R v SMITH

• 7 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HULME J Friday, 7 March 2008

REMARKS ON SENTENCE 1 HULME J: The circumstances that have led to the Prisoner appearing before me for sentence are as follows. On the evening of Saturday 9 December 2006 he attended a Christmas party at the Windsor Function Centre. The function ended around 11.30pm and on leaving the Centre, the Prisoner and four friends walked a short distance to a nearby street where they waited on the footpath for a taxi. The Prisoner was well affected by alcohol and witnesses said that the Prisoner appeared to be in an aggressive mood. 2 While they were waiting, Trevor McCormick, aged 40, walked past and in what appears to have been as a friendly fashion, remarked something to the effect "Hey, what's going on". 3 The Prisoner approached Mr McCormick saying something along the lines "What the fuck do you want mate". Mr McCormick replied "Nothing, I was just asking" and without warning the Prisoner punched Mr McCormick in the vicinity of the top of his chest or bottom of his head. As a result of the punch, Mr McCormick fell backwards, striking his head heavily on the concrete footpath and being knocked out. Although Mr McCormick regained consciousness he was taken to hospital but by the evening of Monday 11, December, he had died from a subdural haemorrhage. Post mortem examination revealed a fracture to the back of the skull. 4 Prior to any interaction with the Prisoner Mr McCormick had been at a nearby hotel and subsequent testing revealed that he had a blood alcohol level of 0.159. Although this in no wise ameliorates the Prisoner's criminality, it is proper to recognise that this factor, although it was in no sense causative of Mr McCormick's fall, may have contributed to the manner of it. 5 On the evening of 9 December the Prisoner denied having any involvement in the injury to the deceased although on the following Wednesday, he attended at the local Police Station. He declined to be interviewed and was charged with murder. In the Local Court the charge was changed to one of manslaughter and the Prisoner then pleaded guilty, a plea to which he has adhered. Accordingly in accordance with the guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383, I think it appropriate to allow him a discount of 25% for the utilitarian value of his plea.

Subjective Factors 6 The Prisoner was just over 22 years of age at the time of his offence. Although his parents separated when he was about 10 and his father's occupation involved significant periods overseas both remained supportive of the Prisoner in his growing up years. He left school at the end of year 9 and undertook a landscaping apprenticeship. Since the offence the Prisoner has completed the final subjects of his TAFE course which he seems to have failed at an earlier time.

7 Since leaving school the Prisoner has been in regular employment. His employer since March 2006 gave evidence at the sentencing hearing and spoke highly of him. 8 The Prisoner has a minor criminal record that I regard as of no present significance save that on 1 October 2006 he was charged with, and after the offence with which I am concerned convicted of, driving with a high range PCA. That offence is consistent with other evidence given during the sentencing hearing that prior to his attack on Mr McCormick the Prisoner customarily drank to excess at week-ends. 9 Over the years the Prisoner has also partaken to a significant extent of illegal drugs particularly cannabis and ecstasy although he told Dr Nielssen, a psychiatrist who prepared a report for the purposes of sentencing, that he had given up cannabis some year or more before the subject offence because he did not like the idea of being dependent on the drug and realised it affected his mental and physical performance. He also informed Dr Nielssen that he had not suffered any psychological complications of drug use. He informed Ms Robilliard, a psychologist whose report was also tendered during the proceedings that he had not partaken of illegal drugs since he had been charged. Ms Robilliard detected signs of an "underlying antisocial propensity and consequent tendency to act out in anger".

10 The Prisoner was released on bail soon after his arrest and then sought psychological help and counselling to deal with abuse of alcohol, relationship problems and the emotional consequences of his offence and the charge. He was depressed for a time. A condition of his bail was that he not partake of alcohol and he gave evidence that he has adhered to that condition. He has been attending regular AA meetings. A further condition of his bail undertaking was that he report daily to the Police and he has also adhered to that.

11 The Prisoner continues to have the support of his parents both of whom speak of a distinct or dramatic change in him. His mother's words were that she had "seen him grow from an immature, angry and sometimes irresponsible boy into a dedicated, caring and responsible young man". He also clearly has the support of a substantial number of friends who attended the sentencing hearing. 12 I should add that, although in the above account I have sometimes expressed myself in terms of what the evidence revealed, I accept it all. 13 I am required by s21A of the Crimes (Sentencing Procedure) Act to have regard to, if they are present, a number of aggravating and mitigating factors. One of the aggravating factors is that an offender has a record of previous convictions. I have dealt with that. The Prisoner's offence clearly involved violence, and the injury, loss or damage was substantial. Although recognising the existence of these matters, I am also enjoined by the statute not to have regard to any of them that are elements of the offence. Clearly these last mentioned are.

