R v Smith

Supreme Court of NSW|2014-08-08|Before: Garling J, Hunt CJ

Judgment 1On 20 January 2013, Graham Smith shot and killed Joshua George in Gidley Crescent at Claymore, New South Wales. 2He did so by firing a .22 calibre rifle directly at Mr George. The single bullet entered Mr George's body, slightly above the sternal notch, travelled through his body, causing major damage to his principal organs and extensive bleeding. He died almost immediately. 3Mr Smith fled the scene of the shooting, and was not arrested until the evening of 24 January 2013. He has been in custody ever since. He was charged with murder. 4On 2 October 2013, Mr Smith was committed by the Local Court at Blacktown to the Supreme Court for trial on a charge of murder. On 1 November 2013, when arraigned in the Supreme Court, Mr Smith pleaded not guilty. On 12 May 2013, when arraigned in front of the jury, Mr Smith pleaded not guilty to the charge of murder, and the trial proceeded. 5On 4 June 2014, the jury returned a verdict of not guilty of murder, but guilty of manslaughter. A conviction for that offence was entered on that day by the Court. 6It is now time for Mr Smith to be sentenced for his crime. 7The Crimes Act 1900 provides a maximum term of imprisonment for the offence of manslaughter of 25 years. There is no standard non-parole period fixed by the legislation.

