R v Smith

Factual Background 2I should preface my remarks by noting that a number of the people involved in the events leading up to the tragic death of Mr Boyce were under 18 years of age at the time. As such, s.15A Children (Criminal Proceedings) Act 1987 provides that they should not be identified. I will therefore be referring to them and members of their families by using their initials only. Those that are fully named were over 18 at the time. 3The following is a very brief summary of the factual background. 4The deceased, Wayne Boyce as he was generally called, was 23 years old at the time of his death. The circumstances leading to his death had their genesis in a dispute between two young men (both of them under 18 at the time) called JT and AH. The offender was a friend of AH's and Mr Boyce was a friend of JT's. On the evening of Friday 24 April 2009 JT was at his home in T ... Street, Busby together with two friends, JP and JP's girlfriend RM. JT's parents were also at home at the time. RM was a friend of two girls called Danielle and Natalie, both of whom were, by chance, with AH that evening, as was the offender, Joey Smith. The offender had known AH for many years, and they were close friends. At one stage quite early in the evening, JT intervened in a telephone conversation between RM and Danielle, and demanded to talk to AH. The two young men then had an argument over the phone. Not long afterwards AH and his three companions drove to Busby, parking their car around the corner from the T home. AH and the offender walked around to the home, and JT and JP came out to the front garden to meet them. There JT and AH became involved in a verbal confrontation. Each of them was challenging the other to throw the first punch, but neither of them did so. The situation was defused when JT's father came out of the house and apologised to AH on behalf of his son. He shook AH's hand, and JT shook hands with the offender. AH, together with the offender and the two girls, then returned to their car and drove off. 5It is worthy of note here that the evidence indicates that the offender, Joey Smith, occupied something of a peace-making role during this episode. Having seen that JP was carrying a metal pole, he took it from him and threw it away, over a fence. 6Unfortunately, the way this confrontation ended only served to fuel JT's anger. He was concerned that AH and his friends would see it as a backing down on his, JT's, part. He was saying: "Now they will think they can walk all over me." Thereafter more telephone calls were made between the two groups. JT was told that AH and his companions would be returning to the T house in order that the two of them, JT and AH, could have a "one-on-one" fight, as they put it. JT was concerned that AH would bring more people with him as supporters. So he telephoned his friend Wayne Boyce, and asked him to be on the alert to come and assist when called upon. 7JT was correct in his apprehension that AH would get more people to accompany him on his second trip to the T home. By the time AH returned, at about 3.00 on the Saturday morning, there were eleven in his group, all travelling in a very large van which parked around the corner from the T home. These eleven comprised the four people who had been there previously, and seven others. Amongst the new additions were two whom I will be referring to later, namely Jamie Bargachoun and Alecks Tukacovic. By that time also there were seven people in the T home, as they had been joined by two of JT's friends, a male and a female. 8When JT first saw AH's group approach, he telephoned Mr Boyce and asked him to come immediately. The deceased at that time was with five friends, three males and two females, in an apartment at Wentworthville. They left straight away in the deceased's four-wheel-drive vehicle, and arrived at the T home not long afterwards. The deceased, who was in the front passenger's seat, was the first to get out. He jumped out as the vehicle was still coming to a stop outside the house. By that time there were quite a number of people in the front yard, although by no means the total number of the two groups. Most of the T group, including JT himself, stayed inside the house for much if not all of this confrontation, and several of the AH group stayed well away from the house and its precincts. 9When the Mr Boyce got out of the vehicle he was carrying a baseball bat which he had brought from the apartment in Wentworthville. He walked, or ran, virtually straight across the front garden to a point near some trees. There he had a confrontation with the offender which culminated in the offender inflicting a single stab wound to the deceased's left side. Tragically, the wound penetrated the right ventricle of the deceased's heart, and he immediately fell to the ground. Subsequent attempts to revive him, first by JT's mother, and later by paramedics, were unsuccessful. The post mortem examination showed that he died of blood loss. 10Almost all of those who were present at or around the T house at the time gave evidence for the Crown during the offender's trial. The two exceptions, apart from the offender himself, were AH and Jamie Bargachoun, both of whom had pleaded guilty to manslaughter as a result of Mr Boyce's killing, and were still awaiting sentence. Accordingly, 20 eye-witnesses were called to give evidence for the Crown: all seven who had been in the T house, eight of the eleven in the AH group, and the five people who had accompanied Wayne Boyce to the T house. 