R v Smith

Supreme Court of NSW|2024-03-22|Before: McNaughton J

Background

From about 2016 until 6 January 2022 (the day of the murder), the offender and Ms White were in an "on and off" relationship.
Daniel and Ms White were in a relationship for a few months from August to December 2019. After Daniel and Ms White separated, Daniel moved to Queensland.
A few months later, Ms White found out that she was pregnant. Ms White told the offender that he was the father of the child. Ms White gave birth to DW in July 2020. The offender was present at the birth.
In March 2021, Daniel bought a house in the Newcastle area and moved in around May 2021.
In May 2021, Ms White informed Daniel that he may be the father of DW. Daniel told his immediate family but also indicated that there were inconsistent accounts being given by Ms White as to the paternity of the child as between him and the offender. Daniel's family recommended a paternity test.

Custody of DW

Daniel continued in a relationship with Ms White and in September 2021 Ms White became pregnant. Daniel was the father of that unborn child.
On 15 October 2021, Daniel attended a police station and reported that Ms White had physically assaulted him, had been verbally abusive to him and had verbally threatened the unborn child. Two days later, the authorities attended Ms White's home and removed DW from Ms White's care. DW was placed in the care of Daniel. Daniel's father came to Newcastle to assist his son with the care of DW, later joined by his mother. On 6 November 2021, proceedings for a Recovery Order through the Family Court commenced, which was listed for hearing on 23 December 2021. The offender returned to the Newcastle area prior to the Family Court proceedings.
On 23 December 2021, the Family Court ordered that DW be returned to Ms White's care under the condition that they resided with Ms White's father in the Newcastle area. Later, on 23 December 2021, Daniel's parents drove DW to Queensland, and Daniel made plans to fly the next day.
On 24 December 2021, after contact with the police and Ms White's father, Daniel's father arranged to fly DW back to Newcastle on Christmas Day. DW was handed to Ms White and her father at the Newcastle Airport on Christmas Day.

Return to Newcastle

Daniel returned to Newcastle on 28 December 2021. On 29 December 2021, Daniel stayed at Ms White's father's house and spent time with DW.
On 31 December 2021, Daniel and Ms White had a fight. Daniel then sent messages to Ms White indicating he would possibly self-harm. During the early hours of 1 January 2022, the police were contacted in relation to concerns that Daniel may self-harm. Daniel was eventually located and taken to hospital for psychiatric evaluation where he spent some hours before returning home.
On 2 or 3 January 2022, Daniel was again able to see DW.

Prior threats

Between May 2021 (when Daniel was first told by Ms White that he could be the father of DW) and 6 January 2022: 1. the offender had made several threats towards Daniel, which included threats to kill Daniel; and 2. Daniel had made several threats towards the offender, which included telling Ms White that "it was on" if the offender was at her residence and, on occasions, attending the Jesmond house in the company of other males.
The threats had been made towards each other in the context of animosity from uncertainty surrounding the fatherhood of DW and the overlap of their relationship with Ms White.

Events of 6 January 2022

Up to and including 6 January 2022, the offender had been staying at the Jesmond house and caring for Ms White's dog whilst she stayed with her father in accordance with the Family Court order.
Between 10:31am and 2:24pm, Daniel attempted to phone Ms White 17 times using his own phone. On one of those occasions, Daniel left a voicemail message: "[Andrea], why the fuck am I blocked for? Can you unblock me please? I've tried off private, I've tried off my normal number. Why am I blocked? Can you call me back?"
Between 12:24pm and 2:11pm, Daniel tried to phone Ms White's father seven times using his own phone.
At 1:35pm, Daniel attempted to phone Ms White from a payphone.
Between 12:38pm and 2:50pm, Ms White and her father had the following conversation by SMS: Time Message from Ms White to her father Message from Ms White's father to Ms White 12:38pm [Andrea] I have had 3 calls from an unknown number this morning. The have no idea who 2:30pm It was Dan, I answered, and he wanted to speak to u. Said he want d to know how [DW] is 2:30pm Careful he may turn up there 2:50pm OK

Between 2:42pm and 2:44pm, Daniel attempted to phone Ms White on three occasions using a phone belonging to his friend, Wade Hughson. Wade Hughson is also known as Wade McKinnon. He will be referred to as Mr Hughson in these sentencing remarks.
At 2:53pm, Daniel sent the following SMS to Ms White using Mr Hughson's phone, "why the fuck am I blocked still".
At 3:34pm, Daniel arrived at the Jesmond house.
At some point between 3:34pm and 3:39pm, the offender and Daniel were in the kitchen of the premises. Daniel suffered a fatal stab wound to the chest. The offender accepted that he caused the death of Daniel by stabbing him with a knife in the kitchen of the Jesmond house.
At 3:39pm on 6 January 2022, the offender left the location after being advised to leave by Mr Hughson.

Attendance of emergency services

After triple-0 was called, New South Wales Police and paramedics arrived and took over the treatment of Daniel from bystanders who were assisting him. Daniel was declared dead at the scene at 4:20pm.

