Citation: R v Smit, Smit and Tarrant [2005] NSWSC 1277
Court: Supreme Court of New South Wales
Date: 8 December 2005
Judge(s): Latham J
Background
The three offenders were convicted by a jury in September 2005 of the murder of Craig Patrick Collins, who died on or around 28 August 2001 at his premises in Katoomba. The victim had welcomed the offenders into his home. He was found in his kitchen wrapped in blankets, having suffered blunt force trauma to the neck consistent with a cricket bat, multiple stab wounds, and extensive bruising. The principal cause of death was a fracture of the voice box leading to suffocation.
The Crown case, which the jury accepted, was that all three offenders were parties to a joint criminal enterprise to kill or cause grievous bodily harm to the victim. The court could not determine beyond reasonable doubt which offender struck the fatal blow, nor could it apportion substantially greater culpability to any one of them. The attack was found to be spontaneous, unplanned, and unpremeditated.
This was the second conviction for all three offenders. They had originally been convicted in March 2003 and sentenced by Hulme J in October 2003. Following a successful appeal against conviction, a retrial was held before Latham J, resulting in fresh guilty verdicts and this resentencing judgment.
Legal Issues
- Whether the resentencing court should impose sentences identical to, lesser than, or greater than those imposed by Hulme J after the first trial
- Whether the specific intent to kill could be established beyond reasonable doubt for each offender within the joint criminal enterprise
- Whether any offender could be attributed a substantially greater or lesser role in the fatal assault
- Whether special circumstances existed to justify varying the statutory proportion between the non-parole period and the total sentence
- Whether the legislative changes applying to murders committed after 1 February 2003 applied to this offending
Decision
Latham J found that the Crown's case was established to the requisite standard: each offender participated in the joint criminal enterprise and inflicted injury on the victim to some extent. However, the court could not find beyond reasonable doubt that any of the three formed an intention to kill, nor that any one offender bore a materially greater role. The Crown did not press for a finding of intent to kill.
On the trigger for the assault, Latham J accepted that Steven Smit believed the victim was assaulting Donna Tarrant, prompting him to intervene. However, the court found this belief was not established to be well-founded in fact, and in any event the violent response was grossly disproportionate to the circumstances. The jury's rejection of Shiree Smit's exculpatory trial evidence was noted.
All counsel, including the Crown, submitted there were no circumstances warranting a longer sentence than that imposed by Hulme J. Defence counsel argued, at minimum, that sentences should not exceed those originally imposed. Latham J agreed with this position. The court also found that special circumstances did not warrant departure from the standard statutory non-parole proportion, concluding the standard parole period was sufficient for supervision upon release.
The court noted that the legislative amendments applying to post-February 2003 murders, which would ordinarily produce significantly higher penalties, did not apply here. The offenders were entitled to be sentenced according to the law as it stood at the time of the offending.
Orders Made
- Steven Smit: Convicted of murder. Sentenced to 16 years' imprisonment commencing 25 November 2001, expiring 24 November 2017. Non-parole period of 12 years commencing 25 November 2001, expiring 24 November 2013.
- Shiree Smit: Convicted of murder. Sentenced to 16 years' imprisonment commencing 31 August 2001, expiring 30 August 2017. Non-parole period of 12 years commencing 31 August 2001, expiring 30 August 2013.
- Donna Tarrant: Convicted of murder. Sentenced to 16 years' imprisonment commencing 31 August 2001, expiring 30 August 2017. Non-parole period of 12 years commencing 31 August 2001, expiring 30 August 2013.
Key Takeaways
- Where a joint criminal enterprise to murder exists and the evidence does not establish which participant struck the fatal blow, a sentencing court may treat the participants' culpability as equivalent for sentencing purposes.
- In resentencing following a successful appeal and retrial, the court acknowledged the practical ceiling created by the original sentences and found no basis to impose harsher penalties on any of the three offenders.
- The finding that the attack was spontaneous rather than premeditated was relevant to the sentencing exercise, though it did not diminish the objective gravity of a sustained, lethal assault on a vulnerable man in his own home.
- Under the law applicable to pre-February 2003 murders, offenders were entitled to the benefit of sentencing provisions then in force, even though subsequent legislative changes to the Crimes (Sentencing Procedure) Act 1999 would otherwise have produced significantly higher penalties.
- The mere existence of facts capable of constituting "special circumstances" does not compel a reduction in the non-parole period proportion; a sentencing court retains a discretion to apply the standard statutory ratio where it is sufficient for the purposes of post-release supervision.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 54A
Cases
- McL v R (2000) 203 CLR 452
- R v MM [2002] NSWCCA 431
- R v Fraser (2005) NSWCCA 77