HIS HONOUR: Justin Shawn John Smith was arraigned and tried before a jury at Coffs Harbour commencing on 9 November 2020 on a single charge that on or about 5 January 2019 at New Lambton Heights in the State of New South Wales he did murder Luke William Freeman. Alternative verdicts of manslaughter, assault occasioning death whilst intoxicated and assault occasioning death were left for the jury's consideration. On 19 November 2020, the jury returned a verdict that Mr Smith was not guilty of murder but guilty of the alternative count of assault occasioning death while intoxicated: s 25A(2) of the Crimes Act 1900. Mr Smith is now to be sentenced for that offence.
[2]
Factual basis for sentence
I consider that, consistently with the jury's verdict, Mr Smith should be sentenced upon the following facts.
As at 5 January 2019, Mr Smith was 33 years old and had known Katrina Marshall for approximately 10 years as a close friend. Their relationship had never been intimate. Ms Marshall was then 28 years old and had commenced an intimate relationship with Mr Freeman, who was the same age. Although they did not live together, Mr Freeman had stayed several nights with her since Christmas at the home she shared with her brother, Daniel Marshall.
On the afternoon of 4 January 2019, Ms Marshall, Mr Freeman and Mr Marshall commenced drinking alcohol at their home at 7 Gardenia Way, South Grafton. During that afternoon, Ms Marshall invited Mr Smith to join them. Mr Smith arrived at approximately 7pm with a bottle of beer. When he met Mr Freeman they shook hands. Mr Smith noted that Mr Freeman gripped his hand so firmly that it felt like he was crushing it. By early that evening, the three of them had drunk a carton of full strength beer and were intoxicated. They continued thereafter to drink wine from a four litre cask.
Between 8.25pm and 8.28pm, the three of them took photographs of themselves together. Somewhat later, at about 12.58am the following morning, Ms Marshall recorded a short video of Mr Freeman and Mr Smith dancing together in the loungeroom.
Around 9.30pm, they all went for a swim in a small above ground swimming pool in the backyard. While they were swimming, Ms Marshall's younger brother Adam arrived with a four litre cask of wine that he started to drink. He also began consuming cannabis and socialising. Mr Smith also consumed a small amount of cannabis.
At about this time, an argument erupted between Mr Freeman and Mr Smith. It appears that Mr Freeman became jealous and accused Mr Smith of being romantically interested in Ms Marshall. Mr Smith insisted that he was not but that he loved her only as a friend. Adam Marshall told them to "shut up and just get over it".
Daniel Marshall stopped drinking at around 10pm and went to bed about midnight. By the early hours of 5 January 2019, the other three had finished drinking the first cask of wine and had begun to consume the second. Mr Freeman and Ms Marshall were extremely intoxicated. Mr Smith was also significantly intoxicated.
At about 3.30am, the argument between Mr Freeman and Mr Smith flared up again in the loungeroom. Mr Freeman became aggressive and said to Mr Smith, "come on, do you wanna go then, let's go outside". Ms Marshall told them to stop being stupid and to "shut up and get over it". Mr Smith replied, saying, "alright, I'm leaving, I'm gunna call a cab" and walked into the kitchen.
When he was in the kitchen, Mr Smith heard Mr Freeman say aggressively, "I'm going to kill this cunt" and saw him walk towards the front door. Mr Smith saw Mr Freeman bend over as if to pick something up from the floor near the front door and say, "I'm going to cave this cunt's head in".
Mr Smith took a knife from a knife block in the kitchen and re-entered the loungeroom with the knife held out in front of him. Mr Smith perceived that Mr Freeman was picking up a pole from the floor, so he ran at him with the knife in his right hand and attempted to knock the pole from Mr Freeman's hand by swinging his left hand downwards onto Mr Freeman's arm.
Mr Smith hit Mr Freeman with the knife in a way that was not of itself dangerous but it caused Mr Freeman to turn abruptly and move towards Mr Smith, thereby impaling himself upon the knife. Mr Freeman sustained a wound to his left lateral chest area and an internal injury to his diaphragm. Mr Smith pulled the knife back so that the full length of the blade did not penetrate Mr Freeman. Adam Marshall then immediately jumped up and onto Mr Smith's back, placing him in a headlock with his right arm. Mr Marshall punched Mr Smith in the back of the head with his left hand.
Mr Smith was then holding the knife at waist height, with it pointing forward. Mr Smith hit Mr Freeman with the knife in a way that was not of itself dangerous but which, combined with Mr Freeman moving forward towards him, caused a deep stab wound to the right side of his umbilicus. This stab wound involved injury to the mesentery, bowel, intestines and the posterior and inferior aorta and caused significant internal bleeding.
