[2001] HCA 67
Filippou v The Queen (2015) 256 CLR 47
[2005] HCA 25
McDowall v R [2019] NSWCCA 29 at
Misiepo v R [2017] NSWCCA 210
Muldrock v The Queen (2011) 244 CLR 120
Source
Original judgment source is linked above.
Catchwords
[2001] HCA 67
Filippou v The Queen (2015) 256 CLR 47[2005] HCA 25
McDowall v R [2019] NSWCCA 29 at
Misiepo v R [2017] NSWCCA 210
Muldrock v The Queen (2011) 244 CLR 120
Judgment (3 paragraphs)
[1]
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)
File Number(s): 2018/156965
[2]
REMARKS ON SENTENCE
HIS HONOUR: By an indictment dated 9 February 2021, Robert Bruce Smith ("the offender") was charged with two counts, that he:
1. on 18 May 2018, in in Argents Hill in the State of New South Wales, did murder Karine Polly Farrell ("the deceased"), contrary to s 18(1)(a) of the Crimes Act 1900 (NSW); and, in the alternative,
2. on 18 May 2018, in Argents Hill in the State of New South Wales, did unlawfully kill the deceased.
The offender was arraigned on that same day and pleaded not guilty to the first count and guilty to the alternative count of manslaughter. From the outset of the trial, he acknowledged by his counsel, Mr J Watts, that he had stabbed the deceased with ornamental knives. His defence was that he acted in self-defence. He also raised the partial defences of excessive self-defence and extreme provocation.
That plea was not accepted in full satisfaction of the indictment by the prosecution and the trial proceeded on the murder charge.
Before the matter was committed for trial, the offender had earlier offered to plead guilty to manslaughter in a written negotiations document whilst the matter was in the Local Court. Similarly, the Crown rejected that offer.
On 25 February 2021, following a 12 day trial before a jury of 12, the offender was found not guilty of murder, but guilty of the alternative count of manslaughter. I will find that in doing so the jury accepted the partial defence of excessive self-defence.
The offender was 56 years of age at the time of the offence. He has been in custody since his arrest on 18 May 2018.
In arriving at the offender's sentence, the purpose of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") must be borne in mind.
The maximum penalty for the offence of manslaughter is imprisonment for 25 years: s 24 of the Crimes Act. There is no prescribed standard non-parole period for this offence.
The maximum penalty for an offence is reserved for the gravest type of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452; see also: R v Dodd (1991) 57 A Crim R 349 ("Dodd") at 354, adopting the approach of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 ("Geddes") at 556.
That does not mean that a lesser penalty must be imposed if it be possible to envisage a more serious case; ingenuity can always conjure up a case of greater iniquity. A case which imposes the maximum penalty offends this principle only if the case is recognisably outside the gravest category: Veen v The Queen (No 2) (1988) 164 CLR 465 ("Veen") at 478; see also Hawkins v R (1993) 67 A Crim R 64 at 67.
The Crown properly did not contend that this matter constitutes a case in which the maximum penalty for manslaughter is appropriate and I will proceed upon that basis.
I turn then to principles applicable to the offence of manslaughter.
It is important to recall that there is no hierarchy of manslaughter verdicts and the seriousness of the offending is determined by reference to the facts of the killing and not the class of manslaughter: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [49] (per Howie J, with whom McClellan CJ at CL and Simpson J agreed); R v Isaacs (1997) 41 NSWLR 374 ("Isaacs") at 381 (per Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ).
In R v Blacklidge (Unreported, New South Wales Court of Criminal Appeal, 12 December 1994) ("Blacklidge") Gleeson CJ (with Grove and Ireland JJ agreeing) said:
It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.
However, Gleeson CJ also stated:
At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)
In the decision of R v MD, BM, NA, JT (2005) 156 A Crim R 372; [2005] NSWCCA 342, the Court of Criminal Appeal said (at [61]):
[61] … The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise for the protection of human life must be a fundamental objective of any criminal law system in a civilised society R v Edwards (1996) 90 A Crim R 510. There must be a reasonable proportionality between a sentence and the circumstances of the crime. The gravity of the offence must be viewed objectively. The maximum sentence fixed defines the limits of sentence for the most serious class of case: Dodd at 354, adopting the approach of Jordan CJ in Geddes at 556.
Fundamentally, a sentence should not be increased beyond that which is proportionate to the crime in order to extend the period of protection of the community: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [60] citing Veen at 472; Baumer v The Queen (1988) 166 CLR 51 at 57-58.
In R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184, a Crown appeal, Spigelman CJ (with Hulme & Adams JJ agreeing) said:
[44] … When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender where there was no intention to inflict such injury, which can vary significantly. Where there was such an intention, but murder was reduced to manslaughter by provocation or mental impairment, the degree of provocation or of impairment, also bearing on moral culpability, can also vary significantly.
In R v Loveridge [2014] NSWCCA 120, it was stated (at [229]):
[229] When sentencing for manslaughter, a court must always have regard to the full context in which death was caused: R v Hoerler at 531 [44]. The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of the offender: R v Hoerler at 531 [44]; R v Wilkinson (No 5) [2009] NSWSC 432 at [61].
Going to another matter of general principle, in R v MD, BM, NA, JT at [65] the Court said:
[65] In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, CCA 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.
In R v Winefield [2011] NSWSC 337, the importance of context in manslaughter was underlined by Fullerton J. Her Honour said at [30]:
[30] … As I have been at pains to make clear, I reject the offender's evidence that he acted in self-defence which, as Adams J said in R v Hamilton; R v Sandilands [2007] NSWSC 452 at [32], can operate in an appropriate case to place manslaughter by an unlawful and dangerous act in the lower range of objective seriousness.
Attention may then be diverted to more general principles of sentencing.
The offender's moral culpability for his offence must also be taken into account.
In sentencing, the Court must also consider the aggravating and mitigating factors, specified in s 21A of the Sentencing Act, revealed by the evidence. Under s 21A, any other objective or subjective factors revealed by the evidence, which affect the relative seriousness of the offender's offence, must also be taken into account.
Questions of general and specific deterrence may also be considered.
Further, all of the relevant factors must be taken into account by way of the instinctive synthesis which the High Court referred to in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. That requires that all of the factors relevant in the offender's case to be considered, their significance discussed and a value judgment as to the appropriate sentence for the offender's offending made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon the offender and the circumstances of the crimes he committed: R v Scott [2005] NSWCCA 152 at [15].
The sentencing judge is required to find the facts material to the sentence which emerged during the trial or in the course of the sentencing proceedings: see Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 ("Cheung") at [12]-[17]. In sentencing, it is for the Court to find the facts which are material to the exercise of the judicial discretion in sentencing (Isaacs at 378) having regard to the provisions of s 21A of the Sentencing Act. The sentencing judge will determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70]. Any findings of fact that are adverse to the offender must be proved beyond reasonable doubt. Matters in mitigation must be proved on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].
