R v Smith

[2013] NSWSC 1159

Supreme Court of NSW|2013-07-19|Before: Schmidt J, Mr P

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Supreme Court of NSW

Decision date

2013-07-19

Before

Schmidt J, Mr P

Catchwords

R v Houlton [2000] NSWCCA 309

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Original judgment source is linked above.

Catchwords

R v Houlton [2000] NSWCCA 309

Judgment (16 paragraphs)

[1]

Judgment 1Richard Keith Smith today stands for sentence for the murder of Stanley Bruce Davies at Kempsey on 26 November 2010. He pleaded guilty to that offence in this Court in February 2013, after he was committed for trial from the Port Macquarie Local Court.

[2]

The Court's sentencing task 2It is necessary to begin by giving some explanation of the sentencing task which the Parliament has imposed on the Court. The sentence imposed on the offender must reflect the gravity of the offence which he has committed, viewed objectively (see R v Dodd (1991) 57 A Crim R 349 at 354). 3In arriving at that sentence the Court must bear in mind the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 ('the Act'). Those purposes are: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 4The sentence must be fixed in light of the maximum penalty imposed for the crime in question, which in the case of the offence of murder, is life imprisonment under s 19A of the Crimes Act 1900. 5Section 61(1) of the Crimes (Sentencing Procedure) Act requires that a sentence of life imprisonment be imposed on an offender, if the Court is satisfied that the level of culpability in the commission of the offence is so extreme, that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence. It is a matter for the Crown to establish that an offence falls within s 61(1). In this case the Crown did not seek the imposition of such a sentence, submitting that this offence did not fall into the worst category of such offences. 6By s 54A of the Act, the Parliament has also imposed a standard non-parole period of 20 years imprisonment for an offence of murder falling in the middle of the range of objective seriousness of such offences. A non-parole period is the minimum period that an offender will serve in prison, before being eligible to be released on parole for the balance of the sentence imposed for the offence. 7Both the maximum penalty and the standard non-parole period are factors which must be taken into account on sentencing, in the way explained by the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, even in a case such as this, where a plea has been entered. 8Under s 22 of the Act, a plea of guilty must also be taken into account in determining sentence. Under s 21A of the Act the Court is also required to give consideration to specified aggravating and mitigating factors revealed by the evidence, as well as any other objective or subjective factors that affect the relative seriousness of the offence. Consideration must be given to general and specific deterrence in the sentence imposed. The sentence imposed must ensure that there is a reasonable proportionality between the sentence and the circumstances of the crime committed (see R v Scott [2005] NSWCCA 152 at [15]). 9The sentencing exercise must also have regard to s 44(2) of the Crimes (Sentencing Procedure) Act, which requires that the balance of the term of the sentence imposed must not exceed one-third of the non-parole period, unless the Court decides that there are special circumstances. If there is to be any such adjustment, it must not be such as to reduce the non-parole period below the minimum term which justice requires the offender to serve for the offence he has committed (see Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628).

[4]

The parties' cases 12By his plea the offender accepted that he is guilty of Mr Davies' murder. The offender did not ask the Court to distinguish between him and his co-offenders, notwithstanding that he had told the psychologist that he had only hit Mr Davies. He accepted his responsibility for that murder, including acceptance of his responsibility for the acts of his co-offenders. 13It was submitted for the offender, however, that the Court would find that the evidence established only that he had the intention to inflict grievous bodily harm on Mr Davies, not that he had a specific intention to kill. The Crown's case was that the evidence established at least that there was an intention to inflict really serious bodily harm. 14On the Crown's case this offence fell above the middle of the range of such offences, the evidence establishing that it had involved a sustained and vicious attack on an elderly man, who should have been safe in his own home, who was obviously not giving his attackers what they wanted and who had been attacked, purely for personal gain. The offender's case was that while it was accepted that his offence was a very serious one, it would be found to fall within the middle of the range. 15It was common ground that the offender must have a discount for his plea, the Crown submitting, however, that the range fell between 13 and 17% and the offender, that it fell between 15 and 18%. There was also some disagreement as to the date from which the sentence should commence, having regard to the time that the offender has spent in custody after his arrest, which was referrable to the sentence in respect of which he was on parole, when Mr Davies was murdered. That sentence expired on 3 November 2011, after which the offender has been in custody in respect of this offence alone. 16There was also a question lying between the parties as to how the assessment of special circumstances might be approached in this case, given the offender's personal circumstances and the sentence likely to be imposed upon him.