14 Lack of planning is one of the mitigating factors listed. Others that in my view exist are that the Prisoner does not have a significant record of previous convictions, he was of good (though I do not suggest perfect) character, he is unlikely to re-offend and has good prospects of rehabilitation, and has shown remorse. These conclusions are inspired in part by statements from Ms Robilliard, a Mr Lillie an alcohol and drugs counsellor who has been assisting the Prisoner, the Prisoner's parents and the evidence of the Prisoner's employer. It is appropriate to record that rarely have I come across a case where an offender has done as much between offence and sentence as the Prisoner has to address his problems and although one is often sceptical of much said in this connection, I have no doubt as to the evidence I have been given in this regard.

15 The matters to which I have so far referred are the facts relevant to the sentence to be imposed. However there are other factors. The protection of human life and personal safety is a primary objective of the system of criminal justice. The courts have stressed that what is involved in every case of manslaughter is the felonious taking of a human life and this must be the starting point in any consideration of the sentence to be imposed - See R v Blacklidge (Unreported, CCA, 12 December 1995); R v McDonald (Unreported, CCA, 12 December 1995). 16 In this case there were read victim impact statements by the mother, father and sister of the deceased. Those statements spoke eloquently of the loss their authors have suffered. Although authority by which I am bound - see R v Previtera (1997) 94 A Crim R 76 - lays down that, because of the problems in comparing and valuing one life lost against another, sentencing judges may not take into account the particular content of such statements in determining an appropriate penalty such statements do help to prevent sight being lost of the enormous suffering the offence of manslaughter is liable to impose. 17 Another factor is the maximum penalty of 25 years imprisonment prescribed by Parliament albeit it must also be recognised that the circumstances in which manslaughter occurs - varying from a joke gone wrong to conduct falling just short of murder - are so protean that that maximum is, in may cases, of very limited guidance. Although by definition every case of manslaughter involves the death of the victim, principles of sentencing require a judge to assess where on the imprecise scale of offending a particular offence lies. 18 A third factor or group of factors are the functions of punishment as dictated by the courts over the years and by Parliament in s3A of the Crimes (Sentencing Procedure) Act. It is sufficient for present purposes to recount what the High Court said in Veen v R (No 2) (1987-1988) 164 CLR 465 at 476:- "The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."

19 In light of the evidence as to the Prisoner's conduct since his offence, I do not regard the factors of personal deterrence and protection of society as of significant weight do far as the sentencing of the Prisoner is concerned. On the other hand, general deterrence and retribution remain of importance and both argue for a heavier rather than a lighter sentence.

20 That said, the principles of sentencing no longer demand an eye for an eye or that, because one life has been lost, another should be ruined. And while the authorities are clear that a sentence for an offence such as this must provide a real demonstration that society cannot tolerate criminal activity amounting, as in the present case, to the taking of a life and will impose a serious disincentive on those who offend it is proper to recognise that the Prisoner's offence is one of human frailty rather than deliberate premeditated criminality. 21 It is also proper to recognise that the Prisoner is not a hardened criminal to whom the rigours - and they are real - of incarceration may mean little. It should be recognised also that the effect of incarceration for years does not cease immediately on release. The time the Prisoner must spend in prison is time he could have been advancing his career, commencing a family or saving for a home. On the other hand, and this is one of the factors that makes sentencing in this area difficult, the deceased has forever been deprived of these opportunities. 22 With a view to providing guidance in this area, the Crown Prosecutor referred me to the decision in R v Kwon [2004] NSWCCA 456. I have paid particular regard also to the cases of R v Grenenger [1999] NSWSC 380; R v Steve Risteski [19999] NSWSC 1248; R v Nguyen [2000] NSWCCA 45; R v Khouzame [2000] NSWCCA 505; R v Young [2002] NSWCCA 322; R v O'Hare [2003] NSWSC 652; R v Macluran [2003] NSWSC 799; and Melchers v R [2003] NSWCCA 119 some of which also involved death following but one blow. Of course there are differences between the factual circumstances of all of those cases and this one. I have taken account of these differences but nothing will be gained by a detailed analysis in this regard. 23 The conclusion at which I have arrived is that the sentence I impose should be one of 3 being a period of 5 less the 25% to which I have referred. That is of course far less than the loss to Mr McCormick and his family but doubling, tripling or quadrupling these periods could not equal that loss and I must strike a balance somewhere. 24 This being the Prisoner's first time in custody, there are special circumstances and I propose to make some small adjustment of the non-parole and parol periods. However, I do not regard any less non-parole period than I fix. 25 I sentence the Prisoner to imprisonment for a non-parole period of 2 years and 6 months commencing on 7 February 2008, together with a further term of 15 months commencing on 7 August 2010. I record as the date upon which it appears that the Prisoner shall be eligible for parole, 7 August 2010. **********

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