Before considering the circumstances of the offence and the offender, it is appropriate to make reference to the victim impact statements of the family members of the deceased: Miss Tikki Farrell, a daughter of the deceased, and Ms Catherine Arrigo, sister of the deceased.
The victim impact statements were supplied pursuant to s 28(2) of the Sentencing Act. The Crown applied that the Court's consideration take into account the victim impact statements pursuant to s 30E(3) of the Sentencing Act.
The victim impact statements "give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way" when the Court is taking into account one of the purposes of sentencing, "which is to recognise the harm done to the victim of the crime and the community": R v Halloun [2014] NSWSC 1705 at [46] (per McCallum J), cited with approval in Sumpton v R [2016] NSWCCA 162 at [153] (per Hoeben CJ at CL, with whom Hall and Bellew JJ agreed).
The fundamental and guiding principle must be that all life is sacred and of equal value and that equality before the law means that courts should not put a value on one life that is greater than another: see R v Hines (No 3) [2014] NSWSC 1273 at [78]-[84] (per Hamill J). The Court cannot try to put a value on an individual human life or what the loss of that life means to the loved ones of the deceased or the community in general and nor is that the purpose of punishment or the presentation of victim impact statements: see R v Barbetta [2008] NSWSC 688 at [18] (per Howie J).
When viewed in terms of the relevant principles, the Court is satisfied in this case that the effect on the immediate family is also an aspect of harm done to the community for the purposes of s 30E(3). No objection was taken by the offender with respect to Miss Farrell's statement. A potential issue was raised as to some parts of Ms Arrigo's statement which was not developed but I have had regard to the weight that should be attached to the statement. In that light I note that the deceased had care of two young children (including Miss Farrell) and a third who was in a boarding school (which circumstances were known to the offender at the time of the offence).
The Court acknowledges the understandable statements of grief that have been expressed by the deceased's family and the continuing impact that the manslaughter has had upon them. The effect on each of the members of the family differs but is profound and ongoing and recognised by the Court which listened closely to the reading of the victim impact statements of Miss Farrell and Ms Arrigo.
I do not propose to recite the entirety of their statements and expressions of hurt. I will, however, refer to some parts of their respective statements (bearing in mind the potential concerns expressed by Mr Watts).
Miss Farrell stated:
A few years ago my mother was killed. Due to the loss of her my life felt like it was never going to get better. Since she passed away I lost so many things that just made my life great and complete. I lost my sister, my dad (father figure), my mum, my home, my dogs, my family and friends. I had to live with another family.
…
Since my mum died there is no one I can relate to and I always feel bad for some of my classmates and teachers because I randomly get so mad in the middle of class where the only thing is to hit the wall/someone near me or stab myself with a pen. I've been so angry since my mum died some kids are scared of me I don't mean to hurt anyone or myself but I got to let it out like that.
Ms Arrigo stated:
Tikki went to her biological father's home. She was frightened and did not know what to do with her feelings. I do not know how it happened, or who told both girls that their mother was stabbed to death but they knew. Three years later, Tikki is just returning to some semblance of a normal life.
Polly's son, Jai, now has no parents in his life. He had to go to counselling and was so traumatised, he couldn't even talk about what had happened to his mother. His only support system now is a few friends who are his age (18).
My father (also Polly's father) thinks about her every day. He is now 87 years old. He lost his daughter and no parent should have to have to go through this. My mother has dementia but somehow she knows that Polly is gone. No one should have to go through losing their daughter, mother, sister in such a barbaric and violent act.
All manslaughters are examples of a very serious offence. Nonetheless, whilst it may be difficult for the deceased's surviving family members, to accept that this manslaughter should be categorised in seriousness relative to other manslaughters on the spectrum of such crimes, the Court has to pass sentence for such offences in a very wide variety of circumstances. The ranking of the seriousness of the offence does not detract from the gravity of the offence as all lives are treated as equally precious in the criminal law. Various factors determine whether the taking of a life should, in the particular circumstances of a crime, be more or less heavily punishable.
The fact-finding role following a jury verdict is that described in Isaacs (see also Cheung at [12]-[17]). The sentencing judge is required to find the facts relevant to sentencing. Some will emerge from the evidence at the trial while others may emerge only in the course of sentence.
I will commence my discussion of objective factors consistently with the constraint on the exercise of the aforementioned decision making role discussed in Isaacs at 378:
3. The primary constraint upon the power and duty of decision- making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell v The Queen (1995) 184 CLR 501. In the present case, for example, a trial judge might have considered that the facts supported a verdict of murder, not manslaughter; nevertheless, the judge would be obliged to sentence on the basis that the case was one of manslaughter. The fact that a judge may not agree with a jury's verdict, and thus may be required to sentence on a basis different from the judge's personal view of the case, is an inevitable consequence of the division of functions inherent in trial by jury.
I turn to the jury verdict.
There was no dispute that the jury verdict was consistent with the offender having the requisite intention to cause grievous bodily harm but that the prosecution had failed to satisfy the jury beyond reasonable doubt that a partial defence was excluded. There was a dispute as to whether the offender had an intention to kill. The jury verdict is consistent with the defence of self-defence, itself, not being made out. As mentioned, and as was accepted by the parties, the jury found the partial defence of excessive self-defence as made out, although I will find that the partial defence that the offender was acting under extreme provocation was not made out.
This conclusion is consistent with the provisions of ss 418, 419 and 421 of the Crimes Act. I shall, in that respect, elaborate by reference to the instructions given to the jury.
The jury was first instructed that:
The accused acted in self-defence if, and only if:
(1) The accused personally believed his conduct was necessary to defend himself; and
(2) His conduct was a reasonable response in the circumstances as he perceived them to be.
The jury was then further and secondly directed:
If the Crown has established beyond reasonable doubt the accused did not personally believe that it was necessary for him to do what he did to defend himself, then the Crown has proved that the accused was not acting in self-defence.
Should, however, the Crown have not persuaded you of that fact and, therefore, you are of the view that there is a reasonable possibility that the accused did believe that it was necessary for him to do what he did in defence of himself and his conduct was a reasonable response in the circumstances as he perceived them to be, the proper verdict is not guilty of murder and not guilty of manslaughter.
If you are of the view that there is a reasonable possibility that the accused did believe that it was necessary for him to do what he did in defence of himself but you are satisfied beyond reasonable doubt that the conduct of the accused was not a reasonable response to the circumstances as the accused perceived them to be, because the use of force by the accused was excessive or otherwise unreasonable, then provided the Crown has satisfied you beyond reasonable doubt of the essential legal elements, set out in paras 1 and 2 of the Summing-Up Document Number 2, the proper verdict is not guilty of murder but guilty of manslaughter.
