard boot, as the offender was at the time. It was the combination of bleeding from these injuries and being profoundly unconscious which led the deceased to swallow and inhale large quantities of blood, thus causing his death.
8 The plea of guilty to manslaughter was offered by Mr Smith and accepted by the Crown on the basis of excessive self-defence. This was, in the circumstances, an entirely appropriate outcome. By the time Mr Smith inflicted the fatal injuries, Mr Hoye posed no immediate threat whatsoever, either to Mr Smith or to any of his companions. However, Mr Smith had consumed a considerable amount of alcohol that evening. Almost certainly his judgment was seriously impaired. The injury he sustained to his hand, which immediately started bleeding profusely, reinforced his mistaken view that he was at risk and that he had to defend himself and his companions.
9 Mr Smith later discussed the details of the offence with a clinical psychologist, Peter Champion, whose reports were tendered on sentence. He appeared to have a patchy memory of the incident. He did not know how he obtained the stick with which he struck Mr Hoye, nor could he remember kicking Mr Hoye when he was on the ground, although the evidence shows that he undoubtedly did so.
10 I now turn to discuss the offender’s background.
11 Ashley Smith is now 23 years old, having been born on 3 March 1986. He is of Aboriginal descent, as are both his parents. He is the fourth of five children, and has lived all his life in Wee Waa, in the north west of New South Wales. He was living there with his parents at the time of this offence. His family background is a supportive one, and his parents are highly regarded in the area.
12 Much of my information relating to the offender’s background comes from Mr Champion’s two reports, dated respectively, 11 September 2008 and 24 September 2009. Mr Champion describes the offender as having had a “truncated” education: He was illiterate until part way through year 6 and he unsuccessfully attempted to complete year 10 on two occasions.
13 Given this educational background, it is not surprising that the offender’s employment has generally been of a manual or unskilled nature, mainly in rural industries. At the time of the offence, he was employed as a cotton picker.
14 Mr Smith has a long history of cannabis and alcohol abuse. He told Mr Champion that he started using cannabis at about the age of 12, and a pattern of daily abuse developed, sometimes involving the consumption of large quantities of cannabis. He initially told Mr Champion that he had stopped using cannabis about two weeks before the offence. However, he later conceded that, earlier on the night of the killing, he had used cannabis as well as consuming a considerable amount of alcohol. He started drinking alcohol at about the age of 16. Although his consumption was generally moderate, on occasions it was excessive. It certainly appears to have been so on the night of this offence. According to what he told Mr Champion, in the three hours from 9 o’clock that night he had consumed a can of beer and eight cans of rum and coke.
15 In other aspects of his life the offender appears to have had a high degree of stability. He had been in a de facto relationship with a young woman for a number of years, which was terminated shortly before this offence. Since then they have reconciled, and she has remained supportive of him throughout these proceedings.
16 A matter which stands significantly to the credit of the offender is his almost non-existent criminal record. The only convictions recorded against him, other than driving matters, relate to damaging property and contravening an apprehended violence order. These took place at almost precisely the same time as the current offence, and related to his relationship with his then estranged girlfriend. The Crown Prosecutor has fairly conceded that, given the minor nature of these offences, Mr Smith is entitled to be considered as a person of prior good character. This is a significant matter in the circumstances of this case.
17 Partially because of his prior good record, the offender has been on bail for much of the remand period. He was in custody from 28 June until 3 December 2008 and was then released to bail. He was returned to custody after the sentencing proceedings commenced on 16 October 2009. He has thus spent just under six months in custody. His sentence therefore should commence on 11 May 2009.
18 The killing of Bradley Hoye was a tragedy which never should have happened. It was a tragedy which was essentially fuelled by alcohol. Mr Hoye himself was heavily affected by alcohol at the time. His post-mortem blood alcohol reading was .195 grams of alcohol is 100 millilitres of blood, a very high reading indeed. There were also traces of amphetamine and methyl-amphetamine found in his blood. Mr Hoye was clearly seeking to vindicate a wrong which had been done to him earlier in the evening. In the process, he became aggressive and belligerent to a group of strangers which happened to include Mr Smith and his companions. Mr Hoye’s excessive behaviour in this regard was almost certainly exacerbated, if not entirely caused, by the alcohol he had consumed. Similarly, Mr Smith was significantly intoxicated with alcohol, and was probably also affected by his cannabis use. As a result his judgment was very seriously impaired. By the time he struck Mr Hoye with the tree branch, the latter was already retreating. He was still holding the knives, but he no longer posed any realistic threat at all to the offender or his companions. Again, alcohol played a major role. Indeed it is highly probable that, had one or other of Mr Hoye or Mr Smith not been significantly affected by alcohol, this tragedy would never have happened.
19 In the particular circumstances of this case, I consider that the offender’s intoxication can properly be treated as a mitigating factor, albeit a minor one, given that his conduct was an irrational response which was brought about by the effect of alcohol. (See Stanford v R [2007] NSWCCA 73). There is no suggestion that this extent of intoxication was normal for the offender. Indeed, the contrary would appear to be the case according to what he told Mr Champion.
