DPP v Smith [2012] VSC 314

2 The offence of manslaughter can take a number of different forms. In this instance, the Crown alleged that Smith unintentionally killed Nicholas Welch in circumstances of gross negligence ― that is to say, circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised and such a high risk that death or grievous bodily harm would follow that his act in killing Welch merited punishment as a crime.[1] Stuart Smith undoubtedly thought he was firing at a deer. Clearly, he had not identified his target adequately ― whether because of foliage cover, lack of adequate light or some other, now unknown, circumstance.

3 Had Smith not pleaded guilty to this charge, a jury would have been empanelled and, after hearing all the evidence, would have had to determine whether it was satisfied beyond reasonable doubt that his conduct was of the kind described. The principal witness for the Crown would have been Jacob Welch, the deceased young man's brother. By pleading guilty, not only has Smith fully and unreservedly admitted his responsibility for the death of Nicholas Welch, he has also spared Jacob Welch the ordeal of having, yet again, to recount the tragic circumstances of his brother's death and its immediate aftermath. His plea has also spared Nicholas Welch's whole family the further anguish of a trial which would undoubtedly have run for some considerable time, thus exacerbating the family's grief. Thus, the plea of guilty has considerable value to the victim's family and to the community and this value must be taken into account in sentencing Smith.

4 Counsel for Smith explained the lateness of his client's plea by referring to the lateness of the Crown's finalisation of its case against him ― particularly with respect to the expert evidence it would have sought to lead concerning necessary safety precautions in the hunting of deer and the very late discovery of a video recording of the scene of the tragedy taken a few days after it occurred. In this instance, the fact of delay has enabled Smith to put before this Court not only an unblemished prior record but also convincing evidence of his remorse and rehabilitation since the tragic event occurred.

5 Stuart Smith comes before this Court as a 23-year-old young man of unblemished record who has completed, or nearly completed, his tertiary education, has a fine reputation among those who know him and a loving and supportive partner and family. Testimonials from his university lecturer, his football coach and other family friends attest to this. His industry has been demonstrated by his willingness to work to achieve his ambitions. That he is genuinely contrite and remorseful for the tragedy of Nicholas Welch's death is attested to not only by a psychologist by whom he is being treated but also by his own evidence and his contrition and apology in the witness box in this Court. His remorse has, as the psychologist noted, been so great as to raise fears, at one time at least, for his safety.

6 That the effect of Stuart Smith's carelessness and stupidity ― as he himself described his conduct ― has been devastating for the Welch family cannot be gainsaid. The victim impact statements which Nicholas Welch's father, mother and two brothers have provided to the Court and which were read on the plea hearing are eloquent in their recounting of the loss they have suffered and will continue to suffer as a result of Stuart Smith's conduct during those fateful few seconds on 25 July 2010. Nothing Stuart Smith can do now can undo this tragedy and all this Court can do on behalf of the community is acknowledge the grief and pain of those whom his actions have affected so gravely.

7 The Crown prosecutor has pointed out that the maximum sentence for manslaughter is 20 years' imprisonment. He also acknowledged that, as I have already noted, manslaughter covers a large range of conduct resulting in the unintentional death of another. Manslaughter by gross negligence falls towards the lower end of the scale of seriousness of the offence because it always occurs in circumstances where the accused does not intend any harm to his or her victim. The Crown conceded that in this case the negligence in respect of which Stuart Smith must be sentenced falls at the lower end of the scale. However, it also contended that a sentence of imprisonment should be imposed even if that sentence was capable of being, and was, wholly suspended.

8 The law requires a court when sentencing an offender to impose a sentence calculated to punish the offender justly, to deter the offender and others from committing similar offences, to facilitate the rehabilitation of the offender, to denounce the offender's conduct and to protect the community. In this case, I am satisfied that these purposes can be adequately met without the imposition of a term of imprisonment. Thus, by law, the Court must not impose a term of imprisonment.[2] Stuart Smith has been and will continue to be punished by his own realisation of what he has done. He needs no deterrence from re-offending in this way. He has stated he has no intention of using a gun again. I accept that statement and in any event intend to reinforce his resolve in this respect by making it a condition of his release that he not use a gun again for the maximum period possible. His record and his subsequent behaviour render any further rehabilitation unnecessary. Nor, for the same reason, does the community require any protection from him in this regard. It is sufficient denunciation of his conduct by the Court for an unintended crime of this nature that he be formally convicted.