Given the directions (and consistent with the fact that s 418 of the Crimes Act provides a complete defence), the jury verdict of manslaughter must be taken then as, consistently with the onus in s 419, that the Crown had negated self-defence on either basis set out in the first direction. The jury would have turned to the partial defence in the light of the directions.
Given the third component of the second direction and the acceptance by the jury of a partial defence (noting my finding against extreme provocation), and considering the terms of s 418, the jury must have accepted that the offender personally believed his conduct was necessary to defend himself but it was not a reasonable response in the circumstances as the offender perceived them to be either because of the use of force by the offender was excessive or otherwise unreasonable. Otherwise, the jury would not have accepted a verdict of manslaughter.
This conclusion may be reached directly having regard to the evidence.
The nature and extent of the wounds, consisting of two fatal penetrating sharp force injuries and numerous other sharp force injuries to the upper body of the deceased would plainly establish for the purposes of s 421 of the Crimes Act that the offender had used force that involved the infliction of death. The same consideration would support in my view a finding of an intention to cause grievous bodily harm.
It may also be accepted that the jury considered that the offender believed it was necessary to stab the deceased because the deceased had armed herself with a 112cm metal pipe. It is difficult to contemplate the jury (acting reasonably as may be presumed) could have reached a verdict that in order to defend himself, it was necessary for the offender to stab the deceased in that manner he did, in the absence of such a threat (in my view, even taking into account the offender's submissions, to which I will return, regarding the aggressive tendencies of the deceased). In other words, the jury must have considered that the offender believed it was necessary to stab the deceased as he was under the belief that the deceased posed a threat by the deceased availing herself of a weapon.
These considerations leave open for consideration the question of whether the offender had an intention to kill, and more broadly, the reasonableness of the offender's conduct when measured against the offender's perception of the circumstances he found himself in. Thus, the Court must evaluate the degree to which the response exceeds that which would be a reasonable response in the circumstances that existed: Smith v R [2015] NSWCCA 1903 ("Smith") at [56] and [58].
Those questions, and the conclusions I have thus far reached, require a closer examination of the objective circumstances of the offending. Given the conclusion reached by the jury, I will proceed upon the basis, as submitted by counsel for the offender, that the jury believed, in substance, what the offender said as to his intentions and what he perceived were the circumstances to which he was responding in the defence of himself. I will also return to that question of extreme provocation after that interval.
The offender and the deceased were neighbours for approximately four years prior to the death of the deceased. The offender resided at a residence in Argents Hill. The deceased also resided nearby in a residence at Argents Hill, with two of her three children, Tikki and Luka, aged 10 and 5, respectively, at the time of the offence. The deceased's eldest child, Jai, was attending boarding school at the time of the offence.
The deceased had previously been in a relationship with Mr Joshua Smith. Mr Smith is the father of Luka. Mr Smith is not a relative of the offender. The relationship between the deceased and Mr Smith ended some years prior to the offence. After a period of acrimony, the deceased and Mr Smith were able to amicably inter-relate and they shared the parenting responsibilities for Tikki and Luka.
The offender and the deceased commenced an intimate relationship at or about 12 months prior to the offence. The offender and deceased did not cohabitate during their relationship.
On 17 May 2018, the day prior to the offence, the offender and the deceased were travelling in the deceased's vehicle with Tikki and Luka. The offender was driving the deceased's vehicle and the deceased was in the front passenger seat.
The offender made the comment to the deceased, "I'm sick of your kids' shit". The deceased took offence to the criticism of her children and became angry with the offender. The deceased then assaulted the offender whilst he was driving, punching him in the face and causing his nose to bleed. The offender's blood was on the deceased's vehicle on the centre console, the steering wheel and on the driver's sun visor.
The offender told the deceased that their relationship was over and she was no longer welcome at his home.
There was evidence at the trial that the deceased had a tendency to assault and use physical violence against other people, including those with whom she was in a domestic relationship with. Mr Smith gave evidence that the deceased was hot tempered, with a tendency to react with physical violence when angered, and very capable of handling herself physically against men and women. Evidence was also adduced that the deceased would keep and use weapons, such as metal poles.
On 18 May 2018, Tikki and Luka attended their respective schools in Bowraville.
During the morning of 18 May 2018, the deceased and Mr Smith drove into Bowraville and Macksville. Whilst in Bowraville, the deceased and Mr Smith purchased alcohol. The deceased purchased a six-pack of pre-mixed UDL vodka and passionfruit cans.
The deceased and Mr Smith returned to the deceased's home with a friend, Mr Andrew Harte. The deceased began consuming the UDL cans she had purchased on the way home.
The deceased, Mr Smith and Mr Harte arrived back at the deceased's home at around lunch time. They found that the offender had returned four tyres that belonged to the deceased, leaving them in her driveway.
At around 2.00pm in the afternoon, the deceased decided to return a pair of work boots to the offender. The deceased drove by herself to the offender's home. When she left her home, the deceased was observed to be irate due to the argument with the offender the previous day and the subsequent break up of their relationship.
The deceased had consumed 5 UDL cans and had the sixth can open in the centre console of her vehicle as she drove to the offender's house. The deceased had also previously taken some prescription medications including benzodiazepines and an anti-psychotic. Professor Duflou, an expert called by the offender, opined that the levels of alcohol and benzodiazepines found in her body at autopsy were such that the deceased may have been more disinhibited which can cause a person with particular behavioural tendencies to be more inclined to behave in that way than when they are not intoxicated.
The deceased parked her car on the driveway near the entry to the offender's property, on the gravel verge between the property and the roadway. The deceased parked her car so that the left passenger side boot of the car was at or about 4.69 metres in the direction of the street from the offender's front gate (corresponding with Marker A which was placed at the crime scene by police, which was identified in Senior Sergeant Gane's evidence). Counsel for the offender submitted that, based on a drawing by the offender, the way the deceased parked her car was parallel or slightly on an angle to the front gate, rather than perpendicular to the front gate. Nothing turns on such considerations, but I am prepared to accept the submission of the offender based on the drawing by the offender in the evidence (Ex 22). The deceased walked up the offender's driveway to the offender's house through an open gate where the offender was seated on the front verandah. The exact length of the offender's driveway is not known. The deceased returned the offender's boots to him. The deceased did not offer violence toward the offender.
The offender told the deceased that she was not welcome and to leave his property. As the deceased made her way back to her car, the offender and the deceased resumed their argument from the previous day. During the course of the resumed argument, the offender said to the deceased, "No, I've had enough of you" and "I don't want to speak to you".
The offender said to the deceased, "Do you want to fuckin' have a go, do ya?". The deceased walked away, "saying shit", using the expression employed by the offender.
