Citation: R v Smith (No 2) [2023] NSWSC 435
Court: Supreme Court of New South Wales
Date: 28 April 2023
Judge(s): Ierace J
Background
The offender, a 46-year-old woman, was convicted by jury of murdering a 77-year-old retired solicitor at his South Coogee apartment sometime between 17 and 21 December 2020. The Crown's circumstantial case was that the offender, having spent time drinking with the deceased on 17 December, returned to his apartment and beat him to death with a frying pan. She then stole his bank cards and Opal card, passing the bank cards to a recent acquaintance who used them for purchases and ATM withdrawals.
The deceased was described in evidence as a frail, genial and generous man with a wide circle of friends in his local area. He had been in declining health in the months before his death. The offender lived approximately 50 metres from his apartment block.
The sentencing hearing took place on 3 February 2023. The court was asked to determine the appropriate term of imprisonment, having regard to a range of factors including the offender's severe childhood trauma, mental health diagnoses, absence of remorse, and uncertain prospects of rehabilitation.
Legal Issues
- What was the appropriate head sentence and non-parole period for the murder, given the standard non-parole period of 20 years applicable in the circumstances?
- To what extent did the offender's extreme childhood neglect and abuse reduce her moral culpability, consistent with the High Court's approach in Bugmy v The Queen?
- Was there a sufficient nexus between the offender's mental health diagnoses and the commission of the offence?
- Did the offender's mental health and the Bugmy considerations warrant a variation to the standard non-parole period ratio (that is, a longer than usual parole period relative to the head sentence)?
- What weight should be given to the offender's lack of remorse and uncertain prospects of rehabilitation?
- How should the sentence interact with time already served in custody and with a prior sentence already partly served?
Decision
Ierace J imposed a total sentence of 24 years' imprisonment, with a non-parole period of 15 years. The court found that the offence was a serious instance of murder: the deceased was elderly and vulnerable, the attack involved repeated blows with a heavy implement, and the offender subsequently stole from him. No mitigating factors relating to the circumstances of the offence itself were identified.
On the Bugmy principle, the court accepted that the offender had suffered extreme neglect and abuse during childhood and adolescence, and that this diminished her moral culpability in a meaningful way. Consistent with the High Court's reasoning in Bugmy v The Queen, the court treated the deprivation the offender experienced as a factor that reduced, though did not eliminate, the weight of personal deterrence and denunciation in the sentencing calculus. The court also found a causative connection between the offender's mental health diagnoses and those same childhood and adolescent experiences.
The court found no remorse on the offender's part, and assessed her prospects of rehabilitation as uncertain rather than good. These findings informed the structure of the sentence rather than simply its length. The court determined that special circumstances warranted a departure from the standard ratio between the non-parole period and the balance of term, resulting in a relatively longer parole period. This reflected both the Bugmy considerations and the need for extended supervision in the community given the offender's mental health conditions.
The court also took into account that the offender's psoriasis was not well controlled in the prison system, treating this as an onerous condition of incarceration relevant to the non-parole period. The sentence was structured to accommodate a degree of accumulation with a prior sentence the offender had been serving. The court noted that the Crimes (High Risk Offenders) Act 2006 (NSW), s 25C applies to the offender.
Orders Made
- The offender was sentenced to a total term of imprisonment of 24 years, comprising a non-parole period of 15 years and a balance of term of 9 years.
- The sentence was dated to commence on 1 October 2021 and to expire on 30 September 2045.
- The offender will be eligible for release to parole on 30 September 2036.
Key Takeaways
- The Supreme Court applied the Bugmy v The Queen principle to reduce the weight given to personal deterrence and denunciation, accepting that the offender's extreme childhood neglect and abuse diminished her moral culpability, even for a serious murder.
- A causal nexus between mental health diagnoses and the offence, and between those diagnoses and the same childhood experiences underpinning the Bugmy considerations, was treated as a distinct sentencing factor warranting a longer parole period relative to the head sentence.
- Where an offender shows no remorse and rehabilitation prospects are uncertain, those findings may shape the structure of a sentence (including a lengthened parole period to allow for community supervision) rather than simply adding to the total term.
- Onerous conditions of incarceration arising from a medical condition that cannot be adequately managed in the prison environment are a recognised factor in fixing the non-parole period, even where the condition pre-existed custody.
- Under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the provision applied to this offender, a matter noted by the court without further elaboration in the sentencing remarks.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 30E, 61
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes Act 1900 (NSW), ss 33B, 35
Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194