Ms Marshall quickly intervened, took the knife from Mr Smith and told him to leave. Mr Smith immediately did so and walked out of the house. He was arrested soon after by police responding to a 000 call made by Adam Marshall.
Mr Freeman was taken by ambulance to Coffs Harbour Hospital where he underwent an emergency laparotomy before being transferred to John Hunter Hospital where he underwent further surgery. He died there from wound related complications, including blood loss and multi-organ failure.
It is clear from the jury verdict that they did not consider that Mr Smith had deliberately stabbed Mr Freeman with an intention to kill or to cause him really serious injury. It is equally clear that the jury did not consider that Mr Freeman's death was occasioned in circumstances where Mr Smith was acting in self-defence. Moreover, by reason of the manner in which the jury were instructed on the availability of the possible alternative verdict of manslaughter, it follows that they were not satisfied that Mr Freeman's death was caused by any act performed by Mr Smith that was both unlawful and dangerous.
It was submitted by the Crown that, consistently with the verdict, I could find beyond reasonable doubt that Mr Smith deliberately stabbed Mr Freeman twice. As available and logically attractive as that proposition may have appeared at the close of the evidence led in the trial, any such finding must necessarily have been rendered unavailable by the jury's verdict. If Mr Smith had deliberately stabbed Mr Freeman with a knife, it would necessarily have been both unlawful and dangerous. At the very least, quite apart from the obvious rejection of manslaughter by reason of excessive self-defence, the rejection of manslaughter as an available alternative verdict must also carry with it the inevitable inference that the jury were not satisfied that anything Mr Smith did was both unlawful and dangerous. Additionally, and to similar effect, the verdict that was in fact delivered indicates that the jury must have concluded that Mr Smith assaulted Mr Freeman in a way that was not dangerous, because the assault itself must by definition have been unlawful.
[3]
Subjective case
Mr Smith is 35 years of age and turns 36 in November this year. His father is a Wiradjuri man and his mother is of European Australian descent. Mr Smith's father suffered from a psychiatric illness that manifested in delusions of grandeur and led to him receiving treatment with antipsychotic medication.
Mr Smith grew up in Campbelltown and attended school in the area until he moved with his family to Grafton when he was 16. He completed Years 11 and 12 at South Grafton High and gained entry to university based upon his Aboriginal heritage. He completed several years of Forensic Science at Newcastle University but struggled with depression and dropped out without completing his degree. He has worked in a number of jobs including labouring, lawn mowing, in retail, at a call centre, at a shoe shop, as a bank teller, at a restaurant and as a gyprocker. Mr Smith was in a long-term relationship for approximately eight years from which he has a son with whom he has no contact. He formed another relationship that concluded after about one year in 2018 after an incident in which he sustained a stab wound to his abdomen requiring surgery. Following that, Mr Smith moved back to live with his mother at South Grafton. He was living with her at the time of the incident that gives rise to these proceedings.
[4]
Psychiatric evidence
Mr Smith has a significant history of mental illness. At the time of the offence he was prescribed Abilify 400mg every three weeks by way of injection. His last injection before the offence was administered on 24 December 2018. Mr Smith had his first reported manic episode when he was 24 after taking medication prescribed for depression, resulting in a period of hospitalisation.
In his report dated 7 October 2019, Dr Olav Nielssen reviewed Mr Smith's psychiatric history in the following terms:
"The notes include correspondence from a psychiatrist, Dr Michael Pack, who made a diagnosis of a manic episode of bipolar disorder during an admission from 3 April 2012, and prescribed the antipsychotic olanzapine (Zyprexa). There were discharge summaries from further admissions from 1 September 2013 to 4 October 2013 and 5 December 2013 to 2 January 2014, during which Mr Smith was diagnosed with schizoaffective disorder and treated with paliperidone injections.
Lismore Hospital records confirm the history of an involuntary admission to the hospital from 20 July 2018 to 24 July 2018 because of deliberate self-harm on the background of schizoaffective disorder. The trigger for the admission was the loss of his job and his relationship. He was detained as a mentally disordered person under the Mental Health Act. No symptoms of schizophrenia were reported while in hospital on that occasion, but the frequency of injections of aripiprazole (Abilify) 400mg was changed every four weeks to every three weeks.