There was a change in the deceased's behaviour. The offender described this change as "…she fuckin' come on, then, silly, fuckin' silly…". The deceased ran to her parked car. As previously mentioned, the boot of the deceased's car was positioned at or around Marker A, situated outside the offender's property and towards the road. When the deceased reached her car, she opened the boot and took out a metal pole (also referred to as a "metal pipe" or "iron bar") which was 112 centimetres in length. The metal pole had lace wrapped around one end.
The deceased brandished the metal pole at the offender which made the offender believe the deceased was going to attack him with the metal pole. In body cam footage, the offender stated "Sh, sh, she came at me … she came at me with an iron bar …".
The offender had remained on his verandah whilst the deceased had moved back to her car. There were two ornamental knives on the offender's verandah (the exact location of which, prior to the stabbing, was unknown) which were contained in a box with other miscellaneous items. Those knives were a gift from his daughter. The knives had wavy, double-sided sharp blades and had replica snakeskin handles. The two knives were 16.2 and 16.3 centimetres in length, respectively. The offender grabbed these two knives and armed himself with one knife in each hand. It is the offender's case, which I accept, that he did not move from the verandah until confronted by the iron pipe.
However, the offender ran from his front verandah, armed with both knives, down his driveway, to where the deceased was. The offender said words to the effect of, "I went fuck you. I've had enough of ya" to the deceased.
The offender met the deceased at the boot of the deceased's car, which was at or around Marker A. Whilst the exact distance from the verandah to the front gate is not known, it is clear the deceased ran some distance to meet the deceased near the boot of her car, which was 4.69 metres beyond his front gate.
The deceased swung the metal pipe at the offender with a two-handed action at shoulder or head height. The offender ducked to avoid being hit by the metal pipe and stabbed the deceased repeatedly, in quick succession, to the upper body with the two knives. The offender inflicted a total of 10 sharp force injuries on the deceased, being 5 penetrating stab wounds and 5 incised wounds.
As mentioned, the confrontation began near the rear of the deceased's car, at or around Marker A. The deceased's blood was found on the tyre and rim of the rear passenger wheel, the passenger wheel panel and on the rear registration plate of the deceased's car. The significant pool of blood at Marker A indicates that the offender stabbed the deceased at around Marker A. A sample was taken of that apparent bloodstain, which matched the profile of the deceased.
There was movement between the offender and the deceased, indicated by the blood at police Marker B (again placed at the crime scene by police and referred to in Senior Sergeant Gane's evidence). Marker B was 2.12 metres east of the front property boundary. Marker B had the appearance of what was commonly described as a drip trail. A drip trail describes passive drops of blood that simply fall through the force of gravity from, for example, an object or a bleeding wound where there is also movement. A drip trail indicates that the surface from which the blood is forming is slowly moving.
Senior Sergeant Gane explained that Marker B was two to three metres away from the bloodstain in Marker A. It was closer to the house than Marker A. At least in the confined area above that stain it was potentially consistent with the deceased already bleeding, but in a standing position and moving around. Further, Senior Sergeant Gane explained that there was no evidence of a drip trail as I have mentioned between Markers A and B. The bloodstain in Marker B returned a positive confirmatory test for human blood and had a DNA profile matching that of the deceased.
There was also a blood stain of the deceased's on the rear passenger side of the deceased's vehicle that indicated that there was a close proximity between the offender and the deceased in that area near the vehicle.
Turning back to the chronology of the offence, the deceased lost her balance and the offender kicked the deceased. The deceased collapsed. The offender explained this to police in the following words, "She swung with the pipe … she missed. I got her a couple. She fell over".
In this light, an overarching submission by the Crown may be accepted. The presence of the deceased's blood on the rear passenger side of her vehicle, as well as the presence of an iron bar in the boot of the deceased's vehicle (where the offender had said he returned it) and the deceased's blood on the lace fabric and on the metal of the pole is consistent with this scenario: that the deceased had returned the boots on the verandah of the house and then returned to her car parked near the entry of the driveway. The deceased obtained the iron bar from the boot of her car, the offender obtained knives from near the door on his verandah and approached the deceased at the rear passenger side of her car and the incident occurred.
After the stabbing, the offender moved the deceased into the recovery position. However, this would not have had a beneficial effect.
The deceased became unconscious relatively quickly and, on the evidence of Dr Clifton and Professor Duflou, would have passed away within a matter of minutes.
The offender said he "panicked" due to the condition of the deceased and moved her out of sight from the roadway. The offender said he moved the deceased from where she had collapsed to where she was found (at police Marker F), 13 metres from the northern gatepost of the offender's property, by holding the deceased under her armpits and dragging her.
The deceased's jeans were observed by police to have been slightly pulled down but with the fly and button still done up. The deceased had abrasions found on her back which Dr Clifton, the expert called by the Crown, agreed would be consistent with the deceased being dragged over leaf litter and sticks.
The offender stated to Police in his electronically recorded interview ("the ERISP") that the deceased was still breathing when the offender moved the deceased into the hedge.
The offender then moved the deceased's car to the back of the house so that it was not visible from the roadway to ensure that Tikki and Luka's school buses would not stop at his property.
The offender washed the two knives he had used to stab the deceased under a tap at the back of his house. When asked by police later that evening, the offender could not recall where he had placed the knives.
The offender removed his blood-stained jeans and put them through a washing cycle in his washing machine.
I turn to some intervening events following the stabbing of the deceased. Mr Smith, who was at the deceased's home, expected the deceased to be away for five minutes to complete the errands of returning the offender's work boots to him. At about 2.30pm, as the deceased had not returned, Mr Smith rode a bicycle to the offender's home. He did not see the deceased or her car. The offender told Mr Smith he had not seen the deceased. Mr Smith stayed and consumed two VB beers with the offender.
Mr Smith remained at the offender's home until he saw Tikki's school bus drive past the offender's house. Mr Smith returned to the deceased's house and Tikki was dropped off by her school bus at the deceased's house.
Luka's school bus drove to the deceased's home. Mr Waine Bailey, the bus driver for Luka's school, attempted to drop her off at the deceased's home but could not locate anyone there. Mr Bailey returned Luka to the school in Bowraville. En route to the school, Mr Bailey stopped at the offender's house and asked the offender if he had seen the deceased. The offender told him: "She fucked off downtown a couple of hours ago with the shits about 12.30".
Unsuccessful efforts were made to contact the deceased by Luka's school. At 4.57pm the police were contacted by the principal of Luka's school.
After making some initial enquiries, police attended the deceased's home and collected Mr Smith, Mr Harte and Tikki.
On their way to Bowraville, the police stopped at the offender's home. The offender was asked about the whereabouts of the deceased and he said she had dropped off his shoes and then taken off in a hurry towards Bowraville.
After collecting Luka from her school, the police dropped Mr Smith, Tikki and Luka back to the deceased's home. Mr Harte did not return with them to the deceased's home.