[5]

The seriousness of this offence 17As I have explained, the maximum sentence of life imprisonment is reserved for extreme offences of murder. This was explained in R v Lewis [2001] NSWCCA 448, where it was observed at [60]: "Because the life sentence provided by s.61 of that Act does not contemplate any prospect of relief in the future, no matter how distant, it should be reserved for crimes of the utmost heinousness: Chung [1999] NSWCCA 330, Ibbs v. R. (1987) 163 CLR 447 at 451-2, Twala NSWCCA 4/11/94, Fernando (1997) 95 A Crim R 553 at pars.344-4, Harris at 423." 18In this case, on the evidence I am satisfied that the Crown's submission as to the objective seriousness of this offence must be accepted. This was a very serious example of murder, involving as it did an elderly victim, viciously attacked at night while alone in his own home, where he was left to suffer a lingering death. 19The evidence unquestionably reveals that objectively, this was a very serious offence, falling somewhat above the mid-range of such offences. Nevertheless, I am satisfied that while this was clearly a very serious example of murder, as the offender himself accepted, the parties' common ground that the evidence established that this is not a case of the most extreme kind, for which a life sentence must be imposed, has to be accepted. 20On 19 November 2010 Mr Davies was aged 75 years. A friend visited Mr Davies at his home at about 6pm that evening. He was then uninjured. 21Like Mr Davies, the three co-offenders were all locals living in Kempsey. In the early hours of that evening one of them left his home, saying that he was going to see the offender to have a drink and that the offender had a house, which he intended to rob. 22At about midnight Mr Davies' neighbours heard banging sounds. It was at about that time that the three offenders entered Mr Davies' house, intending to steal property there. As he entered, the offender injured his head. It began to bleed. On later forensic examination, blood which matched the offender's DNA profile was found at the house. 23The offenders confronted Mr Davies inside the house, subjecting him to violence of the most awful kind, in which the offender accepts that he was an active participant. They demanded the opening of, or the combinations to Mr Davies' safes, without success. They ransacked the house, forcing open and attempting to force open safes and other security containers. Mr Davies was moved about the house while injured, leaving a blood trail. 24Mr Davies was only discovered after 5.30pm the next day, 20 November. He was not found until his sister and brother contacted police, after his sister had entered the house to find that the lounge room had been ransacked. He was then found lying on the ground in a bedroom, between the bed and a cupboard, unconscious and severely injured, covered in blood, the surrounding area covered in his blood, with considerable impact blood spatter nearby. 25The evidence established that Mr Davies had been struck with both fists and weapons in such a way that he suffered a compression injury to his neck, as well as multiple fractures to his facial bones, bleeding to his face and within his brain, lacerations behind his right ear, as well as patterned injuries to his back, consistent with an assault caused by an implement such as a tyre lever or the shaft of a golf club, as well as bruising to his upper arms and abrasion to his fingers. 26On admission to hospital Mr Davies was found to have extensive swelling to his head and face, as well as bruising, consistent with multiple blows from a blunt object and extensive brain damage, which was considered to be irretrievable and unlikely to respond to surgery. 27Despite the treatment which he received at Kempsey Hospital and later after he was transferred to John Hunter Hospital, Mr Davies failed to respond. He remained in a coma until life support was withdrawn on 26 November, when he died. On forensic examination it was concluded that his injuries were consistent with a severe, violent and sustained assault to his face, neck and head. The cause of his death was determined to be craniofacial trauma. 