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Court of Criminal Appeal 18 December 2014

Smith v R

[2014] NSWCCA 316

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL ADMISSIBILITY OF "FRESH" EVIDENCE LOW VALUE OF ASSISTANCE NO REDUCTION IN SENTENCE APPROPRIATE SUBJECTIVE CASE ADEQUATELY EVALUATED

Citation: Smith v R [2014] NSWCCA 316
Court: NSW Court of Criminal Appeal
Date: 18 December 2014
Judge(s): Hoeben CJ at CL (principal judgment), Fullerton J and Adamson J (both agreeing)

Background

The applicant pleaded guilty in December 2011 to the gross negligence manslaughter of a six-year-old child and to being an accessory after the fact to the child's murder. The child was the daughter of the applicant's de facto partner, who was responsible for the fatal injury inflicted on 13 July 2010. The applicant had failed to obtain medical assistance after finding the child unconscious, and then participated in concealing the death, disposing of the body, and providing false accounts to police and the media over a period of months.

Sentence proceedings were heard before Latham J in early 2013. In May 2013, her Honour imposed a fixed term of 7 years for the manslaughter offence and a sentence of 13 years (with a non-parole period of 9 years) for the accessorial offence, producing a total effective sentence of 16 years with a non-parole period of 12 years.

The applicant sought leave to appeal against the sentences on four grounds: that insufficient credit was given for assistance provided to authorities; that the sentencing judge erred in not finding diminished moral culpability arising from the applicant's relationship with the deceased; that the accessorial sentence was manifestly excessive; and that the sentencing judge made a slip in the sentences imposed, resulting in a total sentence higher than intended.

  • Whether the sentencing judge gave adequate weight to assistance provided by the applicant to authorities in connection with his co-offender
  • Whether the sentencing judge erred by failing to find a reduction in moral culpability arising from the applicant's relationship with the deceased child
  • Whether the sentence for accessory after the fact of murder was manifestly excessive
  • Whether the sentencing judge made a numerical slip such that the sentences as imposed did not reflect her Honour's stated intentions

Decision

Assistance to authorities: The Court of Criminal Appeal examined the applicant's claimed assistance to police and prosecutors in proceedings against his co-offender. The Court found the assistance was of low value: the applicant's evidence was ultimately not relied upon at trial and added little to the Crown case. No error was established in the sentencing judge's assessment that the assistance did not warrant a reduction in sentence.

Moral culpability and relationship with the deceased: The applicant argued that his role as a father figure to the deceased, combined with the dominant influence of his co-offender, reduced his moral culpability. The Court found the sentencing judge had adequately considered the applicant's subjective circumstances, including his relationship with the child. No error in the evaluation of moral culpability was made out.

Manifest excess: The Court found the sentence for the accessorial offence was not manifestly excessive, given the gravity of the conduct, which included active concealment of the murder, disposal of the body, misleading police and the public over an extended period, and persistent false denials in media appearances.

The alleged slip: The applicant pointed to an apparent inconsistency between a passage in the sentencing remarks that referred to a "head sentence of twelve years" for the accessorial offence and the formal sentence actually imposed of 13 years (9 years non-parole plus 4 years balance of term). The Court found that the formally imposed sentence of 13 years, when combined with the 7-year fixed term for manslaughter, correctly produced a total of 16 years with a non-parole period of 12 years, consistent with the statutory ratio under section 44 of the Crimes (Sentencing Procedure) Act 1999. The reference to "twelve years" in the remarks was characterised as no more than a slip of expression and no basis for interfering with the sentences as formally imposed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Low-value assistance to authorities, where an offender's evidence is not relied upon at trial and adds little to the Crown's case, does not warrant a reduction in sentence under section 23 of the Crimes (Sentencing Procedure) Act 1999.
  • A passing reference in sentencing remarks to a different head sentence figure does not establish a "slip" in the formal sentence where the individual sentences imposed are consistent with the statutory non-parole ratio and produce a mathematically coherent total effective sentence.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal affirmed that extended concealment of a murder, including disposal of a body, misleading police, and sustained public deception, represents serious criminality justifying a substantial sentence for an accessory after the fact offence.
  • A sentencing judge's evaluation of an offender's subjective circumstances, including personal relationships and the influence of a co-offender, will not be disturbed on appeal merely because a different weight was available; the applicant's case was found to have been adequately considered.
  • Both manslaughter under section 18(1)(b) and being an accessory after the fact to murder under sections 18(1)(a) and 349(1) of the Crimes Act 1900 carry a maximum penalty of 25 years' imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 18(1)(b), 349(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44
- Criminal Appeal Act 1912 (NSW), s 5F(3)

Cases:
- "C" (1994) 75 A Crim R 309
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Kaminic v R [2014] NSWCCA 116
- Khoury v R [2011] NSWCCA 118
- Lowndes v R [1999] HCA 29; 195 CLR 665
- Norrie v R [2008] NSWCCA 185
- R v Fordham (1997) 98 A Crim R 359
- R v Kristi Anne Abrahams [2013] NSWSC 952
- R v Rushby (1977) 1 NSWLR 594
- R v Smith [2013] NSWSC 796
- Rios v R [2012] NSWCCA 8