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Supreme Court 16 September 2011

R v Smith (No 4)

[2011] NSWSC 1082

Homicide
CRIMINAL LAW SENTENCING MURDER "STALE" OFFENCE

Citation: R v Smith (No 4) [2011] NSWSC 1082
Court: Supreme Court of New South Wales
Date: 16 September 2011
Judge(s): Buddin J

Background

The offender was convicted by jury of the murder of Russell Lyons, which occurred in a carpark off Smart Street, Fairfield, in the early hours of 3 June 1995. The deceased's body was found approximately five hours after the fatal attack, with his wallet and shoes missing. The death was caused by a large subdural haematoma to the back of the skull, with significant blood alcohol levels also contributing.

The case remained unsolved for over fourteen years. The offender only came to police attention in 2008, when his DNA profile, entered onto the national database following an unrelated arrest in Queensland for bicycle theft, was matched to DNA material found inside a pair of Adidas running shoes discarded near the body. The Crown's case, accepted by the jury, was that the offender killed the deceased in the course of robbing him of his wallet.

The sentencing hearing required the court to determine the precise factual basis for sentence, including the extent to which injuries observed on the deceased were caused by the offender, as opposed to a separate attack by an unidentified third party earlier that evening.

  • What factual basis should be established for sentencing, particularly regarding the extent of the offender's role in the deceased's injuries?
  • How should a "stale" offence, committed in 1995 but not prosecuted until over a decade later, be treated in sentencing?
  • What weight should be given to mitigating factors, including rehabilitation, the offender's personal circumstances, and his mental health?
  • Whether "special circumstances" existed to justify a non-parole period shorter than the ordinary statutory proportion of 75% of the head sentence.

Decision

Factual findings on injuries. The court examined conflicting witness accounts from two companions of the deceased who observed a separate altercation on The Crescent earlier that night, involving an unidentified Islander male who struck the deceased about the face. Buddin J preferred the evidence of Ian Cross over that of John Byrne, finding that at least some of the deceased's injuries were not caused by the offender. However, the jury's verdict established that the fatal blow, the subdural haematoma to the back of the skull, was caused by the offender alone.

The "stale" offence. The court treated this as a serious aggravated case of murder, committed during a robbery. The offence predated the standard non-parole period regime under the Crimes (Sentencing Procedure) Act 1999, so no standard non-parole period applied. The court noted that the lengthy delay between offence and prosecution was largely attributable to the offender's own conduct in evading detection. However, the court accepted that the delay nonetheless warranted a measure of flexibility in sentencing, albeit in a limited fashion.

Mitigating factors. The court considered the offender's demonstrated progress toward rehabilitation, his mental health concerns, including suicidal ideation, and the difficult personal circumstances reported in the psychological material before the court. The court noted that the period of "uncertain suspense" caused by the delay did not warrant significant leniency, as the offender had not been under the weight of pending proceedings for an extended period in the conventional sense.

Special circumstances and non-parole period. The parties agreed that data from Judicial Commission monographs showed that non-parole periods during the relevant era were typically set at less than the current 75% statutory ratio. This provided a sufficient basis for a finding of special circumstances, justifying a non-parole period of 12 years in an 18-year total sentence.

Orders Made

  • The offender was sentenced to a total term of imprisonment of 18 years, with a non-parole period of 12 years, commencing 30 April 2010.
  • The total term expires 29 April 2028; the offender is eligible for parole from 29 April 2022.
  • The court recommended the warrant be endorsed to require close monitoring for suicidal ideation, an assessment by an appropriate health professional, and that the psychological report of Ms Debbie Case (dated 10 August 2011) be attached to the warrant and brought to the attention of Corrective Services NSW.

Key Takeaways

  • A conviction for murder arising from an offence committed before the standard non-parole period legislation was enacted is not subject to any standard non-parole period, leaving the sentencing court with full discretion in fixing the non-parole term.
  • Where a significant delay occurred between the commission of a "stale" offence and the offender's prosecution, the court may apply "a measure of understanding and flexibility" in sentencing, but this concession is limited where the delay resulted substantially from the offender's own evasion of detection.
  • The Supreme Court confirmed that the period of "uncertain suspense" identified in cases such as R v Hathaway and R v Shorten is not automatically a weighty mitigating factor; its significance depends on the circumstances of the delay.
  • Historical sentencing data, available through Judicial Commission monographs, can provide an accepted basis for finding "special circumstances" in stale offence cases, where the non-parole period customarily set at the time of the offence was proportionally shorter than the current 75% statutory ratio.
  • Factual disputes at sentencing about the contribution of third parties to a victim's injuries are resolved on an assessment of witness reliability, with the court applying the principles in R v Isaacs to determine the basis for sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- MAH v R [2006] NSWCCA 226
- R v Armstrong [2010] NSWSC 800
- R v Blanco (1999) 106 A Crim R 303
- R v FD & JD (2006) 160 A Crim R 392
- R v Hathaway [2005] NSWCCA 368
- R v Isaacs (1997) 41 NSWLR 374
- R v Jacobs; R v Mehajer (2004) 151 A Crim R 452
- R v Previtera (1997) 94 A Crim R 76
- R v Shorten [2005] NSWCCA 106
- R v Simpson (2001) 53 NSWLR 704