The police called upon the offender again at his home. The offender confirmed that the deceased had come to his house at about 2.00pm. He was asked "Are you sure she definitely isn't here?" and he replied, "No she isn't here". None of those statements were true.
Senior Constable Brewster walked around to the back of the offender's home and found the deceased's car. When confronted with the information that the deceased's car had been found at the back of his house, the offender made admissions to killing the deceased. The offender advised police that the deceased's body was located nearby under a hedge.
As mentioned, the injuries sustained by the deceased during the offence were examined by the forensic pathologists, Dr Clifton and Professor Duflou.
The injuries were numbered by Dr Clifton. Neither Dr Clifton nor Professor Duflou opined as to the order of how the injuries were inflicted. Put simply, the number used to identify each injury was not indicative of the order in which the injuries were inflicted by the offender.
Dr Clifton opined that the cause of death was two penetrating sharp force injuries (two stab wounds to the chest). The two fatal stab wounds were referred to as "wound 1" and "wound 5", respectively.
Dr Clifton accepted that the combination of the two wounds led to death. She further opined that, on their own, each of the wounds was potentially fatal. Professor Duflou agreed with Dr Clifton's analysis as to the deceased's cause of death. I accept their conclusions.
I will briefly further consider the two fatal injuries.
Wound 1 was located in the central chest, 50 millimetres below the left nipple and to the left of the breast bone. The wound dimensions were 25 by 8 millimetres. It was orientated from the 12 to 6 o'clock position described as top to bottom. The shape was described as irregular and had a 2 millimetre tail extending inferiorly at the bottom of the wound. Dr Clifton opined that the likely explanation for the irregular shape was the movement of the blade as it entered and then exited the body.
As to what the sharp implement penetrated, wound 1 went into and just to the left of the sternum, also referred to as the breast bone, and damaged the third and fourth ribs as well as the sternum. The sternum is the structure between the two sides of the rib cage. The ribs are connected to the sternum by cartilage. Dr Clifton stated that wound 1 also penetrated the sack that surrounds the heart, the pericardium, and into the right ventricle of the heart, one of the lower and pumping chambers of the heart. It caused an 11 millimetre defect into the front of the heart muscle but did not go any further than the chamber. It did not breach the back of the heart.
As to the trajectory of the wound, a sharp implement went from the front of the body to the back of the body, slightly upwards and from left side to right side of the body. As to the depth of wound 1, an estimate of 120 millimetres plus or minus 30 millimetres was given. The purpose of the plus or minus measurement which added is to take into account factors that impact upon the depth, for example in the case of wound 1, blood around the heart which was not there when the wound was first inflicted which adds a theoretical depth to the overall wound. Therefore, the depth of wound 1 falls between 90 and 150 millimetres.
Professor Duflou explained that, in general, a stab to the heart would cause a person to lose consciousness within a short period of time such as a couple of minutes. He accepted that none of the deceased wounds would have necessarily caused her to immediately fall to the ground or to lose consciousness. He accepted that if the deceased did remain conscious and standing, the deceased may have attempted to protect herself. Professor Duflou accepted that given the injuries that the deceased sustained, particularly the stab wounds to the chest, placing her into the recovery position would not have had any meaningful effect.
Professor Duflou explained that there is nothing about wound 1 or that area of the body which indicated it was the body of the deceased that stopped the knife going in where it did as opposed to the action of the stabber that stopped the knife going any further. Professor Duflou's preferred interpretation was that the stabber withdrew the knife before it penetrated the body for its full length. This conclusion also followed with respect to other wounds. Professor Duflou opined that from observing the penetrating stab wounds and incised stab wounds, there likely was significant movement between the offender and the deceased. I accept his evidence in these respects.
Wound 5 was located in the left upper chest about 12 centimetres above the nipple and about 11 centimetres to the left of the middle of the body. The wound was 18 millimetres on its longest plane. Dr Clifton described it was an irregular‑appearing wound. The orientation of the wound was vertical or 12 to 6 o'clock.
Wound 5 travelled underneath the collar bone, also known as the clavicle, between the collar bone and the first rib and into the major vascular bundle that sits in that anatomical location, which is the subclavian vein and artery. The vascular bundle is an anatomical description of the bundle of blood vessels that supply blood through the arm and carry blood from the arm to the heart. Dr Clifton confirmed that there were also important nerves that travelled through the area that was penetrated namely the neurovascular bundle. As to the direction of wound 5, the wound is from front to back on the body from left to right and slightly upwards.
Professor Duflou agreed that it was possibly caused by a person generally in front of the deceased with a knife in their right hand. In cross‑examination Professor Duflou accepted that one possible explanation for wounds 2 and 5 travelling in opposing directions was that the stabber had a knife in each hand. Injury was caused to both the subclavian vein and the subclavian artery which supply to and feed blood back from the left arm to the heart. Dr Clifton further opined that injury was also caused to the very top of the lung which sits in the upper chest wall.
There was a 16 millimetre injury to the lung, the depth of the wound 5 was 120 millimetres plus or minus 30 millimetres. Professor Duflou explained that the track of wound 5 went slightly up and was front to back. Wound 5 entered the lung and caused damage to the lung itself. It entered the body a significant distance but it did not go through to the back of the chest wall into the back muscles or any structures of the back.
Dr Clifton accepted that this wound caused significant internal bleeding with 1.4 litres of blood accumulating in the lung directly from vessels that were disrupted.
The Crown submitted that the Court should find that, having regard to the nature and extent of the wounds to the deceased, including their depth and their location in the chest and heart areas, the offender had engaged in a sustained and persistent attack on the deceased which was commensurate with an intention to kill. It was submitted that, if the Court were not satisfied there was an intention to kill, then it should be found there was an intention to cause grievous bodily harm of "the highest order".
I do not accept that the Crown has established beyond reasonable doubt that the offender intended to kill the deceased at the time he stabbed her.
The infliction of multiple deep stab wounds to the upper body of the deceased, including the two fatal wounds I have earlier described, lay a foundation for the Crown's contentions in this respect. However, I do not consider the Crown has established this contention to the requisite standard essentially for three reasons:
1. The offender maintained, from an early time after the offence, as reflected consistently in the recording from the body worn video and from his ERISP, that he did not intend to kill the deceased when he stabbed her. He said he wanted to scare her and to avoid any aggression towards him by the deceased involving the use of a weapon. Those statements represent a cogent expression of his intentions.
2. He does use the expression, "I went fuck you. I've had enough of ya", which may indicate a state of mind, more consistent with the Crown's case, but that expression was used in the context of the iron bar being displayed by the deceased, his stated fear and the relatively short interval between the iron bar being brandished and the stabbing.
3. None of the wounds including the fatal ones penetrated the full length of the blades. I accept the submission for the offender that the evidence is consistent with the offender stabbing the deceased without plunging the knife into the body to the full length of the blade (by withdrawing the knife before it penetrated for its full length).
