SMITH v REGINA

Judgment 1CAMPBELL JA: I agree. 2RS HULME J: I agree with Hoeben J. 3HOEBEN J: Offence and sentence Between 26 August 2009 and 3 September 2009 the applicant was tried by a jury before Acting Justice Mathews upon an indictment that pleaded a count in terms that on 28 June 2008 at Narrabri he did murder Bradley Robert Hoye (the deceased). 4Before the resumption of the Crown case in the trial, on the morning of 3 September 2009, the applicant was re-arraigned upon the indictment in the presence of the jury. The applicant then pleaded not guilty to murder, but guilty to manslaughter. The Crown accepted the plea to manslaughter in full satisfaction and discharge of the indictment. Pursuant to s157 of the Criminal Procedure Act 1986 her Honour accepted the plea of guilty, discharged the jury and found the applicant guilty of manslaughter. 5Manslaughter is an offence contrary to s18(1)(b) of the Crimes Act 1900 which has as its maximum penalty imprisonment for 25 years. 6On 6 November 2009 her Honour sentenced the applicant to a term of imprisonment with a non-parole period of 4 years and 6 months commencing 11 May 2009 and expiring 10 November 2013, with a balance of term of 2 years and 3 months expiring on 10 February 2016. 7The applicant seeks leave to appeal pursuant to s5(1)(c) of the Criminal Appeal Act 1912 against the sentence imposed by her Honour. The grounds of appeal are: Ground 1 - The sentence is manifestly excessive. Ground 2 - Her Honour erred in her assessment of the degree of threat posed by the deceased. Factual background 8Her Honour set out the factual background in paragraphs [2] - [8] of her Remarks on Sentence as follows: "2 The circumstances of the offence are as follows."' In June 2008, Bradley- Hoye, who was then 32 years old, was living in Narrabri. It seems that on the night of Friday, 27 June, he had had an altercation with a person or group of people in the vicinity of the Tourist Hotel in Maitland Street, Narrabri. He was heavily intoxicated at the time. He returned to his home, not far away, changed his clothes, collected two knives, put on a balaclava and went out looking for the person whom he believed was responsible. He returned to the Tourist Hotel shortly after midnight. At about the same time Neil Gibbs, who was a friend of the offender, parked his car outside the Tourist Hotel. The offender and several of his friends were also in the vicinity, having recently left the nearby Caledonia Hotel where they had been drinking for part of the evening. None of them had ever met Mr Hoye before. Even if they had, they would probably not have recognised him, as his head and face were entirely concealed by the balaclava. 3 Mr Hoye first ran in the direction of Mr Gibbs. He was wielding the knives in the air and saying "you're that cunt, I'm going to get you, I'm going to cut you up." Mr Gibbs evaded him and Mr Hoye then turned his attention towards the offender, Ashley Smith. He ran towards him, but Mr Smith threw a can of rum at Mr Hoye, and his companions started to do the same. At about this time a chase developed, which took the group through an arcade which ran between Maitland Street and Tibbereena Street. Mr Gibbs was being pursued by Mr Hoye, who was still wearing his balaclava and wielding his knives. He in turn was pursued by Ashley Smith and his companions. At Tibbereena Street the group turned to the right and in due course ended up outside the Crossing Theatre in the same street. At this point, according to Mr Gibbs, Mr Hoye was still swinging his knives and saying he was going to kill Ashley Smith and his associates. At about this time, Mr Gibbs ran to a nearby tree and broke off a fairly large branch. He ran back to Mr Hoye, raised the branch and told him that he would hit him with it if he, Mr Hoye, did not drop his knives. Mr Hoye raised his hands in the air, as a sign of surrender, and said that he wanted to make a truce. At that point Mr Hoye started to back away, still holding his knives. Also at about that time, one of the other men took the tree branch from Mr Gibbs. Very shortly afterwards it was taken by Ashley Smith. Mr Smith swung the stick with both hands, and struck Mr Hoye in the head on at least two occasions. Mr Hoye fell to the ground. Whilst he was on the ground, Mr Smith again struck him with the stick at least once, and possibly more. He also kicked him around the head until one of his friends pulled him back. It is likely that another of his companions also kicked Mr Hoye once when he was on the ground. 4 At some stage during this fracas, Mr Smith sustained an injury to the webbing of his left hand between the forefinger and the thumb. This must have been caused by one of Mr Hoye's knives, although there is no clear evidence as to when or how this injury occurred. 5 The police and ambulance were called to the scene. The first paramedic to arrive, at 12.36am, found that Mr Hoye was not breathing and there was no pulse. Attempts to perform CPR, both at the scene and in hospital, were unsuccessful. At 1.40am life was pronounced extinct. Mr Hoye never regained consciousness after collapsing in Tibbereena Street. 6 An autopsy performed by Dr Kevin Lee found that the cause of death was inhalation of blood, caused by blunt force head and neck injury. The deceased had sustained extensive injuries to the right side of his face including a complex tripod fracture of the right maxilla, and multiple fractures to the zygomatic bone as well as an oblique fracture of the right lower jaw. These injuries were associated with extensive haemorrhage, particularly within the mouth. 7 Internal examination revealed a fracture of the skull in the left occipital area. In addition there was extensive bilateral haemorrhage to the muscles at the back of the neck. These injuries were consistent with blows by a hard instrument, or kicks by a person wearing a hard boot, as the offender was at the time. It was the combination of bleeding from these injuries and being profoundly unconscious which led the deceased to swallow and inhale large quantities of blood, thus causing his death. 