The Facts 14In order to make findings of fact which are consistent with the jury's verdict, those findings will reflect my view that Mr Smith is guilty of manslaughter because, even though he deliberately shot Mr George intending to cause him grievous bodily harm, there was a reasonable possibility that Mr Smith believed that shooting Mr George was necessary to defend himself. I am also satisfied that the force that Mr Smith used to defend himself, namely shooting Mr George, was not a reasonable response to the circumstances as Mr Smith perceived them to be. That force was obviously excessive. 15In the process of finding the relevant facts, it is necessary for me to specifically record that I am quite unable to accept the truth of the offender's evidence. 16In fact, I am satisfied that Mr Smith gave little, if any, truthful evidence, and I am unable to accept his evidence unless it constituted an admission against his interest, or else if it is independently corroborated. 17He was a thoroughly unconvincing witness. He was argumentative, he swore at the cross-examiner, he made statements that were patently untrue about the way in which he had been dealt with by the police after his arrest, and when he gave that evidence he must have known the statements to be untrue. He pretended a failure of memory when it suited him, most particularly with respect to evidence he gave about the wearing of blue disposable gloves at the time of the shooting, and he deliberately exaggerated (as he later admitted) his evidence in a way which was, he thought, favourable to his case. 18Accordingly, finding these facts to the requisite degree of satisfaction involved findings largely based on evidence other than that of the offender. 19I find the facts of the matter, which are consistent with the verdict of the jury, to be as follows. 20Mr Smith (the offender) was born in June 1991, and so, was 21 years old at the time he shot Joshua George. 21Joshua George (the deceased) was born in May 1988 and was, accordingly, 24 years old when he died. He was about three years older than the offender. Mr George was about 1.77 metres tall and about 92 kilograms at the time he died. Mr Smith said that he weighed about 110 kilograms and his physique was described as stocky. 22Mr Smith and Mr George had known each for most of their lives. Mr Smith said that he regarded Mr George as his cousin, although they were not in fact related by blood. They had been particularly close for a period of nine months or so prior to the shooting, when they shared a common interest in smoking methylamphetamine (ice), and consuming other illicit drugs. 23The offender and the deceased formed part of an informal group of young male friends which included at various times some or all of the accused, the deceased, Jarrod Perkins, Noel Nicholson and Matty Finn. Various members of this group were together during the course of 19 January 2013, the day before the shooting. Initially they were at the house of the offender at 25 Salvana Way, Claymore, and then later at the house of Nicole Smith at St Helen's Park. 24Various members of the group were sparring together against each other with boxing gloves. It appears that the offender may have hit Jarrod Perkins with one or more "cheap shots", the evidence is unclear, which caused a degree of tension. On any view that tension seems, by the late evening of 19 January 2013, to have subsided. 25During the late evening of 19 January 2013, and early on 20 January 2013, some of this group of young men were consuming illicit drugs to a varying extent, whilst at Ms Nicole Smith's house. 26Apparently through boredom, the group left Nicole Smith's house some time around 3.00am or so. The offender and the deceased were dropped off at Airds and made their way to the home of Ms Carly Miller, in that suburb. Whilst at Ms Miller's house, there was evidence of varying quality, but sufficient to satisfy me, that both the Mr Smith and Mr George smoked ice. The quantity smoked is not established. 27At about 8.00am or thereabouts, the deceased and his friend, Alan Phillips, who was commonly referred to as Fester, went to the BP Service Station at Airds. After purchasing a supply of cigarettes, they returned to Ms Miller's house. 28Upon their return, the offender confronted the deceased. He alleged in a verbal argument, that Fester was a "writing statement dog". This was an expression used to identify a person who provided a written statement to police. I am well satisfied that the offender got very angry with the deceased, whom he perceived to be wrongly sticking up for Fester. 29A verbal argument continued and moved outside Ms Miller's house. It continued up the street towards Airds High School. During that time, I am satisfied that the offender, who was the principal aggressor and who had collected a pair of metal bicycle forks from the carport at Ms Miller's house, swung them at the deceased in an attempt to hit him. Although the offender swung the bicycle forks on a number of occasions, he connected only once with the deceased in the region of the upper arm. 30By that stage, the deceased had armed himself with a piece of timber in an attempt to defend himself against this assault. During the course of this assault, the offender called out to the deceased "You are a dog, you are a dog, I'm going to smash your head in". The deceased yelled at him that he should "drop the forks and fight like a man". There was a further verbal interchange. It seemingly broke apart. As the two men separated, the offender called out the deceased "you're a dead man Joshie George". 31The deceased left the scene, and went to his mother's house. He told her what had happened that morning. Whilst at the house, the deceased was heard to say that he wanted to go and smash Winfield. Winfield was the name by which the offender, Mr Smith, was generally known. The deceased collected a black backpack from his mother's house. 32The deceased then made his way to the home of Mr Grant Perkins and Ms Jamaine Ronayne at Claymore. He also visited the house of his close friend, Mr Daniel Shaw, and collected a set of knuckledusters from him. The deceased told Mr Shaw "We're going to sort it out today. We are going to have a one-on-one later today." The term "one-on-one", as used in that conversation, was taken to be, and was so I am satisfied, a reference to a fist-fight. It was for that reason that the deceased collected the knuckledusters. 33During the course of that morning, there was considerable telephone discussion either verbally or by text message, between the deceased on the one hand and Mr Jarrod Perkins on the other, and Mr Jarrod Perkins and the offender, Mr Smith. I am well satisfied that Mr Jarrod Perkins was attempting to put in place the arrangements for the one-on-one fist-fight between the accused and the deceased, which was designed to sort out the differences which had arisen between them as a result of the offender having hit the deceased with the metal bicycle forks during the course of the earlier incident outside Airds High School. 34There had been a number of fist-fights between the deceased and the offender prior to this day. The offender had generally come off second-best in those fist-fights. That was why he had picked up the bicycle forks just before his fight with the deceased at Airds earlier that morning. 35The offender seems to have spent the morning driving around whilst the various phone calls were being made. The unsatisfactory nature of the evidence means that the Court is not really in a position to be satisfied as to precisely where and with whom the offender went and if the offender did consume drugs, what type they were and how much he consumed. 36Shortly after 1pm, the deceased, Mr Grant Perkins and Ms Ronayne visited the Claymore shops to obtain refreshments. Whilst they were at the Claymore shops, I am satisfied that final arrangements were made to meet for the fist-fight. 37It seems clear that the offender must have anticipated the presence of, at least, Mr Jarrod Perkins, who was the go-between in arranging the fist-fight. In advance of the arranged meeting for the fist-fight between himself and the deceased, the offender decided that he would arm himself with a loaded rifle. He says that he did so because he thought that he was being "set up" by Jarrod Perkins and the deceased. I am unable to accept this proffered reason. Rather, I am satisfied, beyond reasonable doubt, that the offender chose to arm himself with a rifle, which he knew to be loaded, because in earlier fist-fights with the deceased the offender had generally come off second best. In advance of the first fight that morning, he had armed himself with an available weapon, namely the bicycle forks. Again, he armed himself with a readily available weapon for the arranged fist-fight that afternoon. That weapon was the loaded rifle. 