R v Smith [2022] NSWSC 269 | Case summary

Brief Outline of Facts

In short, the offender used his motorcar to injure and ultimately kill the deceased, Ewan James Sams. At the time, Mr Sams was 36 years of age, and lived alone in Edith Street Cessnock. He had previously been in a relationship with Ms Kirby Armstrong, which, prior to the events leading to the death of Mr Sams, had deteriorated. Notwithstanding the deterioration of the relationship, Ms Armstrong had left her personal belongings at the home of the deceased and had commenced a relationship with the offender, Mr Smith.
On the afternoon of 21 September 2018, there was an exchange of text messages between the deceased and Ms Armstrong. That exchange was curt and, on the part of the deceased, aggressive. The deceased threatened to destroy the personal belongings left at his home and to leave Ms Armstrong with nothing.
Friends had, over the time of the relationship or its deterioration, witnessed fighting between the deceased and Ms Armstrong. One incident occurred on 21 September 2018. The two were arguing over money and the deceased attempted to snatch Ms Armstrong's handbag. A scuffle ensued.
On the evening of Sunday 23 September 2018, a friend of Ms Armstrong, Talia Sly, drove Ms Armstrong to the deceased's home. They arrived at about 7 pm. At that time, the deceased was sleeping. He woke up some short time after they had arrived. The deceased and Ms Armstrong again argued about money. Once more, the deceased attempted to grab Ms Armstrong's handbag and a scuffle ensued. The deceased assaulted Ms Armstrong and Ms Sly attempted to intervene. The deceased hit Ms Sly in the face.
Just after midnight on 24 September 2018, Ms Armstrong sent a text message to the deceased and they had an exchange throughout the day. The effect of which was that the deceased alleged that Ms Armstrong owed him money and that, if it weren't paid by 5 pm, the deceased was going to start "costing" her.
On the evening of 24 September 2018, at around 10 pm, the deceased rang his father, Ronald Sams, enquiring about dinner and later sent a text message asking for phone credit. Because of that conversation and communication, Ronald Sams packed food into a bag and drove to his son's home. He let himself in with house keys.
At the time, the deceased was lying in a recliner rocker with his eyes closed. Mr Ronald Sams put the food in the fridge and asked his son if he was okay. The deceased told him to leave. Ronald Sams left $10 on a side table for his son and left. This was the last time Ronald Sams saw his son alive.
On 25 September 2018, Ronald Sams visited his son at 15 Edith Street. The house was shut, and the blinds were drawn. He knocked on the door, but no one answered. He returned home.
At or about 8:02 pm on that day, the deceased sent a text message to Ms Armstrong to the effect that Wellum and Mia thought that he was asleep and were going through all Ms Armstrong's belongings.
About 1.5 hours later, at 9:29 pm, Ms Armstrong sent a text to Mr Smith to the following effect: "I need u to go to Ewans (sic)." "Apparently Mia n wellam are going through my shit." "I'm with Stefan trying to get on".
At 9:34 pm that day, the offender responded: "bullshit cunt, why couldn't you call me then".
At 9:34 pm, Ms Armstrong sent a text message asking Ms Sly to pick her up. Ms Sly responded and asked from where because Josh had just come to her place. Ms Armstrong responded that she was at "Johnsys".
There was an exchange between 9:37 pm and 9:56 pm, between Ms Armstrong and Mr Smith, in which, leaving aside irrelevant details, Ms. Armstrong complained that Mr Smith was not prepared to collect her belongings, and informed him that she would pick them up herself. Eventually, Mr Smith asked whether he should bring a trailer and, after Ms Armstrong replied in the affirmative, Mr Smith said he would get it immediately.
At 10:18 pm, Mr Smith sent a text message to Ms Armstrong asking her whether she was yet at the deceased's premises.
In the meantime, Ms Sly had picked up Ms Armstrong and driven her to the deceased's home. At that time, Ms Armstrong informed Ms Sly that she had received a message from the deceased, telling her that if she did not collect her belongings, they would be stolen, and two people were going through her belongings at the time.
Ms Sly arrived at the deceased's home, parked in front of the garage roller doors, and she and Ms Armstrong walked in the back gate and knocked at the back door. The deceased was asleep in the lounge room.
After repeated knocking on the door, the two women left and went back to their vehicle. A light was turned on in the home and the deceased walked over to the car and started talking to Ms Armstrong. The conversation was about people stealing Ms Armstrong's belongings. The deceased said: "You can come back and get your stuff when you come back with what you owe me". The deceased then stormed inside his house.
