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Supreme Court 15 July 2021

R v Smith

[2021] NSWSC 825

Assault & violence
CRIMINAL LAW SENTENCE JURY VERDICT FOLLOWING TRIAL FOR MURDER ALTERNATIVE VERDICT CRIMINAL LAW SENTENCE PAROLE PERIOD

Citation: R v Smith [2021] NSWSC 825
Court: Supreme Court of New South Wales
Date: 15 July 2021
Judge(s): Harrison J

Background

The offender, a 35-year-old man of Aboriginal and European Australian descent, was tried for the murder of a man he met through a close mutual friend. On the evening of 4 January 2019 and into the early hours of 5 January 2019, the offender, the deceased, and others spent many hours drinking alcohol at a home in South Grafton. During that time, the deceased became jealous and aggressive toward the offender, accusing him of a romantic interest in the mutual friend.

In the early hours of 5 January 2019, the argument escalated. The offender, believing the deceased was threatening him and reaching for a weapon, armed himself with a kitchen knife. In the confrontation that followed, the deceased sustained two stab wounds, not by deliberate plunging of the blade but by moving toward the knife on two occasions. The deceased later died in hospital from blood loss and multi-organ failure.

The offender was tried on a charge of murder. The jury acquitted him of murder but returned a guilty verdict on the alternative count of assault occasioning death while intoxicated, under section 25A(2) of the Crimes Act 1900 (NSW).

  • What factual basis, consistent with the jury's verdict, should underpin the sentencing exercise?
  • Whether the Crown's submission that the court could find the offender had deliberately stabbed the deceased twice was consistent with the jury's verdict.
  • How the mandatory minimum non-parole period of 8 years under the Crimes Act affected the court's ability to give weight to the offender's mental illness and other subjective factors.

Decision

Harrison J carefully analysed what the jury's verdict necessarily implied. The jury's rejection of murder, manslaughter by excessive self-defence, and manslaughter as alternatives meant that the jury was not satisfied the offender had deliberately stabbed the deceased, nor that he had performed an act that was both unlawful and dangerous. The court rejected the Crown's submission that a finding of deliberate stabbing remained available at sentence, reasoning that any deliberate stabbing would necessarily have constituted an unlawful and dangerous act, which the verdict had foreclosed.

On the facts available for sentence, Harrison J found that the offender perceived a genuine threat from the deceased and that his perception was significantly shaped by his mental illness. The court accepted on the balance of probabilities that the deceased made threatening statements, but rejected the offender's account that the deceased was ever actually holding a metal pole.

The court acknowledged the offender's significant mental health history, his psychiatric diagnosis, disrupted upbringing, and other mitigating features. Harrison J noted expressly that, absent the mandatory minimum non-parole period of 8 years prescribed by the legislation, a different and more lenient sentence would have been imposed. The mandatory minimum was described as significantly inhibiting the court's ability to give proper weight to the offender's mental illness.

Orders Made

  • The offender was sentenced to imprisonment for 10 years and 8 months, commencing 5 January 2019 and expiring 4 September 2029.
  • A non-parole period of 8 years was set, expiring 4 January 2027.
  • The earliest date of eligibility for release on parole was fixed as 5 January 2027.

Key Takeaways

  • A jury's verdict of guilty on an alternative count of assault occasioning death while intoxicated, combined with an acquittal on murder and manslaughter, necessarily constrains what factual findings a sentencing court may make. A finding of deliberate stabbing was unavailable because it would have been inconsistent with the jury's rejection of manslaughter.
  • Under section 25A(2) of the Crimes Act 1900 (NSW), assault occasioning death while intoxicated carries a mandatory minimum non-parole period, which Parliament clearly intended to operate as a significant constraint on sentencing discretion.
  • The sentencing court stated openly that the mandatory minimum non-parole period of 8 years prevented it from adequately reflecting the offender's mental illness in the sentence imposed, and that a lesser sentence would have been appropriate but for the statutory prescription.
  • Consistent with Karim v R (2013) 83 NSWLR 268, mandatory minimum sentencing regimes can produce considerable injustice in individual cases, even where the sentencing court would otherwise have exercised its discretion differently.
  • A perceived threat from a victim, where significantly shaped by the offender's mental state rather than an objectively accurate reading of events, may still be accepted as a genuine subjective factor in sentencing, even if the threat cannot be fully established on the evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 25A and 25B (assault occasioning death, including while intoxicated; mandatory minimum sentencing provisions)

Cases:
- Karim v R (2013) 83 NSWLR 268; [2013] NSWCCA 23 (mandatory minimums constraining sentencing discretion and the potential for injustice)