38I am satisfied that by this stage of the day, the deceased had, over the last 12 hours or so, consumed a quantity of methylamphetamine by smoking it. However, the evidence does not permit a finding, even on the balance of probabilities, about the quantity that the offender may have smoked. 39Nevertheless, it is clear that by 1.27pm the offender was in possession of the rifle. At that time he was seen by an independent witness to be walking along a pathway heading towards Gidley Crescent and his home at 25 Salvana Way, Claymore, with the rifle wrapped in a blue tarpaulin. He was wearing blue plastic disposable gloves. He did this to avoid being identified as the user of the rifle by leaving his fingerprints on it. 40Regardless of precisely where the one-on-one fist-fight was arranged to occur, I am satisfied that shortly prior to the shooting at about 1.30pm, the deceased, in the company of Mr Grant Perkins and Ms Ronayne, was walking along Gidley Crescent, to the meeting, in a generally southerly direction. They were walking on the tarred road surface, and generally in a single file with Ms Ronayne in front. 41The offender, armed with the loaded rifle, had by that stage made his way into the backyard of his house. The back fence of that house was a wooden paling fence of about chest height. The offender was standing behind that paling fence with his loaded rifle, waiting for the deceased. 42The objective evidence as to where the deceased was seen to be lying on the road after the shooting, together with the investigations made at the scene by police investigators, the results of which are contained in various sketches and photographs, satisfy me beyond reasonable doubt, that at the time the deceased was shot, he was standing on the road surface, about 10 metres or so away from where the offender was waiting behind the paling fence. 43Whilst standing in those respective positions, there was a verbal dispute between the deceased and the offender. Mr Grant Perkins, and perhaps Ms Ronayne, seems also to have contributed verbally. By this time, I am satisfied that Mr Jarrod Perkins had also arrived on the scene. 44In these circumstances, there was no doubt that the accused was confronted by three males. The evidence satisfies me that Mr Jarrod Perkins was in possession of the black backpack that the deceased had earlier collected from his mother's house. I am so satisfied, because the CCTV footage of the deceased at the Claymore shops which was taken shortly before the shooting, showed that the deceased was not in possession of the black backpack. It also showed that neither Mr Grant Perkins nor Ms Ronayne were in possession of the backpack. As it was found at the scene of the shooting, I am satisfied that it must have been brought there by Mr Jarrod Perkins. 45Notwithstanding the claims of the offender, I am not satisfied that any of Mr Grant Perkins, Mr Jarrod Perkins, Ms Ronayne or the deceased were carrying any weapons which were on display, or in any way visible to the offender. Whilst the deceased was in possession of a set of knuckledusters, they were concealed from view in a pocket of his jeans. The black backpack which contained weapons was not open, and the contents of it were not visible to the offender. 46In the course of the verbal confrontation, I am satisfied that the offender, whose ability to perceive what was happening was, to some extent, affected by his deliberate consumption of drugs, probably a combination of methylamphetamine and Xanax tablets, formed the view that he was going to be physically attacked by the three males present, although all that in fact occurred was an exchange of verbal insults. No doubt this exchange heightened his pre-existing sense of fear. Accordingly, the offender formed the view that it was necessary to defend himself. Having formed that view, he promptly fired a shot from the loaded .22 calibre rifle, which was aimed directly at the deceased. As I have earlier indicated, the bullet penetrated the deceased's body, slightly above the sternal notch and caused injuries from which he died almost instantly. 47I do not accept the evidence of Mr Smith that he also feared that his family was at risk of serious harm. They were not present anywhere in or near the house at the time. The arrangement that lead to the verbal confrontation only concerned the offender and the deceased, and was the means by which they were settling their differences. It had nothing to do with his family. 48Whilst I accept that the offender had formed a belief that it was necessary to defend himself, I am equally satisfied that the force which he used, namely, firing the rifle at the deceased, was quite unreasonable. It was manifestly excessive. 49As I have said, the deceased did not in fact, have any weapons upon him, other than the concealed knuckledusters. His intention, and the arrangement, was that a fist-fight would occur. The presence of Mr Grant Perkins and Mr Jarrod Perkins, I accept, increased the fear which the offender felt. But, I am satisfied they were present as the "go betweens" who wished to ensure a reasonably fair fist-fight, at least in accordance with the rules of the young men of Claymore. In those circumstances, the presence of the loaded rifle as a weapon could not be justified. 50Further, firing the rifle directly at the deceased was a grossly excessive response. There is no reason why the offender could not have fired the rifle in the air or towards the ground or in some way used it in an attempt to scare off the three men who were, after all, on the other side of the paling fence from the offender, yelling insults and inviting the offender to come out from behind the fence and "fight like a man". 51As well, there is no reason to think that the offender could not have run away from the scene, as he did just moments later after he had shot and killed the deceased. He also could have put the gun down and not used it at all to defend himself. 52I am in no doubt that when he fired the rifle, the offender intended to cause injury to the deceased. As is recorded in the Pre-Sentence Report dated 11 June 2014, the offender's state of mind with respect to the deceased on that day was that "... it was either him or me that day". 53Accordingly, for those reasons, I am satisfied that the force used by Mr Smith was manifestly excessive. Those findings are consistent with the jury's verdict that the offender is guilty of manslaughter, and not murder. 54Accordingly, to summarise, I am satisfied beyond reasonable doubt that against a background of a long friendship and temporary disharmony, early on the day in question there had been a physical assault perpetrated upon Mr George by Mr Smith. This assault escalated the tension that was felt between them. An arrangement was made to resolve that tension by having a supervised one-on-one fist-fight. The supervisors were to be Mr Grant Perkins and Mr Jarrod Perkins. Mr Jarrod Perkins was the go-between who arranged the fist-fight. In preparation for the fist-fight, the offender armed himself with a loaded .22 calibre rifle and waited behind his back fence for the deceased. 55In the course of a verbal confrontation which followed when the deceased, Mr Grant Perkins and Mr Jarrod Perkins arrived in the general vicinity of the back of the offender's house, the offender formed the belief that it was necessary to defend himself and, as a consequence, shot and killed the deceased. No doubt Mr Smith was to some extent affected by drugs, which partly explains, but does not mitigate, his conduct 56The shooting and killing of the deceased was not a reasonable response to the belief that the offender had that it was necessary to defend himself. There were many other things that the offender could have done to defend himself quite adequately, but he chose not do so. 57The offender, Graham Smith, comes to be sentenced for the manslaughter of his friend, the deceased, Joshua George, upon the basis of a manifestly excessive response to the circumstances in which he was placed.