28On all of this evidence, it is beyond question that this offence involved a cowardly attack on an elderly man, late at night, while he was alone in his own home, where he should have been safe from harm. The three offenders inflicted terrible injuries upon him, using both their fists and implements, when he refused to open the safes and other sealed containers which they were intent on robbing. The evidence clearly establishes that these injuries were inflicted, at least, with an intention to inflict grievous bodily harm. 29The offender did not give evidence. What he told the psychologist was not the subject of cross-examination and so must be approached with some caution in this sentencing exercise. Given what other evidence has revealed about the nature and extent of the injuries inflicted on Mr Davies, it seems to me that the account which the offender gave the psychologist cannot be accepted as having been entirely accurate, as to all that occurred that night. 30The offender told the psychologist that while he was affected by drugs and alcohol at the time of the offence, he could generally recall his actions. He said that Mr Davies was awake, sitting at a table when they entered his home. He admitted hitting Mr Davies with his fists. He said that this physical force was intended to scare Mr Davies "so that things could be easier, calmer to do things", by which the psychologist understood him to mean that the robbery could progress smoothly. The offender also said that he did not do or say anything to stop the other violence inflicted by his co-offenders. 31The offender did tell the psychologist that "I hate that the fella is dead. That was one thing that wasn't meant to happen. I wish it never happened at all". He also said that he thought about Mr Davies' death every night and that he feels "like shit" about it. 32There was no evidence that the offender hit Mr Davies with an implement. In the result, I have concluded that the evidence does not establish beyond reasonable doubt that the offender had formed the intention to kill Mr Davies, or that it was the offender who used the implement or implements which caused certain of Mr Davies' extensive, serious injuries. It follows that while accepting his legal responsibility for the acts of his co-offenders, the offender must be sentenced on the basis that his moral culpability for the injuries inflicted on Mr Davies encompassed only those injuries inflicted by use of his own fists. 33Nevertheless, that the offender gave the psychologist an entirely accurate or complete account of his involvement in the assault to which Mr Davies was subjected, does not follow. 34Given the nature and extent of the injuries which he suffered, that the violence which the offender admitted he inflicted on Mr Davies was intended only to scare him and to make the robbery calmer and easier, as he told the psychologist, cannot be accepted. The extent of the injuries which Mr Davies suffered establishes that it was an extreme level of violence which caused his lingering, awful death. What he experienced before he fell into the coma from which he never recovered, must have been both terrifying and painful. What he had to endure was certainly neither calm nor easy. 35In assessing the seriousness of this offence it is also necessary to consider that the consequences of the severe beating to which Mr Davies had been subjected and his resulting need for urgent medical attention, must have been apparent to the offender, when he and his co-offenders left Mr Davies to die. It was then late at night. He was an elderly man, who had been seriously injured, while alone in his home. Still the offender did nothing to seek the assistance which Mr Davies so desperately then needed. Instead, this helpless, seriously injured elderly man was callously abandoned to his fate. 36That no doubt helps explain the guilt which the offender told the psychologist that he continues to feel for Mr Davies' death and puts beyond argument the objective seriousness of the offence for which this offender must now be sentenced.