At 10:20 pm, Ms Armstrong had a telephone conversation with Mr Smith, the duration of which was one minute. She told him to meet her at the deceased's premises and, shortly thereafter, Mr Smith attended those premises in his gold-coloured Nissan Patrol. Mr Smith parked adjacent to the curb in front of the deceased's back gate on Edith Street, facing Wollombi Road. There was a trailer attached to Mr Smith's vehicle.
Ms Armstrong walked over to the vehicle and started talking to Mr Smith. She was standing at the front passenger door, which was open and was closest to the deceased's backyard. Ms Sly alighted from her car and joined Ms Armstrong.
The deceased was darting about the backyard at that time. Ms Armstrong was seated in the front passenger seat next to Mr Smith. Ms Armstrong recalls that she said to the deceased: "Stop being a dog cunt, just let me get my stuff out". The deceased told her to "fuck off". At that point, the offender said to them (which I assume, although not specified in the agreed facts, to be Ms Armstrong and Ms Sly, but it may include the deceased) that he had been hit in the neck by something; had looked around; but, couldn't see it.
Ms Armstrong told Ms Sly that they would take the trailer back and meet her at her place. At that point, something else hit Mr Smith's vehicle. Mr Smith went to have a look and, shortly after, drove away with Ms Armstrong. At that stage, there was no fire in the backyard, which is a matter of some relevance later in the chronology.
There was then a text communication exchange between Ms Armstrong and the deceased, in which they exchanged insults, and threats were made that the deceased was going to burn Ms Armstrong's belongings. The deceased then sent Ms Armstrong a photograph of a fire.
At 10:44 pm, the deceased telephoned his father and asked him to hang up if Ms Armstrong rang. The deceased informed his father that Ms Armstrong was only going to whinge.
At or about the same time, as a result of the text message exchange last summarised, Mr Smith drove Ms Armstrong back to the deceased's premises. Mr Smith pulled up the car facing the front gate, which is used to access the backyard and is adjacent to the driveway on Chidgey Street. He collided with the gate. The deceased came out of the house with a baton and threatened to smash Mr Smith's lights. Mr Smith reversed the vehicle a short distance.
Ms Armstrong left the vehicle and approached the deceased. Mr Smith had remained in the car. The deceased was coming to and from the house to a fire that was burning with piles of Ms Armstrong's belongings. He was "raving on" about what he was owed by Ms Armstrong and said to her, when grabbing her arm, "You know that I love you I can't handle having your stuff around anymore".
There was a further discussion between Ms Armstrong and the deceased at the back door of the premises. The deceased grabbed Ms Armstrong, putting her arm behind her back, and holding her close, so she couldn't move. The deceased bent Ms Armstrong backwards over the handrailing.
At this stage, Mr Smith has driven his vehicle through the gates and parked near the clothesline, with the driver's side nearest to the fire. Ms Armstrong broke free and started to go back to the car.
Ms Armstrong approached the fire to see what was burning. The deceased said: "Your birth certificate's in there, everything's gone" and "I'll start with your Dad's stuff next". Ms Armstrong was yelling and screaming at the deceased and called him a "fuckwit". She got back in the car, crying, and said: "Please, just let me have my dad's stuff cause (sic) he's deceased and you still have parents to buy you stuff".
The deceased ran at the car and tried to pick up Ms Armstrong. He attempted to lift her out of the car. Mr Smith started yelling at the deceased to leave Ms Armstrong alone. Mr Smith said: "you're not fucking taking her mate, stop it". Ms Armstrong was holding onto the seat and attacking the deceased.
The deceased then picked up a metal pole and said to the offender: "I'm gonna fucking kill her" and "you can fucking have her". The deceased picked up a paver and bashed the front of the windscreen of the vehicle. He still had the metal pole which he used to bash the windscreen.
Ms Armstrong told the offender to go. At that time, the offender, Mr Smith, put the vehicle in reverse and accelerated backwards towards the gate. The wheels of the car have spun. The car's rear passenger side collided with a pole located just inside the gate. Mr Smith was not able to reverse any further.
The deceased came around the front of the vehicle and was throwing items at it. The deceased came to the driver's side of the vehicle with a paver in his hand. He was still holding a metal pole in his other hand. The deceased threw the paver at the offender. It missed him. The paver landed inside the vehicle.
The offender then put the vehicle in first gear. The offender has driven forward and to the right, towards where the deceased was standing.
This was a distance of some six or seven metres and the car impacted with the garage. The deceased was pinned between the offender's car and the garage, bent slightly forwards, his right hand up with the palm facing the car.
The deceased screamed out: "Stop!" several times, while hitting the bonnet. In the collision, the deceased was impacted by the vehicle and suffered injuries which caused his death.