Police Investigation 58After the shooting, the police secured the crime scene, but not very well, because Mr Jarrod Perkins managed to remove the knuckledusters that were lying on the roadway near where the deceased had fallen. The difficulties which the Police had in that task were exacerbated by the general antagonism and lack of co-operation by the large crowd which quickly gathered at the scene. Such was the mood of the crowd, and the potential danger to the ambulance officers who attended, that they felt unsafe and unable to complete their treatment of Mr George at the scene. He was quickly placed into the ambulance and taken to Campbelltown Hospital. Behaviour of that kind, at the scene of a crime and in those circumstances, is unfathomable and is to be deprecated. 59The offender fled the scene, disposed of the weapon, and showered and changed his clothes. The weapon and the offender's clothes have never been recovered. 60The offender visited the home of his father late that evening, where his de facto partner was. His family urged him to hand himself in and told him that the police were looking for him. The offender disregarded this advice and continued his flight from the police. 61Eventually, the offender was arrested at Blacktown Railway Station on 24 January 2013. At the time he was arrested, he was clearly seriously affected by drugs that he had taken during his time fleeing from the police. Although the police purported to conduct an electronically recorded interview, and recorded a procedure in which forensic sampling and photographs were taken, it must be said that the accused was not in a fit state to give his voluntary and free consent. Although he said various things on the video interview, I cannot place any reliance upon anything that he said.