I am satisfied, however, that the Crown has, as accepted by the offender, established beyond reasonable doubt, the offender intended to cause grievous bodily harm to the deceased at the time he stabbed her causing death. That is established by the nature and extent of the wounds and their depth which, despite the knife penetration not reaching the hilt, nonetheless penetrated a considerable distance in particularly vulnerable parts of the body. I consider the grievous bodily harm inflicted, as demonstrated by the earlier discussion of the expert medical evidence, was of a relatively high order.
I consider the Crown established that the offender was not acting under extreme provocation. Putting aside the other elements of that partial defence, I am not satisfied that the conduct of the deceased, as outlined in the objective features of the offence, could have caused an ordinary person to lose control to the extent of intending to inflict grievous bodily harm on the deceased.
I turn then to the questions of reasonableness. The emphasis in s 421 is on the response of the offender in the circumstances as he perceived them, which calls for an evaluation of the degree to which the responses exceeded that which was a reasonable response if those circumstances occurred: Smith at [58].
The reasonableness of the offender's actions are to be assessed here having regard to first, what were the circumstances as the offender perceived them to be and, secondly, what, precisely, was the conduct that the offender believed was necessary in order to defend himself: Smith at [44]-[46].
There are elements of the offenders response which are supportive of the Crown submission that his actions were grossly unreasonable. Those were as follows:
1. At the time the deceased returned his boots and proceeded to her car, she did not offer violence, even though the argument from the previous day was resumed. The offender said he had had enough of the deceased.
2. The deceased escalated the confrontation by obtaining the metal pipe which would have produced fear in the offender. However, what followed substantially departed from a reasonable response. The offender armed himself with two knives and instead of approaching the offender with care or caution, particularly in the light of the violent proclivities relied upon by his counsel, ran at the deceased over some distance brandishing the knives. The offender demonstrated no hesitation or sense of caution in his approach.
3. Having observed the deceased obtain the metal pipe, the offender exhibited some resolve to deal with the challenge he was confronted with (although I will turn further to his mental conditions and their effect on his response below). However rapidly events unfolded, he was clear in his contemplation which he described as "Well, that, I'm sick of it, you know? I'm not, she, she's not gunna beat me up over it, you know?" and after referring to the continuance of the argument regarding the deceased's children the offender states "When she was going I says, You want to piss off mate, you know, I've had enough of you. And she went, Yeah fuck… and I says, Nuh, I'm not muckin' around mate. And so she's frickin' opened up the boot and she's came up with the bloody iron bar. I just ran down, I've had enough of you, girl, fuckin', see you, you know?" (although he had immediately then stated he did not wish to kill the deceased).
4. The offender said he did get the knives to scare the deceased or to confront her. But having avoided the swinging of the bar, managed to stab her on 10 separate occasions in or about the chest using two separate knives, without suffering injury himself.
Nonetheless, I agree with counsel for the offender that the following factors suggest the degree of his unreasonableness was less than extreme:
1. The circumstances encountered by the offender, after the initial encounter between the offender and the deceased returning his shoes, were quite fast moving, dynamic and emotionally charged.
2. The encounter on the previous day where he was driving a vehicle and during which he was punched and bled profusely, would have contributed to a sense of fear and an apprehension of the potential for the deceased to engage in an attack with the metal pipe.
3. The metal pipe would have contributed to a sense of a readiness and capacity by the deceased to inflict serious harm upon him. Mr Smith had the view that in any conflict between the deceased and the offender the deceased was quite capable of physically fighting the offender and beating him. Mr Smith opined that the offender would not have stood chance against the deceased armed with a weapon. In my view, the evidence is clear that the deceased was very physically fit, and able in confrontations.
4. The offender believed it was necessary for him to arm himself with knives and confront the deceased to defend himself from a potential attack with the weapon.
5. The offender stated: "I just wanted to scare her, to tell her to leave me alone, go away now". The deceased did not back down or lower the metal pipe but swung it with both hands at the offender at shoulder/head height causing him to duck. He avoided being struck but contact would have had the high likelihood of causing significant grievous bodily harm The stabbing occurred thereafter.
I will return to my final conclusion as to the issue of unreasonableness after considering some further relevant factors.
The deceased came onto the offender's property after being told the day before their relationship had ended and she was not welcome at his home. Likewise, she had been asked to leave on the day of the fatal confrontation, but rather remained and as I have mentioned, extracted from the boot of her car the metal pipe, an offensive weapon.
Further, I accept that the report of Ms Lisa Zipparo, Clinical Neuropsychologist, of 2 June 2021 demonstrates that the offender had Post-traumatic Stress Disorder ("PTSD") (or complex PTSD) and moderate to severe Alcohol and Cannabis Use Disorder at the time of the offence and that these conditions contributed to the offending by combining to cause a more extreme or impulsive response to his perception of a threat from the deceased. Ms Zipparo was not required for cross-examination and her conclusions flow from the history taken from the offender over three interview sessions (11 and 20 February 2019 and 28 May 2021) and various records provided to her.
At page 6 of that report, Ms Zipparo opined:
At a previous neuropsychological assessment in 2019, Mr Smith showed cognitive decline in processing speed and working memory and in frontal executive functioning. These deficits are likely due to a combination of trauma disorder, long term cannabis abuse and past potential brain injuries.
Mr Smith described experiencing symptoms of PTSD for most of his adult life, including being hyperalert to potential attack, having an exaggerated startle response, and strong anxiety responses to often benign stimuli. He described living with a constant state of dread which he alleviated with cannabis and alcohol. Given Mr Smith's difficult upbringing he is most likely suffering from the effects of Complex PTSD, compounded by his training in the armed services. Mr Smith self-medicated his anxiety symptoms with daily cannabis and alcohol abuse and did not report having ever sought medical treatment for his symptoms.
Ms Zipparo also opined:
At the time of the offence Mr Smith was therefore likely suffering from the following DSM-5 (2013) disorders:
a) Posttraumatic Stress Disorder (DSM-5 code 309.81 (F43.10); and
b) Moderate to Severe Alcohol (303.90) and Cannabis (304.30) Use Disorders. Based on Mr Smith's current description, he is most likely in sustained remission from both Alcohol and Cannabis Abuse Disorders due to being in a controlled environment.
Ms Zipparo further opined:
Mr Smith's lifelong fear of being attacked in combination with his observed executive dysfunction would have contributed to Mr Smith's extreme and impulsive response when threatened by Ms Farrell. Mr Smith noted that he constantly lived in a state of "waiting for something bad to happen", exacerbated by the paranoia caused by his cannabis abuse. He explained that his normal response as a result of having been a repeat victim of violence in his early life was to fight back, as "curling up in a corner" would mean "death".