The offender has reversed his vehicle and was then able to exit through the gate. He then drove away while Ms Armstrong called 000, but the call was not connected as the mobile phone battery was flat. A number of neighbours saw and heard parts of the incident and separately called 000. Police attended.
When police first arrived, the deceased was lying on his back on the ground near the shed. Two other males were standing around him and one of the males was attempting to extinguish a small fire in the backyard.
One of the attending police officers noticed that the deceased had a cut to his chin and a large amount of bruising to the side of his torso. Another police officer observed that the deceased was finding it difficult to breathe and appeared to be in pain and shock but was able to look at the police officer. When the deceased was asked his name, another male, standing nearby, answered for him, but the deceased was able to respond with his age.
When the deceased was asked what happened, he replied: "I don't know; I can't breathe". The deceased was gasping for breath and said, "Help me, I can't breathe". The deceased was moved into the recovery position and asked again what had happened, the deceased again replied that he did not know.
The deceased's breathing became very laboured and suddenly his eyes rolled back. He then stopped breathing. An attempt was made to clear the deceased's airways and first aid was offered. The deceased was returned to a position where he was lying on his back, and CPR was commenced. CPR was continued for approximately five minutes, until the ambulance arrived.
Ambulance officers arrived and administered all appropriate treatment. The deceased was pronounced dead at 11:54 pm.
Ms Armstrong and the offender had left the deceased's premises in the Nissan Patrol. Ms Armstrong dialled 000, as earlier stated, and, despite the fact that the call did not connect because of battery issues, the Court is aware that the telephone call was made at 11:07 pm. Ms Armstrong and the offender entered Cessnock Police Station at 11:10 pm.
The autopsy revealed that the deceased suffered multiple left-sided rib fractures; bilateral pneumothoraxes (collapsed lungs); bilateral haemothoraxes (an accumulation of blood in the lung or its surroundings); right lung lower lobe lacerations; left lung lower lobe contusions; and a tear of the right hemidiaphragm.
Further, the deceased's abdomen had the following injuries: haemoperitoneum (blood in the peritoneal cavity); multiple lacerations of mesentery (the fold of the peritoneum attaching the stomach, intestine, pancreas and spleen to posterior wall of abdomen); laceration of inferior vena carva (large vein carrying deoxygenated blood into the heart); and transection of the pancreas. There were also superficial injuries to the upper limbs and the lower limbs. The upper limbs had comminuted fractures of the left scapula; left acromio-clavicular joint dislocation; and multiple superficial injuries.
Relevantly, the deceased's toxicology results were that his blood contained: methylamphetamine 0.26 mg/L; amphetamine 0.14 mg/L; 3,4 methylenedioxymethamphetamine (MDMA) less than 0.01 mg/L; and delta-9-THC acid 0.009 mg/L.
The most serious injuries were plainly the large volume of blood in the abdominal cavity (referred to as the haemoperitoneum) and the multiple tears of the small bowel mesentery, the inferior vena cava and a complete transection of the pancreas. Each of those injuries is consistent with a large compressive force to the abdomen.
There were large abrasions and bruises from the left shoulder to the central abdomen with significant deformity and underlying fractures. The cause of death was multiple injuries to the chest, abdomen and upper limbs.
Blood and urine samples were also taken from Mr Smith at 2:50 am on 26 September 2018 (approximately three hours after the incident in Edith Street). Mr Smith's blood sample showed the offender to have 0.10 mg/L of amphetamine and 0.56 mg/L of methylamphetamine in his blood.
A pharmacologist has given expert opinions as to the blood concentration range detected in the offender. The Agreed Facts do not deal with the toxicology of the drug content of the deceased's blood. The offender's level of drugs is within the toxic to potentially fatal range and indicated that the offender was, at the time, a heavy user of methylamphetamine. It is likely, given the nature of the blood sample, that the test results are conservative and if a plasma concentration had been measured, the level of concentration would likely have been 30% to 40% higher.
The pharmacologist expressed an opinion as to the effects of methylamphetamine and described its use as frequently resulting in driving behaviours such as driving at excessive speed, overtaking and aggressive and risk-taking behaviour.
Nevertheless, the pharmacologist expressed the opinion that the offender allegedly showed no signs of acute intoxication and, as a consequence, she would expect the offender to have been in the "rebound fatigue stage" of methylamphetamine withdrawal and there would have been some impairment of his driving ability at the time of the incident.
Both Ms Armstrong and Mr Smith gave interviews to the Police. Each consented to forensic procedures. The version of each interview is consistent with the Agreed Facts. The interview of the offender occurred at 5:27 am on 26 September 2018.