Specific Statutory Considerations 62Section 21A of the Crimes (Sentencing Procedure) Act 1999, identifies a number of matters which the Parliament has provided as aggravating factors to which regard must be had in determining the appropriate sentence to be imposed. As well, there are matters that mitigate any sentence to which regard must also be had. It is appropriate to commence with those aggravating factors, which I regard as relevant and applicable in these circumstances. 63In having regard to the aggravating factors where such a factor may be regarded as being an integral part of the offence, it is not to be considered separately. 64It is an aggravating factor if the offender has a record of previous convictions, which is the case here, particularly if he has a record of previous convictions for a serious personal violence offence and, as is the case here, he is being sentenced for a serious personal violence offence: s 21A(2)(d). 65The offender's criminal history commenced in November 2007. He was then 16. His offending as a juvenile ought be disregarded as it was relatively minor and he was young. But since becoming an adult, besides some minor offences that are not presently relevant, the offender committed two offences of serious personal violence before he killed Mr George. 66The first of these offences occurred in September 2009. It resulted in a conviction for an offence against s 59(1) of the Crimes Act of assault occasioning actual bodily harm. The circumstances of that offence are not before this Court, but I note that the offender was sentenced to a term of imprisonment for his crime. 67On 10 December 2010, the offender was convicted in the District Court of NSW of an offence against s 35(1) of the Crimes Act 1900, of recklessly causing grievous bodily harm whilst in company. That was his second serious personal violence offence. The offender was sentenced to a not insignificant period of imprisonment which reflected the seriousness of this offence. 68I will take these previous offences into account as an aggravating factor in accordance with decided authority: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566. 69Another aggravating factor that is to be taken into account is the fact that the offence was committed whilst the offender was on conditional liberty in relation to an offence: s 21A(2)(j). The offender was on parole at the time of this offence. On 10 December 2010, the offender was sentenced to a term of imprisonment of 3 years for the offence against s 35(1) of the Crimes Act. That term of imprisonment of 3 years was ordered to commence on 10 February 2010 and conclude on 9 February 2013. The offender was released to supervised parole on 9 August 2011. A non-parole period of 18 months was specified. It follows that on 20 January 2013, the offender was on parole for the offence against s 35(1) of the Crimes Act. I will take this into account as an aggravating factor. 70Here, it means that greater weight needs to be placed on the need for personal deterrence of the offender in considering this sentence. 71There are some mitigating factors listed in s 21A of the Crimes (Sentencing Procedure) Act 1999 to which it is relevant to refer. 72The first matter to which it is necessary to refer is that the offence was not part of a planned or organised criminal activity: s 21A(3)(b). The manslaughter occurred because of an excessive response to a belief that it was necessary for the offender to defend himself. It was not part of a planned or organised criminal activity. However, in the particular circumstances, where the offender took a loaded weapon to the arranged fist-fight, this factor carries little weight. 73It is a mitigating factor if an offender is provoked by a victim: s 21A(3)(c). I do not take provocation in this provision to simply reflect the defence of provocation legislated for under the Crimes Act. Here, I will have regard to the fact that the reaction of the offender was provoked by the presence of the deceased and the others, and the conduct of the deceased in reaching for what the offender thought was a weapon. However, having regard to the fact that the verdict was one of manslaughter, and that is the offence which I am sentencing for, little weight can be accorded separately to this factor. 74It is a mitigating factor if an offender does not have any record, or significant record, of previous convictions: s 21A(3)(e). Here the offender has a poor record. Whilst this of itself, and except in the way which I have described above, does not operate as an aggravating factor, it does mean that there is no mitigation of the sentence by reason of the offender's past. 75There is a difficult question as to Mr Smith's prospects of rehabilitation, and his likelihood of re-offending: s 21A(3)(g) and s 21A(3)(h). These are matters which, if established, are mitigating factors. Shortly put, I am not satisfied that I can make a finding that the offender is a person who is unlikely to re-offend, nor am I satisfied that I can make a finding that he has good prospects of rehabilitation. The report of Dr Richard Furst, a consultant forensic psychiatrist, was tendered on behalf of the offender. It concludes that Mr Smith meets the criteria for a number of mental disorders, including a substance abuse disorder and an anxiety disorder. He thinks it likely that Mr Smith has Attention Deficit Hyperactivity Disorder. Dr Furst also concludes that it is possible that there is an emerging serious mental illness such as bipolar disorder. Dr Furst recommends that Mr Smith remain under the care of a psychiatrist and mental health staff whilst in custody. He expresses the view that Mr Smith has a moderate risk of re-offending over the longer term which may be reduced by abstention from illicit drugs, undertaking programs and accepting rehabilitation. 76I accept Dr Furst's opinion, which means that I cannot make findings about a risk of re-offending and prospects of rehabilitation that would mitigate the sentence to be imposed. The absence of these findings does not aggravate the sentence, it only means that, in these respects, there is no mitigation. 77Where an offender shows remorse for his offence, that can be regarded by the Court as a mitigating factor: see s 21A(3)(i). In order to have this taken into account in his favour, the offender must provide evidence that he has accepted responsibility for his actions, and has acknowledged any injury, loss or damage caused by his actions. 78At the conclusion of his examination-in-chief, the offender was asked this question and gave this answer: "Q. Is there anything you want to say to his family? A. Yeh, I don't know what to say. Like, there is nothing I can - I just - if there was something else I could have done believe me I would have done that. I would never do that to Josh. Yeh. I'm so sorry. Yeh." 79This was a thoroughly unconvincing expression of any remorse for his actions, and a thoroughly unconvincing statement of acceptance of any responsibility for the death of the deceased. I simply did not believe it, and it was delivered in a way which did not persuade me, at that time, that the offender had any remorse whatsoever for what he had done. 80However, since then in interviews with the Senior Community Corrections Officer and with Dr Furst, and as well, in a letter which he has written to the Court, there does seem to have been some expressions of remorse, particularly it seems that he acknowledges the injury and loss which his crime has caused to Mr George's family. I will take these matters into account.

