Citation: R v Smith [2022] NSWSC 269
Court: Supreme Court of New South Wales
Date: 16 March 2022
Judge(s): Rothman J
Background
The offender attended the Cessnock home of the deceased on the night of 25 September 2018, intending to collect his partner's personal belongings. A confrontation ensued, and the offender used his motor vehicle to pin the deceased against the garage, causing fatal injuries. The deceased was 36 years old at the time.
The events unfolded against a backdrop of a deteriorating relationship between the deceased and the offender's partner, Ms Armstrong. The deceased had been aggressive toward Ms Armstrong and her friend on previous occasions, and on the night in question had refused to allow Ms Armstrong to collect her belongings unless a debt was repaid. The offender drove to the premises with a trailer attached to his vehicle to assist with collecting those belongings.
The Crown initially charged the offender with murder. On 21 February 2022, the indictment was amended to include a charge of manslaughter, and the offender pleaded not guilty to murder but guilty to manslaughter. The Crown accepted the manslaughter plea in full satisfaction of the indictment.
Legal Issues
- The appropriate head sentence and non-parole period for manslaughter by unlawful and dangerous act, given the wide range of circumstances and culpability levels that category of offence encompasses
- The relevance of non-exculpatory provocation as a mitigating factor in sentencing
- The weight to be given to the offender's mental health issues and background disadvantage, including Bugmy factors (deprivation and its lasting effects on moral culpability)
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio
- The effect of accumulation with existing sentences on the structure of the non-parole period for this offence
Decision
Rothman J sentenced the offender for manslaughter by unlawful and dangerous act, emphasising that every form of manslaughter involves the felonious taking of a human life and that this starting point anchors the assessment of objective gravity. His Honour noted the inherent difficulty in sentencing for manslaughter, given the breadth of circumstances that can give rise to the offence and the correspondingly wide range of culpability.
The court took into account non-exculpatory provocation as a mitigating factor, noting that the offender had attended the premises for a lawful purpose and that the deceased's conduct contributed to the circumstances of the confrontation, without excusing the offender's actions. The offender's mental health issues and background disadvantage were also considered as mitigating factors under the principles in Bugmy v The Queen, which recognise that severe childhood deprivation can affect an offender's capacity for self-regulation and reduce moral culpability, even where that background does not diminish with repeated offending.
Special circumstances were found to exist, warranting a departure from the standard ratio between non-parole period and head sentence. The court identified the need for an extended period of supervised parole, particularly in light of a psychologist's report recommending at least two years of supervision following a rehabilitation programme. The effect of accumulation with two prior sentences, each of which had also reflected special circumstances, further influenced the structure of the non-parole period for this offence.
Orders Made
- The offender was convicted of the unlawful killing of Ewan James Sams at Cessnock on 25 September 2018.
- A head sentence of 8 years and 6 months was imposed, commencing 17 August 2021 and concluding 16 February 2030.
- A non-parole period of 3 years and 8 months was set, commencing 17 August 2021 and concluding 16 April 2025, reflecting the effect of accumulation with existing sentences.
- The offender is first eligible for release on parole on 16 April 2025.
- The remarks on sentence and the psychological report of Dr Derek G Gilligan (dated 6 October 2021) were directed to be provided to Corrective Services.
Key Takeaways
- Manslaughter by unlawful and dangerous act encompasses an exceptionally wide range of circumstances and degrees of culpability, making it impossible to identify a fixed sentencing tariff; the felonious taking of a human life remains the mandatory starting point for assessing objective gravity.
- Non-exculpatory provocation, while not reducing the offence or excusing the conduct, operates as a mitigating factor in sentencing where the deceased's behaviour contributed to the circumstances leading to the killing.
- Under the principles in Bugmy v The Queen, severe background deprivation and its lasting effects on an offender's capacity for self-regulation can reduce moral culpability and must be weighed in sentencing, even where the offender has prior convictions.
- Special circumstances justifying an extended parole period were established by the offender's mental health needs and the psychologist's recommendation for at least two years of post-rehabilitation supervision, reflecting the court's focus on rehabilitation and community safety.
- Accumulation of sentences across multiple proceedings materially affects the non-parole period referable to any individual offence; the resulting non-parole period for this manslaughter conviction was lower than it would otherwise have been precisely because of that accumulation effect.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22A, 25D
- Criminal Procedure Act 1986 (NSW), s 153
Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unreported)