Forensic evidence on examination of the motor vehicle was consistent with the facts and revealed damage to the windscreen, driver's side panels, CB aerial, driver's side mirror, headlights, and taillights.
The examination revealed that the front laminated windscreen had been shattered in the midsection of the windscreen; a flap of shattered glass was observed forming an opening through the windscreen; and there was a broken half paver resting on top of the centre console between the driver's and front passenger's seats.
A crime scene examination of the premises revealed an aluminium brand baseball bat, referred to in the Agreed Facts as a baton held by the deceased, which was on the grass verge. It also revealed a mop lying in the gutter. There was damage noted to the gate and the palings. The gate had been latched closed when the vehicle entered the backyard.
Further, the offender participated in a walk-through at 15 Edith Street at 12:21 pm on Wednesday, 26 September 2018. At the conclusion of the walk-through, the offender was released without charge.
On 17 June 2020, some 21 months after the passing of the deceased, the offender was charged with the murder of the deceased. The offender was taken into custody, administered his rights and declined to give a further interview.
The basis of the offence is that the offender, Mr Smith, drove a large vehicle in a small yard, at the deceased, knowing that by so driving his vehicle, it would impact with the deceased. The offender accepts that driving with this awareness was an unlawful and dangerous act.
The offender's vehicle then collided with the garage, pinning the deceased between the bonnet and the garage, thereby causing his death. There was no intention possessed by the offender at the time these acts occurred, to cause really serious harm to the deceased or to kill him. Nor did he know that the probable consequence of his conduct was the death of the deceased.

The purpose of sentencing

As is sought to be expressed above, the criminal taking of a human life is serious. The criminal law operates on the basis that humankind has free will - we have the capacity to choose to obey the law; and we are punished appropriately when we do not.
To those unfamiliar with the process of sentencing, some aspects of the task may seem difficult to understand. That difficulty is exacerbated when one is dealing with the crime of manslaughter, which depends on circumstances that will differ from one case to the next.
The Court is required, in fixing an appropriate sentence, to assess the objective seriousness of the offence. In so doing, the Court examines the range of conduct that may generally be involved in the offence of manslaughter. Even, as here, where one is dealing with the death of a victim, it is necessary to assess the conduct of the offender to determine where, in the range of seriousness of conduct that may give rise to manslaughter, this offence fits, and the level of moral culpability in the range that exists for such conduct.
Such an assessment, being a comparison of different manslaughter offences and different circumstances leading to manslaughter, does not detract from the seriousness of the offence in an objective sense or from the tragedy that necessarily accompanies the loss of life.
It is only in circumstances where the conduct involved, compared with other conduct that could give rise to manslaughter in other circumstances, is so grave as to warrant the maximum penalty that the offence fits within that which is sometimes referred to as "the worst category of offence" warranting the maximum sentence imposed by the legislature. [2] The maximum sentence for manslaughter is 25 years' imprisonment.
As the High Court has noted, and which is the subject of much other authority, the "worst category" is not confined to that for which it is impossible to conceive of an even worse instance of an offence. [3] The Court is required to assess objectively the features of the offence and the circumstances of its commission to determine whether it is in the category of worst-case or lower down the scale of seriousness, within the notional range between the lowest level of seriousness and the worst category of cases, all of them involving the felonious or unlawful taking of a human life.
In so doing, the Court seeks to achieve a purpose that has been described as sometimes conflicting in its objectives. In serious crimes, including manslaughter, the importance of punishment and public deterrence usually loom large. Other purposes include the protection of society, personal and public deterrence, retribution and reform.
Each of these objectives, but particularly the protection of society, personal and public deterrence, punishment and, to a lesser extent, the need for rehabilitation, must be assessed, having regard to the gravity of the circumstances, viewed objectively, within the range of offending comprehended by the offence in question.
Further, considerations of reform and rehabilitation of the offender, while significantly affected by the objective circumstances of the offence, are more directly affected by the subjective circumstances of the offender and the capacity for the offender to be rehabilitated.
The capacity for, and the likelihood, if any, of rehabilitation, in turn, impacts upon the degree to which a sentence is fixed, which ensures the protection of society and the personal deterrence of the offender. The process is one that has often been described as involving "intuitive synthesis". It takes each of the objective circumstances of the offence and each of the subjective circumstances of the offender and synthesises them to achieve the purposes of sentencing.
