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Supreme Court 14 November 2013

R v Steven John Smith

[2013] NSWSC 1723

Assault & violenceHomicideTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING MURDER ROBBERY HOME INVASION OFFENSIVE WEAPON

Citation: R v Steven John Smith [2013] NSWSC 1723
Court: Supreme Court of New South Wales
Date: 14 November 2013
Judge: Barr AJ

Background

The offender pleaded guilty to the murder of a 75-year-old man and two counts of aggravated robbery arising from separate home invasions committed within days of each other in November 2010, in and around Kempsey. Both offences were committed while the offender was on parole, and both involved multiple offenders acting together.

In the first incident, the offender and two others broke into the home of an elderly couple, armed themselves with a knife and axe handle found inside the house, beat the husband and bound him, and stole car keys, bank cards and cash. The offender drove the wife to an ATM and forced her to withdraw $800, warning her not to contact police.

Days later, the same group broke into the home of an elderly man who lived alone, attacked him with fists and makeshift weapons, and demanded he open a safe. He refused and was left gravely injured and unconscious. He died in hospital eight days later. The cause of death was craniofacial trauma with brain bleeding, consistent with a severe, sustained assault to the face, head and neck.

  • What was the appropriate sentence for murder committed during a home invasion by an offender who was on parole at the time?
  • What weight should be given to aggravating features, including the victims' vulnerability, the offending occurring in the victims' homes, and the commission of offences in company while armed?
  • What mitigating weight, if any, should be given to the offender's delayed guilty plea, low verbal intelligence, history of drug addiction, Aboriginal background, childhood disadvantage, and the influence of an older co-offender?
  • How should the sentences for the robbery and murder offences be structured and accumulated against the offender's existing sentence?

Decision

Barr AJ identified several significant aggravating factors across both offences. The victims were elderly and vulnerable. The offences occurred in the victims' own homes. Both incidents were committed in company and involved offensive weapons. The offences were committed while the offender was on parole. The murder victim was subjected to a prolonged and brutal assault.

The court accepted a number of mitigating factors, though it assessed their weight carefully. The offender's guilty plea attracted a discount, albeit a reduced one given it was entered late. His history of severe childhood disadvantage, exposure to violence, removal from his parents, and the dominant influence of his older cousin Richard Smith were accepted as bearing on his moral culpability. However, the court declined to find that he was simply led astray: the evidence of his subservience to Richard Smith was given some weight, but the court noted it came largely from the offender himself.

The offender's very low verbal intelligence (in the bottom one percentile) and his severe heroin addiction were accepted as genuine mitigating circumstances. His Aboriginal background and the associated disadvantages of his upbringing were also taken into account. The court found that the offender had expressed some remorse, including a statement to the victim's wife during the robbery itself and attempts to clear the dying man's airway. The court, however, could not conclude there were reasonable prospects of rehabilitation, given the length and pattern of his criminal history and the risk of recidivism.

On sentence structure, Barr AJ accumulated the sentences on the expiry of the non-parole period of the offender's most recent District Court sentence, with the robbery sentences running concurrently with each other and the murder sentence commencing after those had been partly served.

Orders Made

  • For each count of aggravated robbery: imprisonment for eight years, sentences concurrent, commencing 8 August 2013, with a non-parole period of six years expiring 7 August 2019.
  • For murder: imprisonment for twenty years, commencing 8 August 2016 and expiring 7 August 2036, with a non-parole period of fourteen years expiring 7 August 2030.
  • Earliest eligible parole date: 7 August 2030.

Key Takeaways

  • Committing serious offences while on parole is a statutory aggravating factor, and the Supreme Court here structured accumulation of sentences to reflect that the offender was already serving a sentence when the present offences were committed.
  • Vulnerability of victims and the fact that offences occurred in the victims' homes are significant aggravating considerations in sentencing for home invasion offences.
  • A delayed guilty plea still attracts a discount, but the reduction is less than it would be for an early plea, reflecting the limited utilitarian benefit to the justice system.
  • Low verbal intelligence and severe drug addiction, while accepted as mitigating circumstances bearing on moral culpability, do not automatically generate a finding of poor suitability for general deterrence as a sentencing purpose.
  • Childhood disadvantage, including an upbringing in circumstances of alcohol abuse and violence and the disproportionate influence of an older relative, can reduce an offender's moral culpability without wholly excusing the conduct, particularly where the pattern of offending is entrenched over many years.

Legislation and Cases Referenced

No specific legislation or cases were cited in the provided text of the judgment.