8 The plea of guilty to manslaughter was offered by Mr Smith and accepted by the Crown on the basis of excessive self-defence. This was, in the circumstances, an entirely appropriate outcome. By the time Mr Smith inflicted the fatal injuries, Mr Hoye posed no immediate threat whatsoever, either to Mr Smith or to any of his companions. However, Mr Smith had consumed a considerable amount of alcohol that evening. Almost certainly his judgment was seriously impaired. The injury he sustained to his hand, which immediately started bleeding profusely, reinforced his mistaken view that he was at risk and that he had to defend himself and his companions." Remarks on sentence 9The evidence in the trial was evidence before her Honour on sentence. This was supplemented by documentary evidence tendered during the sentence proceedings and the evidence of the applicant's father. The applicant did not give evidence. Even though he did not give evidence, her Honour noted as part of the background facts that when the applicant spoke to a clinical psychologist, Mr Champion, he had only a patchy memory of the incident and did not know how he obtained the stick with which he struck the deceased. He told Mr Champion that he could not remember kicking the deceased when he was on the ground, although as her Honour found and as the evidence clearly indicated, he undoubtedly did so. 10In relation to the applicant's subjective case, he was aged 23 at the time of sentence, having been born in March 1986. He was of Aboriginal descent, as were both his parents. He was the fourth of five children and had lived all his life in Wee Waa. He was living there with his parents at the time of the offence. His family background was a supportive one and his parents were highly regarded in the area. 11On the basis of Mr Champion's two reports, her Honour noted that the applicant had a "truncated" education and had tried unsuccessfully to complete year 10 on two occasions. As a result, his employment had been of a manual or unskilled nature, mainly in rural industries. He was working as a cotton picker at the time of the offence. 12Her Honour found that the applicant had a long history of cannabis and alcohol abuse, having started using cannabis at about the age of 12. His use of cannabis was on a daily basis and on the night of the killing he had used cannabis, as well as consuming a considerable amount of alcohol. The applicant had started drinking alcohol at about the age of 16. Although his consumption was generally moderate, on occasions it was excessive. 13Her Honour found that in relation to other aspects of his life, the applicant demonstrated a high degree of stability. He had been in a de facto relationship with a young woman for a number of years, which had terminated shortly before the offence. Since then they had reconciled and she had remained supportive of him throughout the proceedings. 14A matter which her Honour regarded as particularly impressive was that the applicant had an almost non-existent criminal record. The only convictions recorded against him, other than driving matters, related to damage to property and contravening an apprehended violence order which took place at almost the same time as this offence and related to his relationship with his then estranged girlfriend. Her Honour treated the applicant as a person of prior good character. 15Her Honour characterised the killing of the deceased as a tragedy which should never have happened. She noted that the deceased was heavily affected by alcohol at the time, having a post mortem blood alcohol reading of .195, and that there were traces of amphetamines and methylamphetamine in his blood. This accounted for the deceased's aggressive and belligerent behaviour towards a group of strangers. Her Honour took into account that the applicant was also significantly intoxicated with alcohol and was probably also affected by his cannabis use. As a result, her Honour found that his judgment was very seriously impaired. 16Nevertheless, a key finding by her Honour was that by the time the applicant struck the deceased with the tree branch, the deceased was already retreating. While he was still holding the knives, he no longer posed any realistic threat to the applicant or his companions. In the particular circumstances of this case her Honour was prepared to treat the applicant's intoxication as a mitigating factor, albeit a minor one. Her Honour took this approach on the basis that the applicant's conduct was an irrational response which was brought about by the effect of alcohol consumption ( Stanford v R [2007] NSWCCA 73). 17Her Honour accepted that the situation in which the applicant found himself was one which had been thrust upon him against his will. Her Honour regarded that also as a mitigating factor. In particular, her Honour noted that what occurred was very much a spur of the moment action. Her Honour was not able to determine how the branch came into the applicant's possession but found that obtaining it was a spontaneous, as distinct from a considered, act on his part. Her Honour also had regard to the fact that the injury to the applicant's hand was significant and would have bled profusely at the time and would have increased his sense of insecurity. 18Her Honour considered that those matters were relevant to determining the objective seriousness of the offence. On the negative side, her Honour found that the applicant continued to strike and kick at the deceased, even after he was on the ground, and regarded this as constituting an unnecessary and excessive display of aggression. Taking that and the mitigating circumstances into account, her Honour determined that the case fell within "the lower range of culpability for manslaughter involving excessive self defence". 19In relation to s21A of the Crimes (Sentencing Procedure) Act , her Honour could find no aggravating factors but did take into account some further mitigating factors. In that regard, her Honour noted that the applicant had good prospects of rehabilitation and was unlikely to re-offend. She also found that the applicant had shown remorse for his actions as represented by his plea of guilty. Finally, her Honour took into account the applicant's age, i.e. that he was only 22 when the offence was committed. 