As already stated, the purposes of sentencing are, as recited above: the protection of society; deterrence of the offender and of others who might be tempted to offend; retribution; and, reform. Those purposes overlap and none of them can be considered in isolation. Each is a guidepost for the purpose of arriving at an appropriate sentence and sometimes, as stated, those guideposts point in different directions. [4]
The legislature, reflecting the common law, has described the purposes of sentencing as: ensuring adequate punishment for the offence; prevention of crime by deterrence of the offender and others; the protection of the community; the promotion of rehabilitation; rendering the offender accountable for the conduct; denouncing the conduct; and, recognition of the harm done to the victim of the crime in the community. [5] In circumstances such as the present, the task required of a sentencing judge in synthesising each of the objective and subjective circumstances is a difficult one. On the one hand, manslaughter is a very serious offence and comments regarding objective seriousness are made within the context of the nature of the offence in the taking of a human life.
The objective circumstances of this offence, notwithstanding its effect, must be gleaned from the facts. Those facts are, as earlier stated, uncontroversial.
It is necessary to examine the subjective circumstances of the offender as they affect moral culpability and, to some extent, objective seriousness.
The subjective circumstances of the offender, Mr Smith, were the subject of extensive submissions and the Court has the benefit of a psychologist's report, being the Report of Dr Derek G Gilligan of 6 October 2021.
It is necessary to set out some of the history recounted by Dr Gilligan, Forensic Psychologist, because it underpins the submission on behalf of the offender in relation to the early childhood deprivation under which the offender suffered. Before doing so, it is necessary to note that Mr Smith gave oral evidence in the sentencing proceedings, during which he testified to the accuracy and truthfulness of the history given to the Psychologist.
Mr Smith is 36 years of age and was 32 at the time that this offence occurred. He is the eldest of three children and was born in Kurri Kurri. He has a positive relationship with his siblings, a younger brother and a younger half-sister.
Mr Smith's parents separated when he was six and his early childhood was marked by a tempestuous relationship at home. His home life consisted of significant domestic violence and substance abuse. His father, "routinely returning to gaol for driving charges and assaults", used illicit substances, as did his mother. Substance abuse was predominantly cannabis and amphetamines.
The offender recalled significant domestic violence between his parents before their separation. His father was often violent towards his mother and Mr Smith often witnessed episodes of domestic violence from his father towards his mother. He had little to do with his father following the separation and his father continued to use substances and continued to return to gaol.
Shortly after the separation, his mother became involved with another man to whom she fell pregnant with his half-sister. The offender's mother's partner was also violent and would frequently bash his mother.
On one occasion, when returning home from cricket training at approximately 12 or 13 years of age, the offender came home to find his mother's partner bashing his mother. He tried to intervene, and the partner assaulted him. The assault was reported to police and the partner was sent to gaol for 12 months.
After release from prison the partner was taken back by the offender's mother and the partner continued to be violent. Again, the offender would seek to intervene, and the violence would be directed towards him.
When the offender was 14 or 15 years of age, he ran away to live with friends of the family to escape the violence. Soon after the offender left home, the mother's partner burnt down the house in which the partner and the offender's mother were living. At that point, the mother left the relationship. It appears that there was a significant physical injury that ultimately resulted in a permanent separation between the two.
As a result of back surgery to relieve sepsis caused by an abscess, his mother became paraplegic, and the offender had been required to provide significant support to her and to raise his siblings.
In later years, the offender has renewed contact with his father, but the relationship remains strained and they continue to clash. His father still has substance dependence issues.
The offender was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) during his primary school years. For this he was prescribed dexamphetamine type medication, which he continued for approximately five years.
He ceased taking medication because it caused him difficulty with his peers and, as a consequence of the cessation of the medication, he suffered attention and concentration difficulties in his later school years, and it affected his schoolwork significantly. The offender left school in Year 9.
The offender commenced casual work at a tyre-fitting business where he worked until he was about 21 years of age. There was some temporary change in his employment industry, but he returned to tyre-fitting and worked his way up to a management position, in which he worked until 2018.
The offender has had only one serious relationship. He met the young women on her 16th birthday, when he was 17. They have two children together who are currently 11 and 15 and the relationship lasted 15 years.
The offender was devastated when his partner wanted to leave the relationship. It seems he became very depressed and, ultimately, at the same time as he had been unfairly dismissed, went on Centrelink payments, on which he remained.
Mr Smith had used cannabis and abused alcohol as a youth and continued to do so up until the time of the birth of his children, after which he would use cannabis on very rare occasions. He continued to have drinks each night but stopped using alcohol altogether in his early 30s.
After his relationship broke down in March or April 2018, the offender commenced using methamphetamines and, as earlier stated, was depressed, and suffered grief and sadness. The methamphetamines, he said, assisted him to avoid negative thoughts.