Pathologist's report

An autopsy was conducted on 10 January 2022, and it was determined that Daniel died as a direct result of a stab wound to the chest.
The stab wound was to the front of the upper right side of the chest. It penetrated the chest cavity and transected the large vein which runs under the collarbone. The tract of the wound was from front to back, right to left, and higher to lower. There was a smaller superficial wound on the inside of the upper right arm, roughly parallel to the stab wound on the chest, with the same trajectory. The stab wounds were most likely caused by a solid sharp bladed object.
A number of minor superficial blunt force trauma injuries of unknown age were also observed on the upper and lower limbs and abdomen.

Arrest of the offender

On 12 January 2022, the offender handed himself in to Newcastle Police Station. He was arrested and introduced to the Custody Manager. At the time of his arrest, he had no injuries.

Events leading up to the stabbing

I have found the facts in relation to the events leading up to the stabbing on the basis of the evidence called at trial from Ms White's father, Ms White and Mr Hughson, together with the agreed facts.
Ms White's father dropped Ms White and DW at the Jesmond house at around midday. From that time, Daniel contacted Ms White's father several times. Between midday and the text message at 2:30pm, Daniel was agitated, and aggressive in conversation with Ms White's father. His emotions were heightened because he wanted to see his child, DW, whenever he wanted to, and not just in accordance with the Family Court orders. As indicated in paragraph [31] above, Mr White's father messaged Ms White to be careful because he thought Daniel might turn up at the Jesmond house and cause a scene.
Mr Hughson shared a house with his girlfriend and Daniel in the Newcastle area. Mr Hughson had known Ms White since they were young. In the afternoon of 6 January 2022, Daniel asked to use Mr Hughson's phone as Ms White had blocked him, and he made some calls, although did not speak to her. Mr Hughson then went to the shops on his pushbike and was away for about half an hour before Daniel started to ring him saying he wanted to come and pick up Mr Hughson because he wanted to go around and see Ms White.
It is apparent from dashcam footage and the timing of the calls that Daniel had made one of the calls to Mr Hughson from the region of the Jesmond house on an earlier visit, prior to the visit when the stabbing occurred. The footage showed that Daniel had driven to the Jesmond house at 3:19pm, had gone into the property and returned to the car to leave around two minutes later, before going to pick up Mr Hughson. It is not apparent whether anyone inside the Jesmond property noticed Daniel's first brief visit.
Daniel picked up Mr Hughson and Mr Hughson's bike and they drove to the Jesmond house. On the way to the house, Daniel asked to use Mr Hughson's cigarette lighter. Mr Hughson understood it was for protection of Daniel's hand if he hit someone, so his hand did not expand. Mr Hughson agreed in cross-examination that Daniel had said he might need it, just in case the offender (known as Squid) was going to be there.
After they had pulled up in front of the Jesmond house, Daniel got out of the car while Mr Hughson remained with the car rolling a cigarette. Mr Hughson then heard Daniel shouting that there was someone at the house and heard some commotion. Daniel called for Mr Hughson to come to the house. As Mr Hughson approached the door, he saw Ms White with DW, and the two men were trying to attack each other.