Plea of Guilty 81It is agreed between the Crown and the offender, that the offender offered to plead guilty to the offence of manslaughter upon the basis that he acted in self-defence, although the force that he used was excessive. That offer was made on 2 September 2013, which was one month prior to the offender being committed for trial by the Local Court. The Crown did not accept the offer. 82An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: R v Oinonen [1999] NSWCCA 310; R v Johnson [2003] NSWCCA 129. 83Here, the offender is entitled to a full discount for this early offer to plead guilty. It is appropriate that I allow a discount of 25% upon any sentence that would otherwise be imposed.

The Offender's Criminality 84It is appropriate to make an assessment of the objective criminality involved in the offender's offence. This is to be assessed without reference to matters personal to the offender, and is to be assessed wholly by reference to the nature and circumstance of the offence: Muldrock at [27]. 85In my assessment the criminality is very serious. The offender has shot and killed his friend of many years in a manifestly excessive response to the circumstances in which he was placed. He has gone to an arranged fist-fight with a loaded weapon. The shooting of his friend was not an accident, but was done with the intention of causing him serious harm. Whilst he felt the need to defend himself, it was not lawful for him to do so in this excessive manner. 86It was because his shooting was an excessive response to the circumstances in which he found himself that he has been convicted of manslaughter. 87Manslaughter is an offence that can be constituted by a wide variety of factual circumstances. However, each circumstance has a constant that a human life has been feloniously taken, which is a key element in the assessment of the gravity of the circumstances of each offence. 88As I have earlier said, I am satisfied that in the circumstances of this case, the response in which Mr Smith engaged by way of self-defence was manifestly excessive. I regard this case as showing why the offence of manslaughter is properly regarded as a major crime, and this case is a most serious example of it.

Victim Impact Statements 89The Court has heard statements read on behalf of Ms Nicole Smith, who was the partner of Mr George, and the mother of their three year old daughter. 90Clearly this crime has touched Ms Smith and her daughter, and no doubt all of the members of the Mr George's family. Mr George's daughter, who is only three years old, has been left without a father and is to be cared for by her mother alone. She will grow up without ever really knowing her father and enjoying his love and affection. 91I will have such regard to this evidence as the law permits: R v Previtera [1997] 94 A Crim R 76; s 28 Crimes (Sentencing Procedure) Act. I note that the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 does not apply here because Mr Smith was convicted before 1 July 2014.