The hospital records confirm the history of admission for treatment of what was described as a self-inflicted stab wound to the abdomen on 19 November 2018. The injury was reported to have taken place during an argument with his partner over her drinking. Recent stressors were reported to include job loss, bullying and separation. There was a history of cannabis use. He was observed in hospital for three days and discharged to live with his mother with a prescription of pain relieving medication, and with more frequent (three weekly) aripiprazole injections."
Dr Nielssen concluded his report with an opinion that included the following:
"Mr Smith's schizoaffective disorder is an underlying condition, within the meaning of s 23A of the Crimes Act. His underlying condition may have given rise to an abnormal state of mind, as he reported that he heard Mr Freeman threatening to kill him, which he wondered might have been an hallucination, as the words were not reported in the statement by the other people who were present. His perception of threat might have been increased by the consequences of the stabbing injury sustained in the course of the altercation involving his former girlfriend a few weeks earlier. However, the impairment in his perception of events and capacity for self-control was also affected by the large quantity of cannabis and alcohol consumed that evening, which would appear to limit the availability of the defence of substantial impairment by abnormality of mind.
Mr Smith has a chronic form of mental illness, for which he is likely to require indefinite treatment by a mental health service. His condition appears to be quite responsive to treatment, and he is currently symptom free as a result of consistent treatment in a largely substance free environment. He has some strengths, including a history of tertiary education and employment. His longer term prognosis would appear to be related to the course of his substance use disorder."
Mr Smith has no criminal record and is otherwise a person of good character.
[5]
Remorse and contrition
Mr Smith did not give evidence in the sentencing proceedings. He was not psychiatrically examined after his trial. Mr Smith maintained at all times, as he was entitled to do, that he was not guilty of any offence arising out of the incident that led to Mr Freeman's death. Unsurprisingly, no submissions were made on his behalf concerning remorse or contrition. It follows in these circumstances that Mr Smith is not entitled to the benefit of any finding that he is either remorseful or contrite.
[6]
Deterrence
It seems to me to be reasonably clear, if only as a matter of language, that notions of general deterrence proceed upon acceptance of the hypothesis that there exists a demonstrable relationship between the likelihood of the commission of a particular offence in the future and the existence of a widely anticipated community appreciation or understanding of the type of punishments or sentences that have been imposed upon offenders who have committed it previously. In this context, spontaneous crimes of passion or unplanned reactive behaviour would appear, if only once again as a matter of language, to have less to contribute to general deterrence than cynical, well-planned crimes that have germinated in an atmosphere of calm reflection and conscious resolve.
Mr Smith's offence was not one that involved planning, or at least any planning that commenced earlier than his unfortunate decision to arm himself with a knife in the moments before he left the kitchen and walked towards Mr Freeman standing near the front door. On the other hand, Mr Smith's assault upon Mr Freeman was not the result of an impassioned loss of self-control to which he spontaneously reacted without thought. By Mr Smith's own account, he took a knife from a knife block in the kitchen and entered the loungeroom holding it with his right hand in front of him perceiving, once again on his account, that Mr Freeman was picking up a pole from the floor. This caused Mr Smith to run at Mr Freeman with the knife and to attempt to knock the pole from Mr Freeman's hand by striking his arm with his free hand.
Even allowing for the fact that Mr Smith's psychiatric condition may have contributed to the way in which he processed what he saw and heard, and so influenced his perception of the threat posed by Mr Freeman's conduct, thereby reducing his moral culpability, it is apparent even on his own account that he determined whilst carrying the knife to approach Mr Freeman and attempt to disarm him. To the extent that Mr Smith's offence can be characterised in that way, it was the result of a decision that he was neither forced to make nor that could not have been substituted by a different one. Mr Smith's offence followed directly from his decision to take a particular course of action. That decision, and the offence that resulted, should attract a sentence that recognises the need for general deterrence.
Conversely, it does not seem to me that Mr Smith will ever need reminding of the consequences for him of the offence for which he has been found guilty. I do not intend to impose a sentence that is influenced by the need for specific deterrence.
[7]
Prospects of rehabilitation
Aligned with my view that specific deterrence is not relevant is my related conclusion that Mr Smith is unlikely to reoffend. He had no criminal record before this offence was committed. I am encouraged by Dr Nielssen's opinion that Mr Smith's condition appears to be quite responsive to treatment and that his history of tertiary education and employment are positive indicators. Provided that Mr Smith remains under the care of an appropriate mental health practitioner, and masters his substance use disorder, his prospects of rehabilitation appear reasonable and the likelihood of him reoffending appears low.