Events immediately before the stabbing

I have found the facts about the next phase of the incident on the basis of evidence called at trial from Ms White and Mr Hughson. As a general observation, I note that Ms White and Mr Hughson's evidence was largely consistent in relation to the critical events leading up to the stabbing. I assessed them as both trying their best to tell the truth. I further note that their evidence about what occurred after the stabbing as to who assisted Daniel from the house differed. Ms White said that she had assisted Daniel out of the house, whereas Mr Hughson said he had assisted Daniel once he got to the front door. In my assessment, those differences are explicable by the undoubted trauma and chaos of the situation. In light of the jury verdict, and in any event, those differences do not have any particular significance for sentencing purposes.
While Mr Hughson stayed with the car, rolling a cigarette, Daniel came to the door of the Jesmond house. Daniel was forceful and said words to the effect of "[Andrea] let me see my fucking son" and "who's here?" and also "open the door" or "let me in". I accept that Daniel pushed past Ms White and entered the house and went to the sunroom at the front of the house where the offender was. They had a short conversation which Ms White could not hear and then Daniel went back outside to the front steps. Daniel said to the offender to come out and fight. I accept, as Ms White stated, that Daniel had come there that day "looking for a fight".
When Daniel left the house, he stood on the top step. The offender, who was inside the house, obtained his knife and took it out of its sheath. Although not heard by Ms White, I accept that Daniel called out to Mr Hughson (known as Whippet) words to the effect of "Whippett, Whippet, he's got a knife".
When Mr Hughson came up to the door, he said words to the effect of "put the blade away, Kevin". I find that the offender, at this point, was holding a black hunting knife with a serrated edge, between about 12-19 cm long, with a point hook at the end of it in his right hand.
Ms White said the offender was just holding the knife, trying to intimidate, protect himself and to scare Daniel away. She was standing either holding DW or was next to DW, between the men. Mr Hughson said in cross-examination that when he got up to the house, he saw the offender trying to stab Daniel with a knife, from about one to two metres away, and that Ms White was close to Daniel with a hand on his chest telling him to go. When describing the offender's action further, Mr Hughson demonstrated an overhand movement. This action accords with the trajectory of the fatal stab wound.
Given Mr Hughson was facing the offender during this period of the incident, as opposed to Ms White whose main attention was focussed on Daniel and only saw the offender with the knife once she turned around after her attention was drawn to the knife by Mr Hughson, I accept Mr Hughson's account of the offender's actions at this point. That is, I accept that, at this point, the offender was brandishing a knife in an aggressive fashion while Ms White was either holding or standing very close to the child of whom Daniel was the father.
Mr Hughson said, at this point, the offender lowered the knife. Ms White said the offender put it away in its sheath or case. I accept that, at this point, the offender had stopped brandishing the knife, and put it in its sheath or case.
Ms White had seen the knife in the house many times, and it was the offender's knife.
Ms White said, as soon as the offender had put the knife back into its case, Daniel pushed past her, and lunged at the offender. Ms White grabbed DW and ran down the steps to take the child out of the house. Mr Hughson said Ms White was between the offender and Daniel and she ended up passing the child to Mr Hughson who took the child out the front looking for a neighbour or bystander. As Mr Hughson was going away, Daniel entered the house. He saw Ms White go back into the house to try to stop them. He went with the child to the footpath. Again, the two accounts are essentially consistent, and I accept that Daniel aggressively entered the house at about the same time Ms White handed over DW to Mr Hughson to remove the child from the house.
I accept the evidence of Ms White that the two men went towards the living room and kitchen area. As they were moving away from the front door, the offender was walking backwards, backing away, and Daniel was trying to grab him. In cross-examination, Ms White agreed that they were getting into a wrestle, as she grabbed DW and left the house.
I further accept the evidence of Ms White that, when she returned to the house after giving DW to Mr Hughson, Daniel and the offender were in the kitchen "still trying to get at each other". Daniel had his back against the right-side wall and the offender was in front of the dishwasher, which is next to the kitchen sink near the back left-hand corner. The evidence showed that the offender was standing near a door which led outside.
I accept Ms White's evidence that Daniel was trying to grab the knife from the offender and the offender was waving the knife around, which, by this time, was out of the sheath again. I accept that Ms White's large dog was also there attacking both men, that both men were wrestling, that Daniel was trying to grab the knife, and that the offender was pulling away.
I accept that Ms White grabbed the dog as she thought it was going to get hurt with the offender waving the knife. Because the dog's collar came off, I accept she had to pull the dog by his back legs down the hallway, shut him in her bedroom and lock the door.
I accept that as Ms White closed the door, Daniel said her name, and she turned around and saw him in the living room and she saw blood gushing out of his shoulder.
From this point, there was clearly panic and chaos. As noted, there is a difference between the evidence of Ms White and Mr Hughson as to who helped Daniel out of the house after the stabbing, as well as precisely what happened once Daniel was out the front of the house.
What does emerge sufficiently clearly from the combination of the evidence from the agreed facts, Ms White, Mr Hughson and the two passers-by who assisted and were called at trial, is that Daniel came out of the house, initially walking. He rapidly became seriously unwell and ended up sitting and then lying on the ground while various people tried to stem the blood flow with towels and tried to make him comfortable with pillows and a blanket while waiting for emergency services to arrive. Daniel was declared dead at the scene at 4:20pm.
Mr Hughson gave evidence that he had seen the offender leave from the front of the house, about halfway through the time they were out the front looking after Daniel. Mr Hughson gave an account at trial that the offender said to him words to the effect "do you want it, as well" and that Mr Hughson replied that there were enough people laying on the ground and he did not want anyone else laying on the ground. In cross-examination, it was put to Mr Hughson that the words said by the offender to Mr Hughson when he was leaving were "do you want to have a go, too?". Mr Hughson indicated he could not remember having heard those words but agreed they were recorded in his statement. In my view, there is little difference in the effect of either of those phrases, given the stabbing had occurred in the context of an altercation, and has been admitted by the offender.
Mr Hughson also said that he told the offender, "if I was you, […] you're in a bit of - bit of strife, I'd get the fuck out of here." Mr Hughson agreed he had said the offender had a small black backpack on him when he left.

Finding as to intention

The Crown at trial relied upon either an intention to kill or intention to inflict grievous bodily harm. It is necessary to make a finding as to the offender's intention or state of mind, as it is one of the matters relevant to the determination of the objective seriousness of the offending.
The Crown submitted that the Court would find the offender had an intention to kill from the following factors: 1. there had been considerable animosity between the offender and Daniel for an extended period prior to the incident; 2. that animosity included the offender having previously threatened to kill Daniel; 3. the offender was armed with a hunting knife, whereas Daniel was unarmed; 4. the offender struck Daniel in the upper chest with a knife, the site of the heart and major blood vessels; and 5. the forensic evidence shows that the offender struck Daniel with an overhead downward motion.
The Crown also fairly points to the fact that the offender was inside his home when he produced a knife, and it was Daniel who re-entered the premises. The Crown acknowledges that these matters indicate that the actions of the offender were unplanned and spontaneous. Even though the Crown submission is that there was an intention to kill, that intention was formed whilst the offender and Daniel were in the kitchen, and there is no evidence to suggest it occurred before that point (notwithstanding the waving of the knife at the front door).
The offender submitted that the offending was spontaneous, reactionary and absent of any forethought or planning. It occurred in the face of significant provocation from Daniel, even though that did not amount to a defence. It was Daniel who forced his way into the premises where the offender was then living. There was a single serious stab wound which ultimately proved fatal. The offender submitted that the Court could not be satisfied there was an intention to kill given the pre-existing animosity went both ways, and the objective circumstances of the offending left open the likelihood of an intention to cause grievous bodily harm only as opposed to an intention to kill.
I am not satisfied beyond reasonable doubt that there was an intention to kill. Even though the stabbing was carried out in the context of animosity, and a previous threat by the offender to kill Daniel, the stabbing occurred in the midst of the two men wrestling, trying to get at each other, with Daniel trying to grab the knife and with the offender waving the knife around. There was also only one significant stab wound, albeit it was in a part of the body which was particularly vulnerable. These factors, together, do not allow me to conclude that there was an intention to kill.
Even if there was an intention to kill, it would only have been formed for a very short time. I note the observation from R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252 at [16], "[a]lthough it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, this is not always the case". In my assessment, this is an instance where the general proposition does not apply. In all of the circumstances of this case, my finding that there was an intention to cause grievous bodily harm rather than an intention to kill makes very little difference to the objective criminality of the offending.