Subjective Circumstances of the Offender 92The offender is now 23 years old. He was 21 when he killed the deceased. He is still a young man. 93He grew up in difficult circumstances. His parents separated when he was young. He has lived most of his life with, and grew up in the care of, his father and stepmother. The family in which he grew up has a total of nine children, four half-brothers and four half-sisters. He has a reasonable relationship now with his mother and the rest of his family. 94The offender attended school until Year 8 when, at about the minimum age possible, he left school. His literacy skills are limited. He had some period of employment as an apprentice butcher and seems to have worked intermittently since that time. At the time of the shooting he was undertaking some casual work as a scaffolder. 95He has been in a relationship with his partner for seven years and is the father of 2 young children. That relationship has continued whilst he has been in custody. 96As the reports show, he has a history of alcohol and drug abuse from a relatively young age. This abuse has seemingly led him into criminal behaviour. His criminal history reflects this. It has escalated over time. 97I have earlier referred to the conclusions of Dr Furst about Mr Smith's mental health, and there is no need to repeat them. I have taken them carefully into account. Dr Furst suggests that Mr Smith's underlying tendency towards anxiety and paranoid thinking was probably exacerbated by his drug taking in the hours leading up to the shooting. To the extent that his opinion offers an explanation for what happened, I will have regard to it.

Sentence 98In considering the appropriate sentence to be imposed on Mr Smith, I commence with a reminder that manslaughter involves the unlawful taking of a human life. It is a violation of the sanctity of human life, which is the concept at the heart of a civilised community. 99Ordinarily, a conviction for manslaughter of the seriousness here found, warrants a substantial sentence because the demands of punishment and the deterrence of the broader community against similar conduct are of great importance. Here, there is a need to ensure that any sentence imposed will deter Mr Smith from committing further criminal offences. 100I have discussed all of the facts that are relevant to this decision, and it is now necessary to make a value judgment as to what the appropriate sentence is. 101This is a very serious offence involving the killing of a young man. Without regard to any discount for his plea of guilty, but taking into account all of the objective and subjective factors to which I have referred, the appropriate sentence is one of a total of 16 years imprisonment. 102However, that sentence is reduced because of his plea of guilty to a total of 12 years imprisonment. 103It is necessary to determine an appropriate period for the offender to serve as a non-parole period. This requires attention to be paid to the question of special circumstances. I am not satisfied that I should make a finding of special circumstance as the law permits: s 44(2) Crime (Sentencing Procedure) Act. Whilst the offender has a need for rehabilitation to continue upon release back into the community, I do not see that the period provided in the statute would be inadequate for that purpose. 104The non-parole period ought be 9 years. 105I am well satisfied that the nature and seriousness of the crime means that any lesser penalty, notwithstanding the subjective factors which weigh in favour of Mr Smith, would not be adequate to punish him, to deter him, and others, from committing similar offences and to denounce the crime.

Offence of Serious Personal Violence 106I am required to warn Mr Smith, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006, and the fact that that Act applies to the offence of which he has been convicted, and for which he is being sentenced. At some future point in time, an application may be made that, notwithstanding the completion of his sentence, he nevertheless ought be detained in ongoing custody or else ought be the subject of an extended supervision order impacting upon his liberty.

Date for commencement of Sentence 107Mr Smith was arrested, and taken into custody on 24 January 2013. His parole was revoked, and he served the balance of his earlier sentence. This means that he has been in custody solely with respect to this offence since 12 February 2013. It is appropriate for this sentence to commence on that date.

Sentence 108Mr Smith, I sentence you to the following term of imprisonment: (1)A non-parole period of 9 years commencing on 12 February 2013 and concluding on 11 February 2022; (2)A balance of term of 3 years expiring on 11 February 2025; (3)The first day upon which you will be eligible to be released from custody is 11 February 2022.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2014

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