Since being incarcerated, Mr Smith has completed a number of courses including a course on addiction; a lifestyle course; a well-being course; and multiple other programs of the same kind. Nevertheless, the offender was unable to articulate any significant insights in assisting him from relapsing into substance abuse. The Psychologist summarised the circumstances in the following passage: "[Mr Smith] was exposed to significant childhood trauma, neglect and negative role modelling. His parents used substances, his father was involved in criminality and was frequently returning to gaol. He was witness to violence toward his mother from both his father and her partner. Through efforts to intervene he was subjected himself to physical violence by his mother's partner. It appears his mother did not intervene in the physical violence toward [him] from her partner and in staying in the relationship was tacitly complicit in allowing it to occur. Overall [Mr Smith] was exposed to multiple significant child protection issues that resulted in complex childhood trauma giving rise to symptoms of poor self-esteem, self-worth, anxiety and dependent and avoidant traits. … Mounting evidence suggests that childhood adversity and trauma increases the risk for mental health problems, including conditions such as Attention Deficit Disorder and Attention Deficit Hyperactivity Disorder. … Of concern is the presence of [Mr Smith's] ongoing symptoms of low mood, PTSD, and ADHD, particularly his impulsivity, poor insight, and skills for coping. Whilst the structure and routine of the gaol environment (particularly in providing some routine employment) is serving to contain his symptoms, the context of gaol will ultimately exacerbate his symptoms overall and he is nevertheless not likely to have his treatment needs addressed in gaol. Given his traumagenic developmental history, his substance dependence disorder, the complexity of his presenting needs and diffuse psychological condition, [Mr Smith] needs a medium intensity longer term mix of tailored medical and individualised psychological treatment. … In terms of inculcating a lasting substantial change, given his readiness and motivation, it may be an opportune time to support [Mr Smith's] medical and psychological treatment needs through a shorter gaol sentence with a view to transitioning into a dual diagnosis live in rehabilitation such as Dooralong Transformation Centre, or the like. [Mr Smith] could engage in psychological treatment to develop his insight, skills for coping, and self-regulation, whilst receiving the necessary medical treatment he needs in a live-in residential type rehabilitation. Upon exiting a residential rehabilitation [Mr Smith] would benefit from a longer term 18 month to two years community-based rehabilitation to support not only the application of newly acquired skills in situ, but also his adjustment into independent community-based living more generally. [Mr Smith's] community based psychological treatment should involve a mix of fortnightly to three weekly sessions with a psychologist. His treatment is essential to consolidating his insight and relapse prevention strategies as well as treating his underlying condition and PTSD symptoms. … A shorter gaol sentence would facilitate a longer-term supervision process under probation and parole to ensure [Mr Smith] maintains his treatment gains and remains engaged. Without engaging in the necessary psychological, medical, and substance use treatment he requires to addresses his specific needs however, [Mr Smith] will remain vulnerable to defaulting to previous strategies for coping, elevating his potential for relapse."
There can be little doubt that the offender suffered early childhood deprivation and full weight should be given to that deprivation in ameliorating the moral culpability associated with the criminal offence. [6]
Ordinarily, the fact that the offender has consumed drugs and may have been affected by drugs at the time of the offending is not a factor that ameliorates the offending. However, in this case, the abuse of amphetamines by Mr Smith is, at least in part, a consequence of the normalisation of drug abuse as a child and the self-medication of his ADHD and depression.
In those circumstances, some amelioration should be provided, but the Court needs to be careful not to double-count the effect of the psychological issues and the self-medication for those psychological issues in its understanding of the manner in which this offence occurred.
As earlier stated, manslaughter is a particularly difficult offence to measure by comparative standards. Each offence of manslaughter is different from others. Comparisons that have been provided with other offences of manslaughter, particularly those involving motor vehicles, must be used with great care. Usually, a manslaughter involving a motor vehicle is a result of criminal negligence; not a deliberate act that exposes the victim to unlawful and dangerous activity.
There is no hierarchy associated with the different kinds of manslaughter. Each offence is different. There will be times when gross criminal negligence is significantly worse than a deliberate act. On other occasions the reverse will be the situation.
The Court heard moving and emotional Victim Impact Statements. Each of them expressed the feelings that one would expect when a parent or sibling loses their loved one. Even more so is the tragic nature of the death of the deceased, brought home by the sudden and violent nature of the offending.
I take the view that Mr Smith, on this occasion, suffered significant non-exculpatory provocation, as earlier recited, in the assault on Ms Armstrong and the assault or attempted assault on the offender by the deceased. The brick thrown at the offender and his car, on one occasion, narrowly missed the offender. The circumstances of those events have been earlier recounted. These factors ameliorate the moral culpability associated with the offence.