[7]

Mitigating factors 41The parties also agreed that the mitigating matters specified in s 21A(3) of the Crimes (Sentencing Procedure) Act relevant to take into account on sentencing were the offender's plea, to which I will return and perhaps remorse. 42Section 21A(3)(i) provides that remorse shown by an offender for an offence, can only be taken into account if: "(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)" 43It is relevant in this context to consider the evidence of the circumstances of the offender's arrest, the entry of his plea, which itself may be accepted as evidencing remorse, and the other evidence which sheds light on the offender having such remorse. 44It was not in issue that the offender has limited intellectual capacity, but there was no suggestion that he was incapable of understanding his offending. 45The offender's phone services were lawfully intercepted by police, between 1 and 5 December 2010. In phone conversations then recorded the offender's mother spoke to him about surrendering to police. He also discussed with her his probable sentence. After DNA identification of his blood, on execution of a search warrant on 8 December 2012, the offender was found hiding in a cupboard at premises where his two co-offenders were also present. He was then arrested and charged. After arrest he admitted his involvement in the murder, to a fellow inmate. On 13 December the offender also discussed the circumstances of the offence with two other inmates. 46The two co-offenders were arrested and charged with murder in June and July 2012, after they also allegedly had made admissions as to their involvement. They are both awaiting trial. It was in 2013 that the offender admitted his guilt by entry of his plea. That was plainly not motivated by the course which the other offenders have taken. 47The psychologist found that the offender did not display any mood or psychomotor disturbance; that his thought processes were logical and coherent in theory and content; and that there was no evidence of thought disorder, delusional thinking, or hallucinatory experiences. There were no reported mental health problems, apart perhaps from certain anger management issues. The offender was, however, assessed to have limited intellectual skills, commensurate with reported school difficulties, early cessation of formal schooling, lack of formal qualifications and failure to progress to structured employment. 48In the light of that assessment, it seems to me that it must be accepted that the offender has limited ability to verbalise the sentiment of remorse. Taking this limitation into account, I am satisfied that there is evidence that the offender has accepted responsibility for his actions, and has acknowledged the injury and loss which he has caused. 49That was established by what the offender said about his offence to another inmate after his arrest; by the later entry of his plea; and by what he later told the psychologist of his regret at Mr Davies' death. He then said that it had not been meant to happen, that he wished it had not happened; and that he thought about it, every night. The psychologist considered that what the offender had told her did evidence his remorse. 50Real remorse was also reflected in his acceptance on sentencing, that he had responsibility for the acts of his co-offenders, as well as for his own acts. It was also revealed by the letters written by Mr Gray and Ms Smith, who are both in contact with the offender. He still has the support of family members and friends in the community, who have not given up on him and will support him on release. Both Mr Gray and Ms Smith believe what the offender has told them, that he regrets what has happened. He has also told Ms Smith of his sorrow at Mr Davies' death. 51These accounts are consistent with the other evidence I have referred to, which in my assessment, do provide a basis for accepting that there is real remorse on the offender's part for the death that he has caused.

[8]

The offender's personal circumstances 52Consideration must also be given to the evidence of the offender's personal circumstances. 53The offender is an aboriginal man, who was aged some 27 years at the time of his offence. He is now aged some 30 years. As I have explained, he is a man of limited intelligence, with a long history of alcohol and drug abuse. He also has a considerable criminal record. 54The account which he gave the psychologist was that he had been born and raised in Kempsey. His parents were both of Aboriginal ethnicity. He was their only child. Their relationship broke down when he was aged 5 years. He did not know the reason, having no memory of any discord between them. His mother then raised him alone until he was 12 years of age. He had a good relationship with her, but had no ongoing contact with his father. 55The offender's mother formed a new relationship when he was around 12 years old. He has three siblings from this relationship. He initially had a strained relationship with his stepfather, who was involved in alcohol and cannabis abuse. He had regular verbal arguments and two physical fights with his stepfather, before their relationship improved when he was aged 15 years. 56The offender reported being an uncontrollable child, negatively influenced by cousins and peers. He suffered certain physical abuse from his mother, who struggled to place limits on his behaviour. He regularly absconded from home after the age of 12 or 13, but otherwise resided at home. 57The offender disliked education and struggled with reading. He truanted from school and in year 8 transferred to TAFE, which he attended for approximately two years. He never obtained any formal school qualifications and had no experience of employment. 58Remarkably, the offender had no health problems, despite a history of significant substance abuse from age 13, when he commenced smoking cannabis. He soon began smoking a combination of cannabis and heroin daily, until he began serving a custodial sentence when aged 20. He reported that he had engaged in thieving, in order to support this habit. 59The offender abstained from drugs while in custody and for some two years after release, but then engaged in alcohol abuse. This resulted in one to two day episodes of binge drinking, about twice weekly. He then resumed his criminal activities, behaving aggressively when intoxicated. 60In 2006, while drug free, after release from custody, the offender entered a relationship, which produced a child. The relationship deteriorated and from November 2008 he returned to smoking cannabis and heroin daily and also engaged in episodes of excessive alcohol use. There was domestic violence, with the result that the relationship dissolved in 2009. He had seen his daughter only once, since she was aged eight weeks. 61The offender has in the past completed drug and alcohol programs while in custody and, between 2006 and 2008, participated in a residential rehabilitation project at The Haven in Lismore. He left after three weeks, because he did not consider that he had an alcohol problem. He also had about three months of individual counselling in the community. 62The offender accepted that in sentencing, his subjective circumstances had a smaller role to play than the seriousness of his offending. It was also accepted that his drug taking and alcohol abuse did not mitigate his offence, but it was submitted that it provided some explanation as to the circumstances in which it came to be committed.

