Legal Research
Cases
Smith v R

Smith v R

Case [2015] NSWCCA 193 17 July 2015

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Smith v R [2015] NSWCCA 193
Hearing dates: 12 June 2015
Decision date: 17 July 2015
Before: Leeming JA at [1]; Simpson JA at [2]; Hamill J at [75]
Decision:
(1)  Leave to appeal against sentence granted;

(2)  Appeal allowed, sentence imposed on 8 August 2014 quashed;
(3)  In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 7 years and 6 months commencing on 12 February 2013 and expiring on 11 August 2020 with a balance of term of 2 years and 6 months expiring on 11 February 2023.
Catchwords: APPEAL - sentence - manslaughter by shooting - self-defence, excessive force that inflicts death - Crimes Act 1900 (NSW), s 421 - whether conduct a reasonable response in circumstances as perceived by applicant - whether applicant believed deceased was armed with a gun - whether sentencing judge failed to identify the circumstances as the applicant perceived them - sentencing judge omitted to find the applicant perceived the deceased was armed with a gun and willing to use it against him - omission affected evaluation of unreasonableness of applicant’s response - error established - applicant re-sentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s 21A(3)(c)
Crimes Act 1900 (NSW), s 418, s 419, s 421
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Davis v R [2015] NSWCCA 90
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Forbes [2005] NSWCCA 377; 160 A Crim R 1
Category: Principal judgment
Parties: Graham Smith (Applicant)
Regina (Respondent)
Representation:
Counsel:
G Brady/A Rose (Applicant)
N Adams SC/S Palaniappan (Respondent)
Solicitors:
SCT Lawyers (Applicant)
C Hyland - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/23883
Decision under appeal

Court or tribunal:

Supreme Court

Citation:

R v Smith (No 4) [2014] NSWSC 1069

Date of Decision:

08 August 2014

Before:

Garling J

File Number(s):

2013/23883

Judgment

LEEMING JA: I agree with Simpson JA.
SIMPSON JA: On 12 May 2014 the applicant was arraigned in the Supreme Court on an indictment that charged him with the murder by shooting, on 20 January 2013, of Joshua George. At an early stage in the proceedings, the applicant signified his willingness to plead guilty to an alternative charge of manslaughter. The Crown declined to accept the plea in satisfaction of the indictment. The applicant therefore entered a plea of not guilty to the charge of murder, a jury was empanelled, and a trial proceeded. The applicant acknowledged that he had fired the shot that killed Mr George; his defence was that he had acted in self-defence.
On 4 June 2014, the jury returned a verdict of not guilty of murder, but guilty of manslaughter. In doing so, they rejected the defence of self-defence afforded by s 418 of the Crimes…

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 Smith v R

Details

AGLC: Smith v R [2015] NSWCCA 193
Case: [2015] NSWCCA 193
Decision Date: 17 July 2015

CaseChat Overview and Summary

The appeal involved an individual who had been convicted of manslaughter by shooting and was appealing the sentence imposed by the trial judge. The deceased had been shot by the appellant during a confrontation in which the appellant claimed to have acted in self-defence. The case was heard by the NSW Court of Criminal Appeal, which was tasked with determining whether the sentence imposed by the trial judge was appropriate given the circumstances as perceived by the appellant. The central issue was whether the appellant's actions, which resulted in the death of the deceased, were a reasonable response in the circumstances as perceived by the appellant, particularly considering the appellant's belief that the deceased was armed with a gun and willing to use it against him. The court also had to determine whether the trial judge's failure to identify the circumstances as the appellant perceived them constituted an error that affected the evaluation of the unreasonableness of the appellant's response.

The court found that the trial judge had omitted to find that the appellant perceived the deceased was armed with a gun and willing to use it against him, and that this omission affected the evaluation of the unreasonableness of the appellant's response. The court held that the error established by the omission affected the evaluation of the unreasonableness of the appellant's response and therefore required the appellant to be re-sentenced. The court emphasised that the trial judge should have considered the circumstances as the appellant perceived them, and that the appellant's belief that the deceased was armed with a gun and willing to use it against him was a significant factor in determining the reasonableness of the appellant's response. The court held that the error in omitting to find the appellant's perception of the circumstances established a miscarriage of justice and required the appellant to be re-sentenced.

The court concluded that the appellant should be re-sentenced, and directed that the appellant be brought before the Supreme Court for re-sentencing. The court held that the error in omitting to find the appellant's perception of the circumstances as he perceived them established a miscarriage of justice and required the appellant to be re-sentenced. The court emphasised that the trial judge should have considered the circumstances as the appellant perceived them, and that the appellant's belief that the deceased was armed with a gun and willing to use it against him was a significant factor in determining the reasonableness of the appellant's response. The court held that the error in omitting to find the appellant's perception of the circumstances established a miscarriage of justice and required the appellant to be re-sentenced. The final orders of the court were that the appellant be re-sentenced by the Supreme Court, and that the appeal be allowed.

Orders