Aggravating and mitigating features of the offence and objective seriousness

The profound seriousness of the unlawful taking of another's life is well recognised. It is exemplified by the statutory guideposts of the maximum penalty of life imprisonment, and the standard non-parole period of 20 years imprisonment. It is also well recognised that murder is a crime which can be committed within a wide range of circumstances with differing gravity.
As to the aggravating features for the purposes of s 21A(2) of the Sentencing Act, the Crown submitted in relation to ss 21A(2)(b)-(d) and (j).
The Crown submitted that the use of violence (Sentencing Act, s 21A(2)(b)), while present, is an element of murder and, accordingly, is not an aggravating factor. The use of a weapon (Sentencing Act, s 21A(2)(c)), whilst common in matters of this type, is not an element of the offence. Having said that, the Crown conceded it would not aggravate the sentence.
Section 21A(2)(d) of the Sentencing Act is set out in the following terms: (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences).
The Crown noted that the offender has a very poor criminal record which spans 54 pages. His record includes both matters of violence and the possession and/or use of a weapon. Offences in the offender's criminal history include: carry cutting implement (2002); custody of knife (2003); common assault and assault occasioning actual bodily harm (2006); common assault (2007); subsequent offences of custody of knives (2012 and 2016); common assault (domestic violence) (2018); stalk or intimidate with intent to cause fear of physical or mental harm (2018); assault occasioning actual bodily harm (2018) and possess and/or use prohibited weapon (2020).
I also note that the offender is being sentenced for a "serious personal violence offence" as defined in s 21A(6), and that his record contains "serious personal violence offences", [2] being assaults occasioning actual bodily harm in 2006 and 2018 and the stalk or intimidate matter in 2018.
The offender submits that the offender's prior record would not be seen as an aggravating factor, given the previous offences have almost exclusively been dealt with to finality in the Local Court. The offender accepts, however, that his record moderates, "to some extent", his entitlement to leniency.
While these matters do not increase the objective seriousness of the offending, it is proper to take this criminal history into account in this case on the basis that it dispels any notion that the current offence is an uncharacteristic aberration, especially given the serious personal violence offences on his record. It also indicates a continuing attitude of disobedience of the law. Accordingly, retribution, deterrence and the protection of society are matters which may indicate a more severe penalty is warranted: Veen v The Queen (No 2) (1998) 164 CLR 465; [1998] HCA 14 per Mason CJ, Brennan, Dawson and Toohey JJ at 477.
The offender concedes that it is appropriate to take into account that the offender was on conditional liberty at the time of the offence (Sentencing Act, s 21A(2)(j)). The offender had been arrested on 30 June 2021 for an allegation involving Ms White. He was bail refused on that matter until 14 December 2021, when he was granted bail. There was also an Apprehended Violence Order in existence at the time of the murder, prohibiting contact between the offender and Ms White. Further, he was bailed to an address other than the Jesmond house. The offender was also the subject of a warrant issued in Queensland in 2011 for his arrest in relation to a break and enter offence. It is not apparent why the warrant had not been executed.
In determining the objective seriousness of the offence, the assessment must be undertaken "without reference to matters personal to a particular offender or class of offenders", rather "it is to be determined wholly by reference to the nature of the offending" (Muldrock at [27]). Having regard to the fact that the offender was in his home, that the attack occurred in the context of longstanding animosity, and where Daniel had forced his way into the home in an aggressive manner, I determine that the objective seriousness of this matter is below the middle of the range of objective seriousness for the crime of murder but not significantly below that range.
As to the mitigating factors, the Crown accepts that there was a significant degree of pre-trial disclosure (Sentencing Act, ss 21A(3)(l) and 22A). Indeed, both parties pointed to s 22A of the Sentencing Act as a particularly important factor in this sentencing exercise.
Section 22A(1) provides that a court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise). The lesser penalty, however, must not be unreasonably disproportionate to the nature and circumstances of the offence (Sentencing Act, s 22A(2)).
Both the offender and the Crown submitted that there should be a significant recognition for the facilitation of justice. The defence pointed to the Agreed Facts and the lack of any dispute over the fact that the offender inflicted the injuries which ultimately proved fatal. Nor was there any dispute over the difficult history between the offender, the deceased and Ms White. Similarly, there was no dispute as to the prior negative behaviour of the offender towards the deceased.
The Crown also made fair and persuasive submissions that there should be a substantial recognition of this factor on the basis that the offender's counsel had engaged in meaningful dialogue with the Crown in advance of the trial. There was a comprehensive set of Agreed Facts, and the number of witnesses to be called was reduced significantly. Further, the issues in dispute had been significantly narrowed, which reduced what was estimated to be a three-week trial to a period significantly shorter than that. The evidence in the trial ran over less than two full days. In oral submissions, the Crown further emphasised the facilitation provided by the offender. He stated: "But can I just say it should not be undervalued, the agreed facts and how significant they were. My learned friend and I took a long time to create that document, but it's significant for more than just narrowing the issues at the trial, because what it did is it prevented, in effect, for other things to become an issue, which really might have diverted the jury's attention, where it really didn't need to go, and that was one of the real significant parts, is issues that went to the background may well have diverted the jury's attention. There was […] then a potential that evidence may get before a jury that they shouldn't hear, and the trial may come to its - the obvious conclusion that that would occur. So I wanted to make it clear, those agreed facts were of significance in this matter. It wasn't simply a matter of saving the Court's time; there were other reasons that the parties both chose to go in that direction."