[9]

Deterrence 63The circumstances of this offence and the offender's personal circumstances are such that there can be no question that both general and specific deterrence must feature in the sentence which is imposed. 64The offender has a considerable criminal record dating back to 1997. There are repeated stealing, break and enter, destroying property, drug, robbery, assault, stalking and driving offences. He was at liberty on parole for only a month when he murdered Mr Davies, while attempting to rob him, in order to support his drug habit. 65The psychologist was of the opinion that having in mind the reservations which she explained as to risk assessment and risk management, that the offender presented a moderate to high risk of violent recidivism. She identified various risk management factors, including the offender's prior violence and multiple vulnerabilities. She concluded that the offender's main recidivism risks were a relapse to his previous pattern of alcohol and drug misuse upon release, entrenched antisocial attitudes, and anger and aggression problems. 66Participation in the Violent Offender Treatment Program and drug and alcohol programs whilst in custody were recommended, as was a DAS program for depression, anxiety and stress. A long term residential rehabilitation program was also recommended on release, as well as regular drug screening and motivational counselling, to ease the offender's eventual transition back into the community. The psychologist considered that this should be supported by a lengthy period of supervision by the Community Offender Service, to ensure that the offender had stable accommodation on release and was avoiding drug and alcohol using peers. He would also require employment assistance. 67In the face of this evidence it is apparent that the sentences which have been imposed upon the offender in the past, have not provided the necessary deterrence to bring his continuing offending to an end. To the contrary, the seriousness of his offending has escalated. 68Given his history and the obvious serious risk of re-offending which the offender poses, once released, it follows that in this case specific deterrence must have a considerable role to play in the sentence which is imposed on the offender, in order to drive home the need for him to bring his repeated, violent offending to an end.

[11]