11Not surprisingly, given the speed at which the events occurred, together with the time of night and the considerable alcohol which had been consumed by many of those present, there were significant disparities between the various accounts of what happened when Mr Boyce first arrived outside the T home. Indeed, fourteen of the twenty Crown witnesses did not see what happened immediately before the stabbing. They were either inside the house, or outside the precincts of the house and garden, or looking in another direction. Accordingly, only six Crown witnesses described the events immediately preceding the stabbing. Given that self-defence was the principal issue in the trial, it was the events at that time which were of crucial importance to the jury's deliberations. In addition to the Crown witnesses, the then accused, Joey Smith, gave evidence in his own case. I think it is appropriate to commence with the account which he gave in his evidence, and then attempt to link it to the evidence given by the Crown witnesses. I propose to do this very briefly. The actual evidence went into a great deal of detail, which is unnecessary to traverse here. 12The offender said that the intention of AH and his companions, when they returned to the T house that night, was to watch AH and JT have a one-on-one fight. After they had left the van and were walking towards the house, he had a conversation with AH, during which the latter lifted his T-shirt and revealed a knife underneath. The offender immediately grabbed it from him, and put it in his own waistband. His intention, he said, was to avert a situation where a dangerous weapon might be used during the anticipated fight involving AH. In fact, no fight between AH and JT took place at all that night. JT stayed inside the house almost the whole time. 13The offender said that when he first arrived at the edge of the garden, he saw someone standing beside a car in the driveway. He, the offender, asked him whether JT was there. The person replied that he was inside. The offender asked him to go and get him. Then, the offender said, he walked up to where Jamie Bargachoun was standing. While he was there the four-wheel-drive arrived, and he saw someone with a baseball bat walking into the middle of the yard. This was clearly Wayne Boyce. RM, the girl who had been in the T home all evening, went up to Mr Boyce and said: "Stop, they haven't done anything yet. Relax." But, according to the offender, Mr Boyce took no notice of her and walked straight up to him, the offender. They had never met before, but he said that Mr Boyce immediately took the baseball bat with both hands and swung it at him, just missing his head. He raised it over his head to swing it again, and at that stage the offender took out the knife and swung it at his attacker. Mr Boyce immediately fell back, and the offender realised that the knife had gone into him. He had acted defensively, he said, and certainly did not intend to kill Mr Boyce. 14I do not propose to go through the details of what happened after the stabbing of Mr Boyce. There were a number of further altercations between various members of the different groups. The offender himself displayed a degree of aggression after the stabbing. First, he swung the knife at a group of people, saying "Go back inside the house and get the fuck away from me or I'll shank you." A little later, after JT had briefly emerged from the front door of the house and had struck AH in the back of the head, the offender assisted AH in smashing the front window of the T house with a pole which he had picked up from the ground. Shortly after this the entire AH group left the T house. They returned to the van and drove off. Police and paramedics were called but, as indicated, were unable to revive Mr Boyce. 15Interestingly, none of the six eye-witnesses in the Crown case who saw the events leading up to the stabbing, described Mr Boyce as having swung his bat towards the offender. Three of them said that he had swung it towards Jamie Bargachoun, and that the offender had intervened in order to protect Mr Bargachoun. The jury was accordingly directed that the same principles applied to a killing done in defence of another person as to a killing done in self-defence. 16Moving on in time, it is apparent that after leaving the T home, the offender started to realise the enormity of what had happened. He was described as saying, in the van: "I think I stabbed him ... fuck, fuck, fuck!" He told Alecks Tukacovic, who had driven the van to the T house, but who had remained in it while the others went to the house, that he had stabbed a man in order to stop him hitting Jamie Bargachoun. Later again, after the van had been driven to Alecks Tukacovic's house, Mr Tukacovic spoke to the offender and offered to dispose of the knife. The offender gave it to him and Mr Tukacovic concealed it in a drain in front of his home where it was later recovered by the police. 17It is unnecessary for present purposes to describe the offender's movements later that night. The following afternoon he was arrested at AH's home. On the way to the police station he told police that they had the wrong person, and that he had been at home watching movies all of the previous night. Later he admitted that this was a lie, but said that he was panicking at the time, when he realised that the victim of the stabbing had died. 18The offender was later charged with the murder of Wayne Boyce. He offered to plead guilty to manslaughter before the Local Court committal proceedings commenced. This offer was renewed shortly prior to trial. Clearly he is entitled to a discount on sentence on this account, and I will be returning to discuss it later.