I am of the view that I should impose a lesser penalty than I would otherwise impose on the basis of the offender's facilitation of the administration of justice. It is clear that, not only was the trial much shorter than it otherwise would have been, thus saving court, jury, and legal representative resources, it also saved many witnesses being called. More than a fortnight prior to the trial starting, the witness list had been greatly reduced and many of the facts were agreed. As noted, the evidence at trial was adduced over less than two days, with the original witness list of 83 witnesses reduced to just 10.
It is also apparent that the clarity of the one issue to be dealt with by the jury, that is, whether the stabbing was committed in self-defence, without the jury's attention being diverted by all the other complex and difficult background issues, meant that the potential for the trial to derail was substantially minimised.
I have considered other sentences where such a discount has been given. In some cases no specified percentage discount has been identified (for example, R v Macdonald [2023] NSWSC 270 at [98]; R v White [2023] NSWSC 193 at [155]; R v Sheridan (No.2) [2022] NSWSC 1634 at [80]-[81]; R v Miller (No 2) [2022] NSWSC 1347 at [118]; R v Smith [2022] NSWSC 269 at [112]; R v LN; R v AW (No. 10) [2017] NSWSC 1387 at [127]; R v Sateki Siale [2017] NSWSC 1298 at [78]; R v Brooks (No.5) [2017] NSWSC 824 at [61]; R v Haydar (No.4) [2017] NSWSC 615 at [56]).
Other cases have specified the discount applied on the basis of s 22A of the Sentencing Act (R v NB (Sentence) [2022] NSWSC 1013 at [89] (5%); R v Archer [2021] NSWSC 1485 at [66] (2.5%) and R v Spinks [2021] NSWSC 649 at [80] (5%)).
In R v Newson (No 5) [2021] NSWSC 1661 at [89], Ierace J stated: "[The s 22A discount] has been observed to vary between 5 per cent and 10 per cent: R v Hines (No 3) [2014] NSWSC 1273 at [9]; R v Morris [2017] NSWSC 637 at [60]. In this case, the approach taken by the defence, in my view, warrants a significant reduction. That being so, it is appropriate to specify the quantum of the discount, which I determine to be 7 per cent".
In R v May (No 2) [2016] NSWSC 1070 at [85], Wilson J stated: "Whilst the reduction should not equal or exceed that which would have attached to a plea of guilty, and it cannot reduce the sentence to one disproportionate to the gravity of the crime, in the circumstances of this case, where there has always been acknowledgement of the commission of the fatal acts, a reduction of 10 per cent is appropriate".
In R v Hines (No 3) [2014] NSWSC 1273, after noting the evidence in that case had been reduced substantially such that the evidence was called over a period of less than five days, Hamill J stated at [9]: "I set out the above matters in order to demonstrate that the offender has to a substantial degree facilitated the administration of justice by disclosure of his defence in advance of the trial, by narrowing the issues to be placed before the jury and by the economic use of the court's time. Pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) the offender should receive a lesser penalty than would otherwise be imposed. However the penalty cannot be reduced to a degree whereby it is unreasonably disproportionate to the nature and circumstances of the offence: s 22A(2). Further, the reduction cannot sensibly exceed the lower limits (5-10%) that an offender might receive if he entered a guilty plea."
I note that both May and Hines were cases determined prior to the introduction of Div 1A of the Sentencing Act in April 2018, which provides for particular specified discounts for guilty pleas depending on their timing (with the regime, in short, being that a 25% discount applies to a plea of guilty entered in the magistrate's court; a 10% discount if the plea was entered more than 14 days before the trial; and a 5% discount if a plea of guilty was entered less than 14 days before the first day of the trial of the offender).
It can also, however, be noted that in R v Peterson (No. 5) [2014] NSWSC 1080, Campbell J reduced the period of a limiting term he nominated by 20% for the facilitation of the administration of justice.
In my view, the discount for facilitating the administration of justice in a jury trial does not necessarily need to be less than the discount available for late pleas of guilty. For example, a plea of guilty entered 15 days before trial would attract a 10% discount even if, up to that point, there had been no whittling down of witnesses or agreement of facts. In such a situation, arrangements for witnesses, and also jurors and court rooms, would still potentially have had to have been made. The Crown would have had to have largely prepared the trial in such circumstances. Further, even if a plea of guilty has been entered, there is sometimes a contest on the facts which takes a number of days to determine in court. Whilst that does not involve a jury, it can involve witnesses and certainly involves court time. In other words, there are many competing factors at play in the facilitation of the course of justice which do not just depend on when and whether a guilty plea has been entered.
In this case, I can indicate that a discount in the order of around 12.5% percent for the facilitation of justice is appropriate in the circumstances, keeping in mind, as I must, that the final sentence must not be unreasonably disproportionate to the nature and circumstances of the offence.
The offender also submits, and the Crown appears to acknowledge, that the offending took place in circumstances of some provocation (s 21A(3)(c)), albeit insufficient to amount to a partial defence pursuant to s 23 of the Crimes Act. I take into account that the offending took place where the offender was living in the context of hostility initiated by Daniel, albeit that Daniel was unarmed.

