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Supreme Court 14 December 2012

R v Graham Keys SMITH

[2012] NSWSC 1565

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCE MURDER EXTENDED JOINT CRIMINAL ENTERPRISE NO ISSUE OF PRINCIPLE ARSON

Citation: R v Graham Keys Smith [2012] NSWSC 1565
Court: Supreme Court of New South Wales
Date: 14 December 2012
Judge(s): Rothman J

Background

A jury convicted the offender of the murder of Luke Charles Ogilvie and of intentionally destroying the deceased's dwelling house by fire, both occurring on 26 March 2010 at Bilambil, NSW. The offender did not personally inflict any physical violence on the deceased. His liability for murder arose through extended joint criminal enterprise, and his liability for arson arose through accessorial liability.

The offender had nominated the deceased to co-offenders who were known to rob drug dealers. He provided information about the layout of the premises and the location of cash and drugs, directed the co-offenders to the house, and accompanied them there. The co-offenders carried out a violent assault, used a car to ram and run over the deceased, and caused his death. Later that evening, the offender declined to return to the scene but supplied a jerry can, which the co-offenders used to burn down the deceased's home and incinerate his body.

The sentencing proceedings involved consideration of the offender's objective criminality within each offence, his significant personal and psychological history, and the balancing of the statutory purposes of sentencing.

  • What sentence was appropriate for murder where the offender's liability rested on extended joint criminal enterprise rather than direct violence?
  • What sentence was appropriate for arson where liability arose as an accessory?
  • How should the offender's extensive subjective circumstances, including mental health, cognitive impairment, childhood trauma, and drug history, affect the sentence?
  • Whether special circumstances existed justifying a longer parole period to enable rehabilitation.

Decision

Rothman J found, accepting the post-verdict police interview over the trial version, that the offender was present throughout the attack on the deceased. The court accepted beyond reasonable doubt that the offender did not personally occasion physical violence. However, he had known of his co-offenders' propensity for violence, was aware the deceased was likely armed and highly defensive of his property, and had organised and participated in the joint enterprise to rob and assault him. In those circumstances, the jury's inference that the offender contemplated the co-offenders might form an intention to inflict grievous bodily harm was accepted as correct.

Rothman J assessed the objective criminality of the murder as sitting at the lowest possible level within that offence. Aggravating features included the planning of the crime, its commission in company, the fact that it was committed at the victim's home, and that the offender was on conditional liberty at the time. The arson was similarly placed at the lowest end of the scale, given the accessorial rather than principal nature of the offender's participation.

The court considered detailed expert evidence from a clinical psychologist and a forensic psychiatrist. The offender presented with a history of childhood trauma, sexual abuse, severe cognitive limitations, likely brain damage, ADHD, depression, anxiety, and longstanding polysubstance abuse. Both experts identified these factors as having impaired the offender's judgment and decision-making. The court accepted that rehabilitation prospects were meaningfully improved following the offender's cessation of drug and alcohol use, particularly if community-based support continued on release.

Special circumstances were found to exist because of the offender's need for an extended supervision period in the community to support rehabilitation. The court adjusted the parole period accordingly, departing from the standard ratio between non-parole and total head sentence.

Orders Made

  • Convicted of murder (26 March 2010, Bilambil NSW): sentenced to a non-parole period of 10 years commencing 19 April 2011 and concluding 18 April 2021, with a remainder of term of 4 years concluding 18 April 2025; first eligible for parole on 18 April 2021.
  • Convicted of intentionally destroying a dwelling house by fire (arson, 26 March 2010, Bilambil NSW): sentenced to 2 years' fixed imprisonment commencing 19 October 2010 and concluding 18 October 2012.

Key Takeaways

  • Extended joint criminal enterprise can ground a murder conviction even where the offender played no direct role in the fatal violence, provided the offender contemplated that a co-offender might form the intention to inflict grievous bodily harm.
  • Supplying a single item (here, a jerry can) used by co-offenders to commit arson is sufficient to establish accessorial liability for that offence.
  • Objective criminality for murder can be assessed as the lowest within the offence even where death results, where the primary responsibility for the killing lies with co-offenders rather than the convicted person.
  • Significant subjective circumstances, including childhood trauma, cognitive impairment, mental illness, and drug dependency, are relevant to both the assessment of culpability and the identification of special circumstances affecting the parole ratio.
  • Under the Crimes (Sentencing Procedure) Act 1999, special circumstances may be found where a longer supervision period on parole is necessary to address rehabilitation needs, permitting a departure from the standard non-parole to head sentence ratio.

Legislation and Cases Referenced

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

Cases
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465