…
Mr Smith described self-medicating with cannabis and alcohol for all his adult life to attempt to alleviate his panic and anxiety symptoms. However, he acknowledged that cannabis caused him to experience paranoid ideation which would likely have increased his state of hyper-alertness and hyper-reactivity to perceived threats.
In Lawson v R [2018] NSWCCA 215, the Court of Criminal Appeal opined at [34]-[37]:
[34] Where an offender suffers from a mental illness, the principles to be applied in sentencing are as summarised by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa at [177], in these terms (citations omitted):
(1) Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.
(2) It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.
(3) It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.
(4) It may reduce or eliminate the significance of specific deterrence.
(5) Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.
[35] It is settled that if the first of these principles is engaged, the reduction in moral culpability is taken into account as part of the evaluation of objective gravity of the offending. In Biddle v R [2017] NSWCCA 128 Hoeben CJ at CL (Rothman and Price JJ agreeing) said (at [68]):
[I]t is clear that this Court has followed the approach that an offender's mental condition, which must impact upon moral culpability, is a matter to be properly taken into account when assessing the objective seriousness of an offence.
[36] In support of this Hoeben CJ at CL referred to four earlier decisions of this Court dating from 2012, 2014 and 2015, for which it is not necessary to repeat the citations here. The position stated by the Chief Judge was reiterated in Yun v R [2017] NSWCCA 317 at [47] (Latham and Bellew JJ).
[37] Where the circumstances of a case attract principles 3, 4 and/or 5 from the summary given in Director of Public Prosecutions (Cth) v De La Rosa, those consequences of the offender's mental illness would properly be regarded as relevant to his or her subjective case. That is, the principles would bear upon the personal attributes of the offender rather than upon the objective gravity of the offending conduct.
Having regard to these principles and the report of Ms Zipparo as to the offender's mental conditions and their contribution to the offending, I consider that the mental conditions operating at the time of the offence had the effect, in my view, of reducing the offender's moral culpability and, as submitted on behalf of the offender, reduce the sentence that might otherwise be imposed.
The same factors make the offender a less appropriate vehicle for general deterrence which again will impact the sentence imposed, favourably for the offender. Nonetheless, I do not consider there is no need for general deterrence given the nature and severity of the offending in a domestic context.
When consideration is given to the aforementioned factors and, in particular, my assessment of the balancing of factors weighing upon an assessment of the degree of unreasonableness of the offender's actions, I do not consider the offender's unreasonableness may be properly described, as sought by the Crown, as gross or extreme, but it was nonetheless considerable.
Overall, I consider the offending is objectively serious. No party made submissions as to where the offending fell by reference to a range. It is unnecessary to place the objective seriousness of the offence in a range: McDowall v R [2019] NSWCCA 29 at [35]-[37] (per Adamson J, with Hoeben CJ at CL and Schmidt J agreeing), and I do not propose to do so in the circumstance of this offence.
The offender is presently 59 years of age. He has been in custody since his arrest on 18 May 2018.
The offender has a criminal history largely related to driving offences, although there is minor offences of assault and damage property in 2001 and 2005. The final entries in his criminal history relate to an offence involving a small amount of cannabis and a growing cannabis plant located during the police search following the current offence. I do not consider the criminal history of the offender to be significant. Certainly, there is nothing in the prior history which aggravates the offence for the purposes of s 21A(2)(d) of the Sentencing Act.
No aggravation arises from consideration of the provisions of s 21A(2)(g). The injuries sustained by the deceased were consistent with the offence of the kind committed. Whilst the victim impact statements demonstrate substantial harm to the family of the deceased, they may not properly be used as evidence to aggravate the offence: R v JK [2018] NSWSC 250 at [19] (per Hamill J).
I make no finding of aggravation from the use of a weapon because I have fully taken that consideration into account in assessing the objective seriousness of the offence.
The offenders' subjective circumstances were discussed in the reports of Ms Zipparo, dated 7 March 2019 and 2 June 2021, respectively. In the report dated 2 June 2021, at page 2, Ms Zipparo details a childhood characterised by significant violence by the offender's father toward him and his mother culminating in the offender's mother leaving when he was aged 5 years old. She recounts:
His father told him to make a choice between his mother and him while he was holding Mr Smith's mother at gunpoint. Mr Smith said that he stayed with his father because "he was the one with the gun and I was scared of him and didn't want to make him angry".
Ms Zipparo further recounted:
Mr Smith described his father as easily enraged and being in a constant state of "terror" as a child, describing learning to stick butter knives in door hinges to stop his father from forcing his way into rooms to give him a beating. He said he was "always scared" as a child, describing a fear of the dark and frequent bedwetting, for which his father would give him a "hiding".
At page 3 of her report, Ms Zipparo noted that the offender was surrounded by violence during his adolescence and was bashed several times including one particular incident where he received significant injuries from which it took several months to recover.
Mr Smith left school at the age of 16, without gaining his secondary school certificate, and worked in a number of unskilled jobs including on fishing boats and prawn trawlers before commencing a trade certificate in motorbike repairs and eventually joining the New Zealand army in 1985. He served 3 years in the infantry as part of a unit called the Ready Reaction Force after which he said he was "jumpy for years after that" and said that "it affected me more than I thought".
The offender also gave a report to Ms Zipparo in which he described suffering a serious motorbike accident which resulted in him sustaining a head injury causing amnesia. This resulted in him being hospitalised for several days before he self-discharged without any investigation of possible head injury by brain scan or other technique. He described severe dizziness for some 10 years after the accident and ongoing problems with balance, dizziness and memory. He also described other incidents resulting in head injuries over the years.
Ms Zipparo noted the offender's most significant relationship and enduring relationships have been with the mother of his three children and those children who are now aged in their twenties. He reported that they are his main emotional supports during his incarceration and that he maintained regular contact with them. Ms Zipparo detailed a history of cannabis use that commenced at age 15 and increased as the offender got older and resulted in the offender consuming approximately 10 joints per day for all of his adult life. Further, the offender drank at least 3 large bottles of beer daily for all of his adult life.
I consider the offender has reasonably good prospects of rehabilitation.
Ms Zipparo observed:
A current risk formulation utilising the Historical Clinical Risk Management-20 (HCR-20) scale estimates Mr Smith's risk of violent reoffending to be low to moderate. Mr Smith's experiences of trauma and victimization, adverse childrearing experiences, subsequent trauma disorder and life-long substance abuse are his main vulnerabilities
As a result of his traumatic upbringing, Mr Smith has reported long term symptoms of PTSD including being hyper-vigilant and hyper-reactive to perceived threats of violence. Mr Smith would benefit from trauma informed counselling to help him understand how his trauma background has detrimentally impacted his psychological wellbeing and behaviours. He would also benefit from drug and alcohol counselling to increase his understanding of his addictive behaviours and provide him with alternative coping tools.