The offender's subjective circumstances, remorse and prospects of rehabilitation

The offender relies upon the evidence at trial, the report of Dr Richard Furst, Forensic Psychiatrist, dated 23 November 2023, together with testimonials tendered from his older sister, one of his nieces, and a friend. That friend indicates he would be prepared to offer the offender work upon completing his sentence.
The offender is a 39 year-old indigenous man who was 37 at the time of the offence. He is the youngest of four children and was born and raised in Newcastle. The offender's father was a heavy drinker. His brothers used drugs and his uncle was a heavy cannabis smoker.
His mother is indigenous and did not work in paid employment. She is diabetic and has had toes amputated as a complication of her diabetes. His father was a furniture removalist and casual labourer and died approximately 12 years ago from cancer.
The offender was recognised as suffering from behavioural issues as well as childhood emotional problems from Year 3, when he was prescribed medication. He was expelled in Year 7, attended schools for children with behavioural issues and completed some of his studies via distance education until Year 8, when he ceased his education at the age of 14.
The offender claims he was sexually abused by a local priest between the ages of 10 and 13. He started to use amphetamines at age 13 and heroin from age 15. His record clearly reflects that he was committing crimes to obtain money to support his drug habit and he spent a number of periods in juvenile detention. He also claims to have been sexually abused whilst in juvenile detention and is currently making a claim against the Department in relation to this abuse.
He has been largely unemployed throughout his life except for a period of about 2 years in his late 20s when he worked as an installer of home insulation. He was itinerant and homeless at times between periods in jail.
The offender has been involved in two significant relationships, each spanning some years. These relationships were marred by drug use from both participants. The relationships were volatile with allegations of domestic violence.
In about 2019-2020, he lost a number of close friends to murder and suicide. He developed symptoms of anxiety, depression and insomnia around that time and was prescribed an antidepressant which helped relieve his anxiety and insomnia. He took this medication until October 2023.
The offender would typically use drugs to relieve his negative thoughts and feelings, especially opiates and cannabis. He would smoke about 14 grams of cannabis per day, indicative of a high level of tolerance to the drug. He would also use methylamphetamine and/or heroin in a habitual manner.
The offender commenced with opiate replacement therapy by way of monthly Buvidal injections from around 2019 or 2020 which are ongoing. Dr Furst also recorded that the offender was using drugs in a habitual manner as at the date of the murder, including cannabis, methamphetamine and opiate drugs. Dr Furst stated that the use of such drugs tends to exacerbate emotional fluctuations, including the animosity that was evident between the offender and Daniel.
Dr Furst opines that the offender struggled to cope throughout his teenage years and adolescence as a consequence of his emotional volatility, addictive disorder and the longer-term effects of childhood trauma, sexual abuse, compounded by violence at the hands of his older siblings and parental rejection. Additionally, Dr Furst states, the fact that his father drank heavily, and that his older brothers and his uncle were also drug-addicted essentially normalised drug use as a means of coping and a way of life.
Dr Furst further opines that the offender's history is indicative of Antisocial Personality Disorder.
I accept that the offender's difficulties emerged in childhood and appeared within the context of an environment which appeared to normalise drug and alcohol use and violence. Whilst this Court has seen backgrounds more difficult than the offender's, it is still fair to observe, as did Simpson J in R v Millwood [2012] NSWCCA 2, that a person in the position of the offender who had a difficult start in life, including living in an environment where substance abuse and violence were normalised, showing behavioural difficulties as young as is Year 3, expelled in Year 7, and finally leaving school at 14 years of age, has fewer emotional resources to guide his behavioural decisions, which, in the case of this offender, appears to have had compounding effects throughout his life, resulting in ongoing issues with substance dependence and recidivism.
In my view, it is appropriate to recognise a slight reduction of the offender's moral culpability in these circumstances.
A relevant consideration in this case is deterrence, not only to the offender but generally (Sentencing Act, s 3A(b)). However, in my view, the emphasis to be given to general deterrence is attenuated to a degree because of the circumstances of the offender's childhood to which I have referred. That provides some explanation for the offender's life, which has been badly affected by substance abuse, normalised violence and consequential criminal offending. That does not mean, however, that personal deterrence and community protection are not significant.
It is of course necessary to ensure the offender is adequately punished (Sentencing Act, s 3A(a)), he is held accountable and denounced for his actions (Sentencing Act, ss 3A(e) and (f)), that the harm done to the victims and the community is recognised (Sentencing Act, s 3A(g)), and that his rehabilitation is promoted (Sentencing Act, s 3A(d)).
As to rehabilitation, however, I note that there is no evidence of remorse. This lack of remorse goes to the offender's prospects of rehabilitation. I am also mindful that, where there are lengthy terms of imprisonment, the prospects of rehabilitation may well take on less significance. In this case, there is no basis to find the offender's prospects for rehabilitation anything other than guarded.
The offender asks the Court to find special circumstances, pointing to the risk of institutionalisation, and the benefit to the offender if he had a longer time on parole to allow monitoring of his abstinence from drugs and to enhance his prospects for a successful return to the community.
Despite the cogency of these submissions, I am of the view that given the overall length of the term, the usual statutory ratio will provide sufficient time on parole to assist his successful reintegration to the community.

