R v Graham Keys SMITH

REMARKS ON SENTENCE 1HIS HONOUR: A jury of twelve has found Graham Keys Smith guilty of the murder of Luke Charles Ogilvie and intentionally destroying the deceased's dwelling house by fire. I shall refer to each charge as the murder and the arson, respectively. Mr Smith pleaded not guilty to each of those charges. 2Criminal culpability for the murder conviction depended on extended joint criminal enterprise and, for the arson, depended on accessorial liability. It is necessary to summarise the facts and, in so doing, outline Mr Smith's involvement in each crime.

The Murder and Arson 3In the period leading up to the murder of Luke Ogilvie, the offender, Mr Smith, met with three others (hereinafter referred to as "the co-offenders"). The co-offenders asked Mr Smith whether he knew anyone who sold "drugs and ... had heaps of cash". Mr Smith knew the co-offenders and was aware that these co-offenders were "ripping over drug dealers and taking their cash and ... drugs". 4Mr Smith nominated Luke Ogilvie, the deceased. He did so in terms that informed the co-offenders that Mr Ogilvie was hurting his partner, who was Mr Smith's friend's mother (hereinafter "the mother"). 5Mr Smith not only nominated the deceased as the potential victim he then engaged in a series of telephone conversations with the mother and his friend, during which Mr Smith informed them that "the plan was to go out and steal money and drugs from him [Mr Ogilvie]". Mr Smith asked his friend to "come along"; "to go with" Mr Smith. However, his friend was unable to do so. 6Mr Smith had been to Mr Ogilvie's house before the day in question, but he obtained information from the mother and friend as to the whereabouts of the money, drugs and chemicals at the deceased's premises. That information was relayed to the co-offenders. 7Finally, Mr Smith went with the co-offenders to the deceased's premises and pointed out the house and the entrance thereto. 8All of the foregoing derives from the police interview with Mr Smith, tendered (Exhibit F) during the trial. That interview also establishes that Mr Ogilvie was very conscious of his own security and aggressive in protecting or defending it, and in possession of one or more guns, such that the assailants had to be careful. 9Mr Smith's involvement in the events at the premises is a matter of some dispute. The Crown, at trial, relied on the presence of Mr Smith's blood in the front of the car, on the handle and the accelerator pedal and his prints on the window frame, together with knowledge of events that seemed to have occurred after, on Mr Smith's version at the trial, he had left the premises. 10Nevertheless, the Crown accepted, and the evidence does not establish otherwise, either to the requisite standard or at all, that Mr Smith played no part in the occasioning of any bodily harm. Nor was the agreement between Mr Smith and his co-offenders one that included the killing of Mr Ogilvie or occasioning him grievous bodily harm. 11Summarised, what occurred at the premises was, on the evidence in the trial, that on arrival at the premises, Mr Smith directed the co-offenders up the driveway and the following events occurred. 12Mr Ogilvie confronted the offenders on their arrival. The car in which they drove to the house was used to ram the house. The co-offenders assaulted the deceased and hit him over the head. He was kicked and assaulted extremely violently. He was rammed against the car. The deceased was run over in the car seemingly deliberately. 13The level of known resistance to intruders, the possibility that Mr Ogilvie was armed and the intention to rob him of his money and drugs was known to Mr Smith. Mr Smith also knew of his co-offenders' propensity for violence. In those circumstances, the jury has drawn the inference, as do I, that Mr Smith contemplated that one or more of his co-offenders might form the intention to inflict grievous bodily harm and that, as events unfolded, that intention was formed and implemented, causing death. 14There was an issue at the trial as to the cause of death. I accept, as did the jury it seems, that, notwithstanding the absence of scientific evidence pinpointing precisely the cause of death, that the violent assault and the deliberate running over of the deceased caused death. This was also the view expressed by Mr Smith and by his co-offenders, at or about the relevant time. 15In the evidence at trial, Mr Smith contended, through the ERISP, that he left early in the events and was later collected and arrived home. At sentence, as a result of a post-verdict interview with police, the evidence was that Mr Smith was present during the whole of the foregoing events. I accept the later version. The earlier version was inconsistent with other comments and observations which Mr Smith witnessed. 16Some time after returning home, Mr Smith was visited by his co-offenders. They made clear to him that they were returning to the premises in order "to clean up" the evidence. The evidence would have included, what was thought by all of them to be, the body of the deceased, although no such admission was forthcoming. 17Mr Smith refused to return to the premises, but provided a jerry can for the stated purpose. The co-offenders returned, destroyed the deceased's home and significantly incinerated the deceased's body. The provision of the jerry can gave rise to the accessorial liability for the arson. 18It is unnecessary to recite the facts in any greater detail. Mr Smith was engaged in a joint criminal enterprise with his co-offenders to rob and assault the deceased. He contemplated that one or more of his co-offenders would form the intention to inflict grievous bodily harm, which they did. Death was occasioned and Mr Smith is guilty of murder by reason of an extended joint criminal enterprise. He was an accessory to the offence of arson. 19I accept the foregoing beyond reasonable doubt. I also find, on the balance of probabilities, that Mr Smith did not occasion any physical violence on the deceased. Further, he did not expect the deceased to be home but the agreement was to rob him, and assault him, whether or not he was at home. 20I also find that Mr Smith had no intention, initially, of obtaining financial gain from the robbery. His motives are not totally clear, but most probably included teaching the deceased a lesson regarding the treatment by the deceased of the mother. It may also have included, but it is unnecessary so to find, the existence of a relationship between Mr Smith's girlfriend and the deceased for a time during Mr Smith's previous period in prison. 21In the foregoing circumstances, I consider the objective criminality of the murder to be in the lowest possible category. There are, of course, aggravating features, including the planning of the crime and the fact that it was committed in company at the home of the victim, while Mr Smith was on conditional liberty. I turn then to the subjective circumstances.