[8]
Consideration
Mr Smith was found guilty of an offence contrary to s 25A(2) of the Crimes Act 1900. Section 25A of the Act provides as follows:
25A Assault causing death
(1) A person is guilty of an offence under this subsection if--
(a) the person assaults another person by intentionally hitting the other person with any part of the person's body or with an object held by the person, and
(b) the assault is not authorised or excused by law, and
(c) the assault causes the death of the other person.
Maximum penalty--Imprisonment for 20 years.
(2) A person who is of or above the age of 18 years is guilty of an offence under this subsection if the person commits an offence under subsection (1) when the person is intoxicated.
Maximum penalty--Imprisonment for 25 years.
…
(7) If on the trial of a person for murder or manslaughter the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1) or (2), the jury may acquit the person of murder or manslaughter and find the person guilty of an offence under subsection (1) or (2). The person is liable to punishment accordingly.
(8)…
Section 25B of the Act stipulates that an offence contrary to s 25A(2) shall carry a mandatory minimum sentence. That section is relevantly as follows:
25B Assault causing death when intoxicated--mandatory minimum sentence
(1) A court is required to impose a sentence of imprisonment of not less than 8 years on a person guilty of an offence under section 25A (2). Any non-parole period for the sentence is also required to be not less than 8 years.
(2) If this section requires a person to be sentenced to a minimum period of imprisonment, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or no sentence (or to impose a lesser non-parole period).
(3) Nothing in this section (apart from subsection (2)) affects the provisions of the Crimes (Sentencing Procedure) Act 1999 or any other Act or law relating to the sentencing of offenders.
(4) Nothing in this section affects the prerogative of mercy.
It has been uncontroversially conceded on behalf of Mr Smith that the offence committed by him is objectively serious. It was committed in a home and involved the use of a knife causing the death of an innocent person, although neither the use of the knife nor the possibly grave risk of death that it carried can be treated as separately aggravating features. Moreover, as already discussed, it must be also accepted that the verdict carries with it the perhaps somewhat strained conclusion that the manner in which Mr Smith assaulted Mr Freeman with the knife was not inherently dangerous. In my view the offence can be described as objectively serious without further adjectival qualification.
But what of the circumstances out of which it sprang? The evidence before the jury painted a not unfamiliar scene of superficial merriment, fuelled by alcohol and other substances, disguising the latent rivalry for a woman's attention between two men who were not otherwise particularly friendly. It is in the circumstances somewhat lame merely to suggest that this mix of factors and emotions got out of hand. Even having regard to the fact that the particularly aggressive comments that Mr Smith attributed to Mr Freeman would appear to have escaped the observation or perhaps the recollection of any other person present at the time, I am satisfied on the balance of probabilities that Mr Freeman threatened Mr Smith in the way he described. I am able to conclude that Mr Smith's reaction to the situation included a perception, significantly the product of his mental state, that he was under some kind of threat from Mr Freeman. However, I reject the suggestion that Mr Freeman was actually ever in possession of a metal pole, whatever Mr Smith might have thought about it.
It is clear that the legislative intention was to characterise assault causing death while intoxicated as a more serious offence than assault occasioning death: so much is apparent from the dissimilar maximum penalties that inform the sentencing exercise. I have had regard to the statutory regime in which Mr Smith's offence is to be found and I have necessarily taken it into account in forming my view as to what is a proper sentence in the circumstances of this case. The prescription of mandatory minimum sentences or mandatory minimum non-parole periods necessarily constrains the sentencing discretion, even to the point of creating considerable injustice in some circumstances: see, for example, Karim v R (2013) 83 NSWLR 268; [2013] NSWCCA 23 at [45]. I should indicate for the benefit of the parties that, but for this prescription, I would have imposed a different sentence on Mr Smith. The requirement that I must impose a non-parole period of 8 years significantly inhibits my ability properly or adequately to take account of Mr Smith's mental illness, or of any part it may have played in his ability to deal appropriately with the situation that confronted him.
[9]
Victim impact statements
In the way of things, a joint statement by Mr Freeman's parents and a statement by Mr Freeman's sister were read out or read in Court. I have taken account of those statements to the extent that I am permitted to do so.
[10]
Sentence
Justin Shawn John Smith, for the assault occasioning the death of Luke William Freeman whilst intoxicated, I sentence you to imprisonment for 10 years and 8 months commencing on 5 January 2019 and expiring on 4 September 2029 with a non-parole period of 8 years expiring on 4 January 2027. The first date upon which you will become eligible for release on parole is 5 January 2027.
[11]
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Decision last updated: 15 July 2021