Comparable cases 73A number of other cases were relied on, in order to support the offender's submissions that the objective seriousness of his offence falls within the middle of the range and that the Court would not impose the standard non-parole period of 20 years. It was also submitted that the Court would have regard to: 1. the absence of a specific intention to kill; 2. the offenders not being armed upon arrival, entering Mr Davies' home with an intention to steal/rob; 3. the plea of guilty; and 4. the offender's youth. 74Care must always be taken in making comparisons with other decided cases, given the very differing factual circumstances with which each of those cases were concerned. The offender must be sentenced on the basis of what the evidence establishes in his case. 75The authorities relied on provided but little assistance in the sentencing exercise. They reflected sentences ranging from 27 years, with a non-parole period of 18 years, after a trial, to 16 years, with a non-parole period for 12 years, after a plea. They also dealt with circumstances quite different to those which have arisen to be dealt with in this case. 76True it is that I have concluded that the evidence does not establish that the offender had an intention to kill. As discussed in the authorities, however, whether there was an intention to kill is an important question in an assessment of where a murder lies in the range of objective gravity, but of itself is not necessarily determinative. There may be circumstances where an intention to inflict grievous bodily harm can reflect similar criminality to cases involving an intention to kill. All of the relevant circumstances must be weighed in the balance in arriving at an appropriate sentence for the particular offence for which a sentence is being imposed (see for example the discussion in Tran v R [2011] NSWCCA 116 by Hidden J at [39] and Johnson J at [44] - [45]). 77Those circumstances included that the offender was an adult in 2010 when he committed this most serious of offences, albeit he was then aged only 27 years. At that relatively young age he already had an extensive criminal record, which dated back to 1997. It was a record of increasing seriousness, which included an earlier break, enter and assault. In the result, it seems to me that the offender's age can be given but little weight in this sentencing exercise. 78There was no evidence that the offenders were not armed when they broke into Mr Davies' home. Whether they were then armed or not, was not dealt with in the evidence. What must be considered in this regard is that on the offender's own account to the psychologist, he was certainly prepared to use violence, in order to achieve his aim in that break in. 79In my assessment, having considered all of the matters which must be weighed in the balance, I have come to the view that the evidence establishes that this was an offence which was somewhat more serious than the mid-range of such offences. The result of this sentencing exercise will, however, be a non-parole period below the standard 20 years fixed for such an offence, reflective of the 18% discount which I have determined the offender must receive for his plea.

[12]

Special circumstances 80The offender submitted that special circumstances would be found in his case, even though he had previously re-offended, when given liberty on parole. This was because his need for assistance on release would not be obviated by a lengthy sentence and that a period of lengthy supervision would be required, in order that his successful rehabilitation be promoted. It was argued that this would be not only to his benefit, but also that of the community, participation in necessary rehabilitation programs and the benefit of a long period of supervision, reducing the risk of his further recidivism. 81Despite these submissions, I am of the view that there should not be any finding of special circumstances in this case. 82It is apparent from all of the evidence that this offence is but the latest and most serious in a long series of offences, in which the seriousness of the criminality involved has escalated to the most serious of all offences, murder. Apart from the entry of his plea and the remorse which I have accepted the offender has shown, there is little in the evidence which suggests that the offender does not present a considerable risk of further offending in the future. 83To the contrary, the psychologist's assessment is that the offender poses a moderate to high risk of violent re-offending. 84What the offender said led the psychologist to consider that while he did have a degree of remorse, that "he endorsed an attitude that seemingly condoned instrumental violence"; that there were multiple risk factors which remained unaddressed; and that they raised the risk that the offender would re-offend in a violent manner. 85I am satisfied that the evidence established a proper basis for those assessments. This offender plainly presents a considerable risk that he will engage in further violent offending, once released. 86On the basis of his history, the psychologist recommended as long a period of supervision in the community as possible for this offender. She considered it unlikely that there would be much change in the offender's behaviour, until the dynamics underlying his offending behaviour were addressed. Given the risk of further offending which he presented, the psychologist was strongly of the view that the offender requires a considerable period of close supervision, when released into the community. 87When the offender is likely to be released, will depend in part on the advantage which the offender takes of the opportunity available to him in custody, to successfully pursue programs which will assist in reducing his risk of re-offending, when released, particularly through abstinence from drugs and alcohol. Those steps lie in the offender's hands. 88On the evidence, he will certainly require the closest and most careful supervision, whenever he is released, given the nature of his record, the seriousness of this offence and the obvious risk which he presents of further violent offending, once released. 89In my assessment, however, given the sentence necessarily to be imposed upon him, the result of the statutory ratio will provide such a period of supervision. In the result, there is no need for any finding of special circumstances.

R v Smith

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