I take the view that the offender sought to use the car to stop Mr Sams from continuing the assault on Ms Armstrong and the assault on him and his vehicle. There can be little doubt, as is clear from the plea of guilty, that the manner in which he used the car was a deliberate act that was both unlawful and dangerous and, by pinning the deceased between the bonnet of the vehicle and the garage, the offender caused the death of Mr Sams. Nevertheless, the offender did not have an intention to cause really serious harm to the deceased nor did he know that the probable consequence of his conduct was the death of the deceased. Further, the offender came to the deceased's premises without any intention to commit a crime - he was there for the purpose of assisting Ms Armstrong to collect her belongings.
The foregoing, as earlier stated, reduces the moral culpability of the offender, which is lower than it might otherwise have been. In light of the foregoing factors relating to the offence itself, and bearing in mind that the offender, more probably than not, suffers PTSD and ADHD, I consider that Mr Smith: is not an appropriate example for general deterrence; has a lower moral culpability; and, has reacted, very poorly, to some provocation without realising the consequences that his conduct would cause.
While I do not consider that the offence is at the lowest level of offending, as was submitted on behalf of Mr Smith, I do consider that the objective seriousness of the offence is well-below mid-range.
As earlier stated, I give full effect to the early childhood deprivation. I do not consider, particularly in light of the short criminal history of the offender, that the offender, by his mental condition or early childhood deprivation, poses a greater risk to community safety than would otherwise be the case.
The plea of guilty was given on the day of the trial in circumstances where the facts that give rise to the manslaughter charge depend on substantially the same facts as that which gave rise to the murder charge, albeit with significantly different elements. The offender had the opportunity to plead guilty to the manslaughter under s 153 of the Criminal Procedure Act. As a consequence of the operation of s 25D(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), including the definition of "new count" in s 25D(4)(a) of that statute, the offender's plea of guilty entitles him to a reduction in the sentence, confined to the maximum of 5%.
I have heard the offender in the witness box. His evidence and the remorse expressed by him was plainly sincere. He was quite emotional, and I have little doubt that these events will have a lifelong effect on the offender. Obviously, that effect will not be as great as it will be for the family of the deceased, which was acknowledged and expressed by the offender himself.
I also accept that the conduct of the offender in providing an interview at the earliest opportunity and facilitating a walk through to describe the events of the day in terms that were ultimately accepted, and are consistent with the evidence before the Court, including the Agreed Facts, facilitated the administration of justice and entitles the offender of some small reduction in his penalty, pursuant to s 22A of the Crimes (Sentencing Procedure) Act.
Nevertheless, the Court is required to impose on the offender a sentence that is commensurate with the seriousness of the offence that has been committed and is not inappropriately lenient.
Two other aspects of the sentence require comment. First, the offender was sentenced on 2 September 2020 for offences of breaching an AVO, goods in custody, possess house-breaking implements and take and drive a motor vehicle. For that, the offender was sentenced to an aggregate sentence of 18 months' imprisonment. This included a 12-month non-parole period.
It is submitted that, given the paucity of his criminal antecedents at that point in time, absent the fact that he was then bail refused on account of the murder charge, he was sentenced to a full-time custodial sentence and, therefore, that custody should be allowed in counting the sentence the Court will now impose. It is submitted that I should, therefore, consider that period for the purpose of calculating the commencement of the sentence to be imposed today.
Further, on 3 November 2021, Mr Smith was sentenced to a term of 2 years' imprisonment with a non-parole period of 15 months for the supply of prohibited drugs. That sentence dated from 17 December 2020 and the non-parole period expires today, 16 March 2022.
While it is tempting to suggest that all of his full-time custodial sentences have been occasioned by the refusal of bail on account of the charge of murder, the Court, as presently constituted, must take the sentences as it finds them. The issue of accumulation must be determined on the basis of what, if any, accumulation would have occurred, if all of the sentences would have been imposed at the one time. That is the process which the Court will undertake.
The second aspect that the Court is required to deal with is the issue of special circumstances. This relates to the ratio of the non-parole period to the remainder of the term of imprisonment.
It goes without saying, in the circumstances of this case, that the bar imposed by s 5 of the Crimes (Sentencing Procedure) Act has been satisfied and the appropriate sentence is one of full-time imprisonment. Nevertheless, the Court has recited, at some length, passages from the Psychological Report of Dr Gilligan which underpins the need for an extensive period of supervision to facilitate the offender's recovery from PTSD; his treatment for ADHD; and the stabilisation of his life in the community.