9 Stuart Smith will be convicted of the manslaughter of Nicholas Welch. Because of all the extenuating circumstances referred to, but particularly because of his youth, his antecedents and his genuine contrition and remorse, this Court is justified in showing mercy to Stuart Smith by exercising the power conferred upon it by s 72 of the Sentencing Act 1991 to adjourn this sentencing proceeding for a period of five years and to release him upon his giving an undertaking:

(1) to attend before this Court at any time during the period of the adjournment if called upon to do so;

(2) to be of good behaviour during the period of the adjournment; and

(3) not to own, be in possession of or use any firearm whatsoever during that period.

10 Stuart Smith, do you agree to give that undertaking to the Court?

12 HIS HONOUR: Very well. If you come down to the front of the Court and sign the undertaking, I will witness it.

13 HIS HONOUR: Upon you having given that undertaking, you are released. You may leave the dock.

14 In conclusion, I commend the conduct of both families in this case, both of whom have suffered greatly as a result of the events of 25 July 2010. To the family of the deceased, I extend the condolences of the Court. I also commend Stuart Smith's family for the dignity they have shown and the support which they have given him at this very difficult time.

IN THE MATTER OF the Criminal Procedure Act 2009

OUTLINE OF PROSECUTION OPENING FOR PLEA HEARING

1. The accused Stuart Charles Smith has pleaded guilty to one count of manslaughter.

1. This charge arises from the shooting death of Nicholas Welsh at a bush location at Tallangatta South on 25th July 2010. The crown case is that the two men were hunting deer when the accused discharged his rifle. The bullet struck the deceased, killing him almost immediately.

1. The firing of the rifle by the accused was a conscious and voluntary act on his part, albeit without any intention of causing death or grievous bodily harm to the deceased. However, the prosecution the circumstances establish that the actions of the accused amount to manslaughter by criminal negligence. His actions involved such a great falling short of the standard of care which a reasonable man would have exercised, and involved such a high risk that death or grievous bodily harm would follow, that his actions merit criminal punishment.

1. Nicholas Welch was born on 16th November 1990, and was aged 19 years at the time of his death. He had a twin brother, Jacob, who was also present at the location where he was shot. The accused Stuart Smith was born on 2nd January 1989 and was then aged 21 years. The Welch brothers lived with their parents in Thurgoona, NSW. The accused lived in Wangaratta. Jacob Welch had met the accused at university in 2009, where they were both studying Park Management. Jacob introduced Nick to the accused and the three young men formed a friendship based on their common interest in hunting. Jacob and the accused had been hunting together only once prior to 25th July 2010. During this trip, neither shot at a deer.

1. Although they were relatively young, all three men were experienced shooters. The Welch brothers had obtained their Junior Shooter's Licence at aged 12 years. At age 18 years they passed a test for their Full Shooter's Licence. They possessed a NSW Restricted Hunting Licence, which permitted them to hunt on public land in NSW. They often hunted for Sambar deer around the Tallangatta area with their father Michael Welch.

1. Stuart Smith obtained his Junior Shooter's Licence at the age of 13. When he was aged 18, he obtained his Full Shooter's Permit. He also held Game Licences for hunting game birds and deer. He was a member of the Australian Deer Association and received regular literature by reason of these qualifications and memberships. This literature contained regular items of hunting information and firearm safety. He had received training in firearms safety. The 8 basic safety rules of firearms safety are expounded repeatedly in literature and training documents. These documents invariably include the cardinal warning: ALWAYS IDENTIFY YOUR TARGET AND WHAT IS BEHIND IT. POSITIVELY IDENTIFY YOUR TARGET BEYOND DOUBT. OTHER HUNTERS MAY BE WEARING CLOTHING THAT BLENDS WITH THE SURROUNDINGS SO DO NOT FIRE AT MOVEMENT. DO NOT FIRE AT COLOUR. DO NOT FIRE AT SHAPE. DO NOT FIRE AT SOUND.

1. At about 3.30pm on 25th July 2010, the Welch brothers, their father and the accused left Thurgoona to go deer hunting in the Eskdale and Tallangatta areas.

1. Mike Welch was dropped off at Eskdale at about 4.00pm. Jacob and Mike had radios and had planned to make contact when it got dark so Mike could be collected. Nick, Jacob and the accused drove to a farm property about 15 minutes further up the Omeo Highway. They drove their vehicle through paddocks to the base of a heavily wooded and steep hilly area. It was in this area where they hoped to hunt Sambar deer.

1. The three men were well equipped with hunting gear. Both the accused and Jacob wore green leafy camouflage clothing and they wore blaze orange caps. Nick wore a brown leafy camouflage top and brown pants. He wore a leafy pattern cap which had orange stitching. Each carried backpacks. Nick's backpack was green. Each carried binoculars.