Mr Smith commented that having abstained from drug use whilst incarcerated and commencing a regular exercise regime, had helped to reduce his anxiety. He has demonstrated a willingness to improve his mental and physical health and has demonstrated some rudimentary insights into his dysfunctional behaviours and lifestyle. Engaging in appropriate education and treatment programs will likely increase his self-insight and help him to alter his previous dysfunctional coping style, which should in turn decrease his risk of reoffending.
In that respect, I accept that the offender has used his time well in custody, particularly in the cabinet shop where he received good reports as to his work some of which were exhibited photographically before the Court. He has no offences in custody.
Similar considerations would permit a conclusion that the offender is unlikely to reoffend.
The Crown submitted that the offender's behaviour after the killing demonstrated a lack of remorse.
There is some substance to this submission. After the stabbing of the deceased, the offender: moved the deceased body under a hedge, and the deceased's car behind his house (which was only revealed after a search and inquiry by police), and washed the knives and his jeans. He lied about the movements of the deceased to the bus driver, Mr Bailey, the whereabouts of the deceased to the police on two occasions (the latter when the deceased vehicle was found) and to Mr Smith. I accept that it was sensible of him to not tell Mr Smith as the consequences to the offender would have been severe, however, this does not account for the offender sitting down with Mr Smith to have a beer while the deceased remained secreted away under the hedge in the front yard.
In some contrast, however the offender expressed regret to the deceased at the time of the offence and has gradually made expressions of remorse, although not in evidence given to the Court. He strongly expressed remorse to Ms Zipparo for the extreme response he gave to the circumstances he found himself in and for hurting the deceased. He did not recall the number of blows inflicted on the deceased (a position which may be accepted in light of the evidence of Dr Duflou).
The offender also expressed his regrets to his daughter and made a statement of remorse in a letter to the Court, which I consider was genuine.
It is generally preferable for offenders themselves to give evidence, if their remorse is to be accepted. In this case there is evidence of what the offender has told the assessing psychologist as to his remorse, which reflects a growing acceptance of his responsibility for what he has done. The early offer of a plea also reflects remorse as does his letter to the Court. In the circumstances, I accept that the offender has demonstrated remorse, albeit belatedly.
It was submitted by the offender that general deterrence would not carry less weight in this case because of medical conditions suffered by the offender and their contribution to the offence. I have accepted that these factors would reduce the need for general deterrence but not entirely eliminate the need for deterrence given the violent nature of this offence and its circumstances. I consider that general deterrence must, play a role but its contribution to sentencing is significantly reduced in the circumstances.
As mentioned earlier the offender pleaded not guilty to murder. He entered a guilty plea to the alternative count of manslaughter. The guilty plea to manslaughter was offered by the defence prior to committal. As was properly recognised by the Crown, pursuant to s 25E(3)(a) of the Sentencing Act the offender is entitled to a reduction of 25% in any sentence that would otherwise have been imposed.
The offender and the Crown both relied upon Smith as to principles applicable to the question of unreasonableness in considering the objective seriousness of the offence. Both parties also placed reliance, in that respect upon Pitts v R [2014] NSWCCA 244 ("Pitts").
In written submissions the counsel for the offender referred to eight authorities in addition to Pitt as comparable matters as follows: R v Boyd [2004] NSWSC 263; R v Price [2004] NSWSC 868; Stewart v R [2009] NSWCCA 152; Jones v R [2009] NSWCCA 169 ("Jones"); R v Good [2010] NSWCCA 402; Misiepo v R [2017] NSWCCA 210 ("Misiepo"); Anderson v R [2018] NSWCCA 49 ("Anderson"); and R v Fuller [2020] NSWSC 1580.
In oral submissions, counsel for the offender submitted that Anderson was not comparable because the case was more objectively serious and had features not found in this matter. It was submitted, the offender forced his way into the deceased's house and remained there after being asked to leave (including by physical force) and he physically resisted leaving by physical force over three women during which altercation the death occurred.
The Crown relied upon Anderson, Misiepo and Pitts.
The authorities relied upon by the parties had common elements of a manslaughter verdict arising out of the establishment of a partial defence in which the deceased was stabbed. However, it is useful to bear in mind the observations of Hoeben CJ at CL stated in Hamzy v R [2018] NSWCCA 53 at [175] as follows:
[175] It is well established that because the range of conduct and circumstances which can give rise to a conviction of manslaughter are so variable, the applicable sentences are also highly variable: Pitt v R [2014] NSWCCA 70 at [52]. It is rare for there to be any real comparability of facts even within a category of manslaughter (such as excessive self-defence: Vuni v R at [29]-[30]. Given the infinitely various circumstances, limited guidance is to be obtained from previously imposed sentences.
I have carefully considered all of the authorities referred to by the offender and the Crown and taken them into account in the consideration of the sentence to be imposed in this matter. I have been mindful of the guidance provided by those judgments and the sentences given in them, albeit in the context of the large variety of circumstances resulting in a conviction for manslaughter. Each sentence must be determined upon its own facts and circumstances as no two cases are the same.
The offender submitted that special circumstances might be found in this case. It is submitted that the Court could find special circumstances pursuant to s 44 of the Sentencing Act based on the need for the offender to undertake ongoing drug and alcohol counselling once released into the community and the desirability of supervision to monitor that process.
There can be little doubt that the offender will require supervision and treatment to readjust to community life.
I find special circumstances. I have earlier referred to Ms Ziparro's report referring to the long term effects of PTSD, the need for counselling in that respect, as well as drug and alcohol counselling. She opined that the offender demonstrated some rudimentary insight into his dysfunctional behaviours and lifestyle but that engaging in appropriate education and treatment programs will be necessary to improve himself and gain greater insights.
I have, however, made only a modest downward adjustment, in that respect, mindful of the avoidance of double counting and a non-parole period which adequately reflects the objective gravity of this violent taking of precious human life.
In all the circumstances, the only appropriate penalty is fulltime incarceration. In sentencing of the offender, I have had regard to the statutory guidelines of the maximum sentence (Muldrock at [27]) together with the circumstances bearing upon the objective seriousness of the offence and subjective features.
The offender has been in custody since his arrest on 18 May 2018. As accepted by the Crown, the sentence in this matter, will commence from the date of incarceration.
Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I am required to advise you, Mr Smith, of the existence of that Act and of its application to the offence with which you have been convicted.
Mr Robert Bruce Smith could you please stand.
For the reasons I have given, I now make the following orders.
I sentence you to imprisonment for a non-parole period of 5 years 6 months commencing on 18 May 2018 and expiring on 17 November 2023 and the balance of the term of 2 years commencing on 18 November 2023 and expiring on 17 November 2025.
Thus, you will be eligible for release on parole at the expiry of the non-parole period on 17 November 2023.
[3]
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Decision last updated: 28 July 2021