Victim impact

In the course of the sentencing proceedings, the Court received a number of victim impact statements. Daniel's father, sister and brother all read their statements in open court. The other statements of Daniel's mother and of his children were read on their behalf by other members of the family.
Pursuant to s 30E(3) of the Sentencing Act, I consider that it is appropriate to take these statements into account. I do so on the basis that the harmful impact on Daniel's family is an aspect of the harm done to the community as a whole by the actions of the offender. It is also an important way for the Court and the community to find out more about Daniel.
Daniel's father, Alfred Pettersson, reflected on his son as a friend, fishing partner, and confidant. He recounted the immense heartbreak and sadness that overcame him after the death of his son. His son was a successful qualified carpenter and had bought his own house. The pride he has in his son is clearly evident. He told the Court that since his son's death, he now faces trouble sleeping, thinking of his son and the future of his two little boys they now look after. He poignantly stated that the hardest thing for a father to do is to bury his son.
Daniel's mother, Pauline Pettersson, described her son as creative, kind and generous. She told the Court that the death of her son has left her physically, emotionally and psychologically scarred. She has lost weight and now suffers from a poor immune system due to the "ongoing trauma". She said how she wakes up in the middle of the night and is unable to get back to sleep, which only exacerbates the sadness she feels. She says that it hurts to think Daniel's two sons will never know their father, and to tell them eventually how he died will be very painful and difficult. They miss him daily, and especially on special occasions. Ms Pettersson told the Court that Daniel had a creative talent as a carpenter, and he made works of art including a queen bed, a pool table, a deck for his sister's house, a huge rocking chair and he renovated his own house.
Daniel's brother, Andrew Pettersson, described how the trauma and devastation of losing his brother has left scars that may never fully heal. The pain they share as a family is immeasurable, and Daniel's absence is a void that can never be filled. He told the Court that he now grapples with sleep disturbances, loss of appetite, and a general deterioration of his overall well-being. He also conveys how the unexpected financial strain on his parents as a result of now caring for his brother's children has added another layer of stress to their lives.
Daniel's older sister, Natasha Perrozzi, said that losing Daniel in such a way has left her heartbroken. She told the Court how much the offender's actions have caused the family immense pain, including her 11 year-old son. As a result of these events, she now experiences tremendous grief, pain, suffering, anxiety, panic attacks, sleep disturbances, nightmares, and Post Traumatic Stress Disorder. She has engaged in regular therapy, counselling, church services and a support group to assist her healing. Daniel's murder is not something she will ever get over but is something she is learning to live with.
The statement of Daniel's children, DW, aged three, and MW, who is one year old, was written on their behalf by Daniel's sister, Natasha Perrozzi. DW was 18 months old when Daniel was killed and MW was not yet born. They now no longer live with either of their parents. Ms Perrozzi told the Court that DW has spoken about feeling sad, angry, and scared as he recalls memories from the day of his father's death.
DW still recognises Daniel in photos and MW is becoming familiar with his father's image. They will now miss out on all the important father/son milestones and can no longer create special memories together. Ms Perrozzi told the Court that they will miss out on happy milestones like Father's Day, their first day of school, enjoying having their dad watching them play weekend sports, or teaching them how to ride a bike or cast a fishing rod. The trauma of their father's death will live on as they become parents and grandparents, leaving a big hole and loss in their family lineage.
She described how the children play with Daniel's dogs and treasure small items of furniture their father made to feel connected with him. She recounted instances where DW referenced his father's wooden creations and exclaims "that's what my daddy made!". Ms Perrozzi told the Court that it is heartbreaking to see what the boys have been through in their short lives. The offender's violent actions have catastrophically impacted both children's lives in unimaginable ways both now and into the future.
The victim impact statements were powerful and provided the Court with insight into who Daniel was and the impact of his death on his family. I am acutely conscious of the fact that neither words nor the imposition of a sentence can restore the loss of a loved one or assuage the grief caused to this family. But it is important that the impact of the offender's actions upon the victim's loved ones be recognised and never forgotten. On behalf of this Court, I extend my sympathies and sincere condolences to Daniel's family.