20 The Crown Prosecutor submits that this offence is, at least, within the mid-range of objective seriousness for the offence of manslaughter involving excessive self-defence. Mr Mark Austin, who appeared throughout for Mr Smith, submits that the matter falls within the lower range of culpability for manslaughter. As Mr Austin put it, the situation in which the offender found himself that night was thrust upon him against his will. This is clearly a relevant matter, and is associated with a mitigating factor under s21A(3)(b) of the Crimes (Sentencing Procedure) Act (the Act) namely that the offence was not part of a planned or organised criminal activity. To the contrary, in this case, it was very much a spur of the moment action. Moreover the weapon used by the offender, the tree branch, was not originally obtained by him. Whether it was placed into his hand or he took it from someone else is not known, but obtaining it was a spontaneous as opposed to a considered act. In addition, Mr Smith himself had sustained an injury to his hand. Photographs taken of the hand show that it was a nasty injury which would have bled profusely at the time, no doubt exacerbating his sense of insecurity.
21 On the other hand, the fact that he continued to strike and kick at Mr Hoye even after he was on the ground constituted an unnecessary and excessive display of aggression.
22 It is not easy to assess where the mid-range of objective seriousness lies in relation to the offence of manslaughter, given the enormous range of culpability which is covered by this offence. Each case depends very much upon its own individual circumstances. However, having said that, I consider that this case falls within the lower range of culpability for manslaughter involving excessive self-defence.
23 The offender is entitled to a discount on sentence by reason of the utilitarian value of his plea of guilty. However, that utilitarian value is significantly diminished by the lateness of the plea. The Crown has suggested a discount of 10% and I do not understand Mr Austin to dispute the appropriateness of this. This will accordingly be the discount I apply.
24 There are no aggravating factors relating to either the offence or the offender under s21A of the Act other than those which are inherent in the offence of manslaughter. As to mitigating factors, I have already referred to the factor under subs3(b) which mitigates the circumstances of the offence. There are also several factors which are relevant to the offender personally. I turn to describe them now.
25 A significant mitigating factor pursuant to s21A(3)(e) is that the offender does not have any significant record of previous convictions. I have already referred to this matter. Associated with this, and pursuant to paragraphs (g) and (h), the offender has good prospects of rehabilitation and is unlikely to re-offend, as conceded by the Crown. These are highly significant matters on sentence.
26 Pursuant to paragraph (i), the offender has shown remorse for his actions as represented by his plea of guilty. In this respect, Mr Austin rightly submitted that the 10% discount on sentence is attributable to the utilitarian value of the offender’s plea of guilty. He is separately entitled to leniency by reason of his contrition and remorse as displayed through his plea and expressed during his interviews with Mr Champion.
27 Finally by way of mitigation, I take into account the youth of the offender. He was only 22 when this offence was committed, and was generally a very unsophisticated young man. He is still only 23.
28 What then does the future hold for this young man? He has expressed a desire to further his education whilst in jail, and it is very much to be hoped that he will have the opportunity and be able to do so. Mr Champion tested him with the Wechsler Adult Intelligence Scale and he achieved an overall score in the low average range. However, Mr Champion thought that this was a misleading figure. He considered that the offender’s innate potential is probably mid-average or better, but that social and educational issues have depressed the development of his language and education based skills. He noted that the offender’s thinking was sometimes somewhat unsophisticated, and concluded that the offender was hampered by “his lack of knowledge of the world and how it operates.”
29 Clearly the offender has the potential to lead a productive and useful life. It is to be hoped that he will use his time in custody in a constructive manner which will enhance his prospects upon release. His father, who gave evidence on sentence, said that the offender would like to become a veterinary surgeon or a chef. Given his educational situation, the former profession is probably beyond his reach. But with appropriate training and experience, there is no reason why he should not fulfil his ambition to become a chef.
30 Extremely moving victim impact statements were read on behalf of Mr Hoye’s grandfather Ron Stewart, his sister Michelle Hawgood, his brother Glen and his mother, Suzanne Hoye. All of these, particularly Mrs Hoye’s statement, testify to the value of the life which was lost unnecessarily on this night, and the devastation experienced by Mr Hoye’s family members ever since. On behalf of the Court, I extend my deepest sympathy to the family of the deceased. I hope they understand that the devastation experienced by family members after a tragic event such as this cannot be used by the Court as a measure for the appropriate sentence to be imposed on the offender. Indeed I very much doubt whether they would regard any sentence this court could realistically impose as adequate for that purpose, given the extent of their loss.
31 The maximum sentence for manslaughter is 25 years imprisonment. Actual sentences can vary between a non-custodial outcome at one extreme and a sentence approaching the maximum at the other. The present offence is in the lower range of objective seriousness for manslaughter and was committed by an offender who has a number of mitigating factors in his favour. Nevertheless, it cannot be forgotten that the offence involved the unnecessary and violent taking of another person’s life.
32 All parties agree that special circumstances exist in the offender’s case which justify a departure from the statutory nexus between the non-parole period and the balance of the term. It would be highly desirable if he could serve the bulk of this sentence in a facility which is accessible to his family, such as Tamworth or Brewarrina.
33 Were it not for the deduction attributable to the offender’s plea of guilty, I would have sentenced him to a total sentence of seven and a half years, comprising a non-parole period of five years with a balance of term of two and a half years. Applying the 10% deduction, a non-parole period of four years and six months is reached. The balance of term will be two years and three months.
34 Ashley Duane Smith I sentence you to imprisonment to be served by way of a non-parole period of four years and six months, commencing on 11 May 2009 and expiring on 10 November 2013. The balance of the term of your sentence will be two years and three months, commencing on 11 November 2013 and expiring on 10 February 2016.
3