That period of supervision should occur over and above a full-time rehabilitation programme. The rehabilitation process, which, if successful, aids the entire community, and is best served by an extended supervision period of significant length. The Court, as a consequence, finds special circumstances to allow an extended period of supervision on parole.
I have already referred to the maximum sentence of 25 years' imprisonment, which is one of the guideposts for the fixing of any sentence, as are the purposes of sentencing contained in s 3A of the Crimes (Sentencing Procedure) Act, and the common law which the statutory provision reflects. There is no standard non-parole period.
I take account of the circumstance that the offence in question was committed in the home of the victim and that it was committed at a time when the offender was on conditional liberty. Each of those are aggravating features.
I do not take account of the use of a weapon (being the motor vehicle) nor the use or actual or threatened violence, each of which are part of the assessment of objective seriousness otherwise undertaken. As such, they are not aggravating factors, but factors considered in determining the objective seriousness of the offence.
As to mitigating factors, I have already referred to the plea of guilty and the offender's mental health. That mental health, in my view, contributed to the commission of the offence, but I do not consider it contributed in a material way, notwithstanding the indirect effect of the mental health on the use of illicit substances by the offender. I do, as earlier stated, hold the view that the offender is an inappropriate vehicle for general deterrence, but general deterrence is still a factor that needs to be considered in setting an appropriate sentence.
The custodial sentence will weigh more heavily on the offender because of his mental illness. He will also suffer more onerous conditions because of the COVID-19 restrictions, although I hope that may not be a permanent feature, and I acknowledge the restrictions suffered by the whole community not only those in gaol. If the programme suggested by the psychologist is followed, I would assess the offender's rehabilitation prospects as good. Because it is a little uncertain, I can now only assess them as satisfactory.
I do not consider that specific deterrence is a significant element, but it is a factor to be considered. I have not previously noted, but now do, that the offender considered the deceased a friend, albeit that their relationship would have been strained because of the relationship triangle with Ms Armstrong. I also note that the PTSD aspects were exacerbated by the effect of the conduct of the offender and its effect on the deceased. I also comment that, from that which has emerged in these proceedings, it seems the deceased was not usually a violent or aggressive person. I have little doubt that the deceased's use of amphetamines, and the amount in his system at the time of these events, was a factor in his behaviour which affected his reaction to the grief and/or sense of loss in his relationship.
For all of the foregoing reasons and seeking to synthesise both the objective circumstances and the subjective factors to arrive at an appropriate sentence, given the seriousness of the offence and the need to achieve the purposes of sentencing, I would start with a head sentence of 9 years' imprisonment. Having regard to the 5% reduction for the late plea of guilty, this would result, after rounding, in the imposition of a head sentence of 8 years and 6 months. As earlier stated, I determine that there are special circumstances warranting an extended period of parole eligibility and fix the non-parole period as 50% of the time served.
The offender has been in prison since 17 June 2020. He was first sentenced for the first set of offences on 2 September 2020 to a sentence of 18 months with a 12-month non-parole period commencing 2 September 2020. The sentence on 3 November 2021 was backdated to account for the period of custody from 17 June 2020 to 2 September 2020. The sentence imposed on 3 November 2021 was for a term of imprisonment of 2 years with a non-parole period of 15 months.
Given the nature of the other offending, some accumulation is appropriate. Bearing in mind that a sentence should be fixed to commence in a manner that would have been the situation if all of the offences were imposed at the one time, the most appropriate additional term for both of the other offences is a period of imprisonment of 14 months accumulation on the offence for which I am now sentencing Mr Smith.
The effect of accumulation needs to be factored into the sentence to be imposed. Each of the other sentences also reflected special circumstances. The ratio of the non-parole period to head sentence for the other offences were 62.5% and 66.6% respectively. In neither of those earlier proceedings did the Court have all the material available here.
I shall impose a sentence of imprisonment on Mr Smith for the manslaughter of Mr Sams, being a head sentence of 8 years and 6 months, commencing 17 August 2021 and concluding 16 February 2030, with a non-parole period equating with 50% of the total sentence that will have been served since 17 June 2020, being a total non-parole period of 4 years and 10 months. This results in a non-parole period for this offence of 3 years and 8 months, concluding 16 April 2025, a period that is lower because of the effect of accumulation.
Given the psychologist's report and the need for supervision of a minimum of 2 years after a rehabilitation programme, this calculation gives the possibility, subject to satisfaction of the Parole Authority as to the safety of the community, of an appropriately significant potential period on parole of 4 years and 10 months. I do not apprehend that there will be difficulties with the satisfaction of the need to ensure the safety of the community.

R v Smith

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