1. Jacob carried a 7mm Magnum rifle. The accused had a .338 Winchester Magnum Ruger bolt action rifle which had a scope attached. It is an extremely powerful weapon, and is known as a heavy killing gun. Nick was unarmed, as he was not intending shooting that day. When they left the vehicle, both Jacob and the accused put the bolts into their rifles and loaded ammunition into the magazines. They had no bullets in their chambers and had safety catches on. This was normal safe gun practice.

1. Nick led the way into the bush, followed by the accused and Jacob. They noticed signs of deer being present, including 'rub trees' and game trails. They were following a game trail when they heard a crashing sound coming from the bushes ahead. Nick told the others that he thought it was a deer and told them to chamber a round. Both did so, leaving their safety catches on. The three men moved swiftly towards the noise and saw a young fawn through their binoculars (glassing a deer). They followed it to an adjoining gully, hoping it would lead them to a stag. They followed the game trail across a creek bed and heard further crashing ahead and above them up the hill. Both the accused and Jacob went to the right and Nick peeled off to the left. Jacob and the accused reached a log and they crouched down. The accused was about two metres away from Jacob. Nick's exact location was unknown.

1. At this point a conversation took place between the accused and Jacob.

1. Jacob saw that the accused was aiming his rifle up the slope, however because he was positioned diagonally from the accused, he was unable to see what he was aiming at. According to Jacob, the accused did not use his binoculars, but was aiming his rifle using the scope. The accused later told police that he did use the binoculars to identify the deer.

1. The accused then fired his rifle and immediately they heard a scream. They both ran up the hill and found Nick on the ground. The bullet had passed through his body, causing massive internal injuries. He died soon after they arrived. The distance between the accused when he fired and the place where Nick lay was approximately 26 metres. In between, there was heavy vegetation, which severely restricted vision between the two points. It was still daylight, but getting towards dusk.

1. Jacob left the accused with Nick and ran down the hill to get help. On the way down the hill, he saw that the time was 5.15pm. He reached the car and drove to a farmhouse from where the police and ambulance called. Jacob collected his father and returned to the base of the hill. He then led police, ambulance personnel and SES workers to the scene. The accused had waited with Nick's body and he was pronounced dead by paramedics at 8.20pm. The spent shell was located by police three days later, in the approximate location where the accused fired the shot. This was situated approximately 26 metres from where the deceased lay.

1. The accused was interviewed by Wodonga detectives on 28th July 2010. Following a caution, he gave an account of the shooting. He described the lead-up to the shooting. He said that he was 100% certain that he was shooting at a deer, although it was behind thick bush. He said that as he looked through the scope, he saw movement and colour and was aiming for the animal's shoulder, but he could not see its head. He claimed that he asked Jacob whether he should shoot and that Jacob told him to shoot. At that time he did not know where Nick was, but thought he was behind them. He agreed that he had not followed the Firearm Safety Rules and described his actions as "stupid and careless". He also admitted that the density of the bush and the steepness of the slope did not afford a clear shot. The accused was extremely distressed about the tragedy and was remorseful for the death of his friend.

1. The prosecution retained an expert witness Mr Alexander Krstic. He is a former police officer who is a professional hunter and licenced wildlife controller. He also possesses expertise as firearms consultant and instructor. Mr Krystic was provided with the police brief of evidence and has visited the scene of the shooting. Mr Krystic stated that when hunting Sambar deer, the shooter must firstly identify the animal as a Sambar, and then identify the aim point at which he wishes to deliver the bullet. The bullet should be delivered accurately to the heart/lung area, the liver, the neck or the brain. He must have a clear view of the head, neck and shoulders of the target deer before he fires. Having seen the location, he further stated that the visibility afforded to the accused in the direction of his target made proper identification of that target impossible. The accused should also been aware of the exact location of his two companions before he fired his weapon.

1. The prosecution case is that the circumstances leading to the accused taking the fatal shot were a recipe for the disaster which eventuated. He was an experienced shooter who was well aware of the cardinal rule of always identifying his target. He was aiming a rifle which was extremely powerful and potentially lethal. The shot was taken in a location which made target identification problematic, if not impossible. As events proved, the accused failed to identify that target and fired when he was unsure where Nick was positioned. It was his responsibility alone to make sure of what he was aiming at. In these circumstances, the prosecution says what occurred was not an unfortunate accident, but rather an act of gross negligence.

[1] See Nydam v The Queen [1977] VicRp 50; [1977] VR 430.

[2] See Sentencing Act 1991 ss 5(3)-(7).