Seriousness of the Offence 21The starting point in the offence of manslaughter is that a human life has been taken, in this case the life of a young man who did nothing more than agree with his friend JT to come and protect him and his group if necessary, and who was perhaps a little over-zealous in his attempts to do so. As the Crown prosecutor has pointed out, the fact that a knife was used is an aggravating factor. I have to accept, however, that the offender did not deliberately bring the knife with him intending to use it during this affray, but that he had it in the circumstances described in his evidence, namely that he had taken it from AH in order to ensure that AH could not use it in his anticipated fight with JT. Accordingly, I cannot regard this as a significant aggravating factor. 22It is pertinent here to refer to the proceedings against AH and Jamie Bargachoun. As already mentioned, both were charged with criminal offences as a result of the killing of Wayne Boyce. They were initially charged with murder and other minor offences. Both of them pleaded guilty to manslaughter, which plea was accepted by the Crown. On 13 December 2011 they were sentenced by Justice Johnson of this Court. Both were sentenced on the basis that they participated in an extended joint criminal enterprise in that they took part in an unlawful and dangerous act, an affray, in circumstances which objectively carried with it an appreciable risk of serious injury being occasioned to a person. 23Dealing first with A H: he was only 16 years and eight months old at the time of the offence, and was sentenced under the Children (Criminal Proceedings) Act 1987 . His Honour commented in his sentencing remarks that AH was responsible for setting in train the conflict which led to the groups of young men clashing outside the T house. AH was armed with a metal pole during the confrontation, although he did not in fact use it. His Honour considered that in his case the offence was an objectively serious one. After applying a discount of 20% for his plea of guilty, his Honour sentenced him to four years imprisonment with a non-parole period of two years. In this regard, his Honour found that there were special circumstances which justified a departure from the statutory ratio between the head sentence and the non-parole period. ( R v AH [2011] NSWSC 1535 ) 24As for Mr Bargachoun, his Honour pointed out that he also was armed with a metal pole when he emerged from the van. Unlike AH, Mr Bargachoun actually used his pole, striking one of the men from the T home very heavily on the shin. There was no evidence that Mr Bargachoun engaged in any personal confrontation with Mr Boyce. However his Honour concluded that he was a willing participant in the overall confrontation and he himself used violence in the course of the confrontation. On that basis, his Honour considered that his crime was an objectively serious one. After applying a discount of 20% for his plea of guilty, his Honour sentenced him to four years imprisonment with a non-parole period of two years and three months. Again, his Honour made a finding that special circumstances existed. ( R v Bargachoun [2011] NSWSC 1534 ) 25Mr Steel accepts that the objective criminality of the present offender must be greater than that of AH or Mr Bargachoun, given that it was he who actually inflicted the stab wound which killed Mr Boyce. 26With this background I return to discuss the circumstances of the present offence. Mr Steel submitted that the offender should be sentenced on the basis that he did not intend to kill Mr Boyce when he inflicted the fatal injury, and I accept this to be the case. The offender acted very quickly in the heat of the moment, without any opportunity for reflection. He swung the knife around and into the side of the deceased. Although I find that he must have intended to really seriously injure Mr Boyce at the time, I do not think that his intention was to kill him. As Mr Steel pointed out, the location of the wound to the side of the ribs was such that the offender may not have appreciated the potentially lethal consequences of a stab wound to this area. Professor Duflou said that only a moderate amount of force was needed to inflict the fatal wound. 27The maximum penalty for manslaughter is imprisonment for 25 years. It has often been said that this offence covers a greater range of criminality than any other offence in the criminal calendar. It can encompass offences which are only a little short of murder, at the higher end; down to practical jokes which have gone disastrously wrong at the bottom. This being the case, it is very difficult to compare one case with another. The scope for variation, both in the objective circumstances of each case and the subjective features of each offender, is virtually limitless. There is no standard non-parole period, and the Court is not required to make a finding as to where the particular offence stands in relation to the notional middle point of objective seriousness. In the present case, I find that it was an objectively serious offence of its kind: more serious than that of AH or Mr Bargachoun, but still in the generally serious range.

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