20In relation to the plea of guilty, her Honour found that the applicant was entitled to a 10 percent discount to reflect the utilitarian value of the plea. 21In passing sentence her Honour summarised her conclusions as follows: "31 The maximum sentence for manslaughter is 25 years imprisonment. Actual sentences can vary between a non-custodial outcome at one extreme and a sentence approaching the maximum at the other. The present offence is in the lower range of objective seriousness for manslaughter and was committed by an offender who has a number of mitigating factors in his favour. Nevertheless, it cannot be forgotten that the offence involved the unnecessary and violent taking of another person's life." The appeal Ground 1: The sentence is manifestly excessive. Ground 2: Her Honour erred in her assessment of the degree of threat posed by the deceased. 22It is appropriate to deal with these grounds of appeal together, since each ground raises the same issue. 23The applicant's basic submission is that her Honour did not have due regard to the degree of threat posed by the deceased to the applicant and others in the group, even though he might no longer have presented the same threat to Mr Gibbs. 24The Court was provided with detailed references to the transcript of the evidence at trial with a view to establishing that although the deceased had raised his hands in the air as a sign of surrender and was backing away, he was still holding the knives in a threatening way. 25The applicant submitted that in those circumstances, it was reasonable for him to conclude that his life was still at risk as were the lives of his friends. 26The applicant submitted that a proper analysis of the evidence by her Honour would have demonstrated that the blows struck while the deceased was on his feet were not criminal but were excused by the law of self-defence. He submitted that such an approach was not inconsistent with the guilty plea, i.e. the plea would amount to an acceptance that the blow with the stick and the two kicks to the head while the deceased was on the ground substantially contributed to his death, were done with an intent to cause grievous bodily harm and were not a reasonable response to the circumstances as the applicant perceived them. 27The applicant submitted that her Honour did not approach the facts in this way and that it was clear from her remarks on sentence that she treated all the applicant's acts after he obtained possession of the branch as criminal. The applicant submitted that had her Honour properly assessed the evidence, she would have concluded that the culpability for any blows delivered by the applicant to the deceased while the deceased was standing was "extremely slight". 28The applicant submitted that on a proper understanding of the evidence, and by reference to the applicant's very strong subjective case, it was clear that the sentence imposed by her Honour was manifestly excessive. This was particularly so when her Honour had assessed the offence as being of low objective seriousness. 29I do not accept that her Honour did not accurately summarise and appreciate the effect of the evidence concerning the actions of the applicant. It was well open to her Honour to make the findings which she did. The two sober members of the group, i.e. Mr Gibbs and Ms Dicks, made it clear that after Mr Gibbs threatened the deceased with the branch, the deceased said on a couple of occasions that he wanted to make a truce, lowered his hands and commenced backing away. He still held the knives but had lowered his hands from the threatening stance he had originally adopted when confronting Mr Gibbs. At that point in time, the deceased was facing a group who had chased him and who were now standing around him in a threatening manner (T.319.10). 30In making her assessment of the evidence, her Honour had an advantage which this Court does not. Her Honour saw and heard the witnesses give their evidence. In setting out her summary of the factual background, her Honour was relying not only upon the transcript but on her assessment of the various witnesses. 31Once it is accepted that it was open to her Honour to make those findings of fact in relation to how the offence occurred, the primary basis for the applicant's appeal falls away. It is clear from her Honour's findings that from the time when the deceased indicated that he wanted a truce and commenced backing away from the group, he no longer presented a threat to the applicant. It was against those background facts that the applicant struck the deceased on the head on at least two occasions and then struck him on the head at least once more after he had fallen to the ground and kicked the head until he was pulled away. 32The findings made by her Honour were inconsistent with any conclusion that the response of the applicant was a reasonable response to the conduct of the deceased at the time of the fatal blows , even allowing fully for the circumstances of the previous aggressive conduct of the deceased and the intoxicated state of the applicant. Such findings, while still being consistent with her Honour's conclusion that the case fell within the lower range of culpability for manslaughter involving excessive self defence, are not consistent with the proposition that the culpability of the applicant was "extremely slight" in relation to the blows delivered by him when the deceased was still standing. 33All of the other matters referred to by the applicant in his submissions, in particular his strong subjective case, were fully analysed and given appropriate weight by her Honour. Accordingly, I am satisfied that the sentence passed was well within the legitimate exercise of her Honour's sentencing discretion. 34This emerges clearly when one takes into account the undisputed objective elements in the offence. (i) It involved the taking of a human life. (ii) There was a substantial level of excess involved in the offence, e.g. the nature of the weapon used, and the number and location of the blows and kicks to the head. (iii) That some of the blows were struck as the deceased lay helpless on the ground. (iv) At the time of the first blow, the deceased was backing away and was asking for a truce. 35It follows that the grounds of appeal have not been made out. 36The orders which I propose are that leave to appeal be granted but that the appeal be dismissed.