"Comparable cases"

The parties referred me to a number of cases said to be relevantly comparable. [3] I have considered each of them carefully and have found them of real assistance. However, no two cases are ever the same, and, of course, individual sentencing outcomes cannot establish binding sentencing principles (Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]).

Sentence

Taking into account all of the matters referred to above, I impose a sentence of 20 years' imprisonment. I impose a non-parole period of 15 years with the sentence to commence on 12 January 2022.
Kevin Smith, the offence of murder is a "serious violence offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). I am obliged by s 25C of that Act to advise you of the existence of that legislation and its application to the offence you have committed.
Kevin Smith, for the murder of Daniel Pettersson, I sentence you to imprisonment for 20 years. Pursuant to ss 44(1) and (2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I set a non-parole period of 15 years commencing on 12 January 2022, and an additional term of 5 years commencing on 12 January 2037 and ending on 11 January 2042.
I remit sequences 1 and 2 on the s 166 Criminal Procedure Act 1986 (NSW) Certificate to the Local Court at Newcastle on 22 May 2024.

Endnotes

This is a pseudonym, to protect the identity of her children who share her surname.
Section 21A(6) provides that a serious personal violence offence means a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)) that is punishable by imprisonment for life or for a term of 5 years or more. Section 4 of that latter Act provides: 4 Meaning of "personal violence offence" In this Act, personal violence offence means - (a) an offence under, or mentioned in, section 19A, 24, 25, 26, 27, 28, 29, 30, 31, 33, 33A, 35, 35A, 37, 38, 39, 41, 43, 43A, 44, 45, 45A, 46, 47, 48, 49, 58, 59, 61, 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O, 65A, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 73, 73A, 78A, 80A, 80D, 86, 87, 91P, 91Q, 91R, 93G, 93GA, 110, 195, 196, 198, 199, 200, 562I (as in force before its substitution by the Crimes Amendment (Apprehended Violence) Act 2006) or 562ZG of the Crimes Act 1900, or (b) an offence under section 13 or 14 of this Act […].
R v Weaver (No 13) [2022] NSWSC 1140; R v Chatimba (No 2) [2021] NSWSC 863; R v RJB [2019] NSWSC 719; Perkins v R [2018] NSWCCA 62; Beldon v R [2012] NSWCCA 194; R v Pearce [2008] NSWSC 1434; R v Carr [2009] NSWSC 995; R v Hines (No 3) [2014] NSWSC 1273; R v Dennis [2018] NSWSC 1733; R v Archer [2021] NSWSC 1485. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2024

(Crimes Act 1900(NSW)

(Crimes (Sentencing Procedure) Act 1999(NSW)

JUDGMENT

On Thursday 6 January 2022 between 3:30pm and 3:40pm, in Jesmond, New South Wales, Daniel Pettersson was tragically fatally stabbed by the offender, Kevin Smith. Daniel was a much-loved man and, at the time of his death, was the father of a young child, and of a child yet to be born. I will have more to say about Daniel and the devastatingly sad loss suffered by his family later in my remarks. These remarks must now focus, however, on the events of 6 January 2022, the circumstances leading up to those events, and on the offender's circumstances.
The offender was charged with murder after presenting himself to the police on 12 January 2022. He admitted to stabbing Daniel, but claimed it was in self-defence. The incident arose from a deep personal animosity between the two men, both of whom, at times, had been in a relationship with Andrea White, [1] who was at the scene at the time of the murder.
A jury trial was held at the Supreme Court in Newcastle, between 4 and 12 September 2023, where the only issue for determination was whether the fatal stabbing of Daniel was committed by the offender in self-defence. On 12 September 2023, the jury returned a verdict of guilty to murder, thereby rejecting the offender's claim of self-defence. He was convicted on that day.
A sentence hearing was held on 22 March 2024. It is now my duty to determine the appropriate sentence for the offender.
The maximum penalty for the offence of murder is life imprisonment (Crimes Act 1900 (NSW), s 19A). A life sentence must be imposed if the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence (Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"), s 61(1)). The Crown Prosecutor did not submit that a life sentence should be imposed. I am not satisfied that a life sentence is appropriate for the offender.
A standard non‑parole period of 20 years for the offence of murder has been specified by the legislature (Sentencing Act, s 54A).
Both the maximum penalty and the standard non-parole period are important statutory guideposts which need to be kept in mind when I consider all of the factors relevant to the sentencing task, assess their significance and then determine the appropriate sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27] ("Muldrock"); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J).

Facts of the offending

Any findings of fact I make must be consistent with the jury's verdict. To the extent that I make findings of fact adverse to the offender, I must be satisfied of the relevant fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I must be satisfied of the relevant fact on the balance of probabilities (see The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ)).
In the trial, a large part of the relevant evidence was put before the jury by way of a lengthy Agreed Facts document, tendered pursuant to s 191 of the Evidence Act 1995 (NSW). As will be discussed in more detail below, this meant that the trial was focussed only on the matters in dispute and saved the calling of many witnesses. It also means that my task of fact finding is confined to the facts centred around the events just before and immediately after the stabbing. No witness saw the stabbing itself take place.

(2020) 103 NSWLR 806

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (8)

Cases Cited (41)

Cited By (1)