AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 23 April 2024

R v Smith

[2024] NSWSC 437

Homicide
CRIME SENTENCE MURDER GUILTY VERDICT BY JURY WHERE JURY REJECTED DEFENCE OF SELF DEFENCE

Citation: R v Smith [2024] NSWSC 437
Court: Supreme Court of New South Wales
Date: 23 April 2024
Judge: McNaughton J

Background

The offender fatally stabbed the deceased in Jesmond, New South Wales, on 6 January 2022. Both men had been in a relationship at various times with the same woman (referred to by a pseudonym to protect her children's identities). The animosity between them arose from uncertainty and deception surrounding the paternity of her child, as well as their overlapping relationships with her.

The offender presented himself to police on 12 January 2022 and admitted to the stabbing, claiming self-defence. A jury trial was held in the Supreme Court in Newcastle in September 2023. The only live issue at trial was whether the stabbing occurred in self-defence. The jury rejected that claim and returned a guilty verdict on 12 September 2023.

The sentencing hearing was held on 22 March 2024. McNaughton J delivered sentence on 23 April 2024.

  • Whether a life sentence was warranted under s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • The appropriate head sentence and non-parole period for murder, having regard to the standard non-parole period of 20 years under s 54A
  • The objective seriousness of the offending, including the absence of an intention to kill
  • Whether mitigating factors, including significant pre-trial disclosure and cooperation, justified any reduction in sentence
  • The relevance of the offender's background, including substance abuse and exposure to violence, to the sentencing exercise

Decision

McNaughton J was not satisfied that a life sentence was appropriate. The Crown did not press for one, and his Honour found that the level of culpability, while serious, did not reach the extreme threshold required under s 61 of the Sentencing Act.

The offending arose from a background of sustained mutual animosity, disputed paternity, and personal grievance. Although no witness saw the stabbing itself, the jury's verdict required findings consistent with guilt of murder. His Honour found that the offender did not intend to kill the deceased, which bore on the assessment of objective seriousness. The fatal stab wound was to the front upper right side of the chest.

A significant discount was applied to reflect the offender's pre-trial conduct. The parties agreed to an extensive Agreed Facts document under s 191 of the Evidence Act 1995 (NSW), which narrowed the trial to the single issue of self-defence and avoided the calling of numerous witnesses. This facilitated the administration of justice and attracted a discount under s 22A of the Sentencing Act. His Honour also took into account the offender's background of substance abuse and exposure to violence when assessing his personal circumstances and moral culpability.

Applying the standard non-parole period of 20 years as a guidepost alongside the maximum penalty of life imprisonment, McNaughton J imposed a total sentence of 20 years with a non-parole period of 15 years, commencing on 12 January 2022 (the date the offender surrendered to police).

Orders Made

  • The offender was sentenced to 20 years' imprisonment for the murder of the deceased.
  • A non-parole period of 15 years was set, commencing 12 January 2022 and ending 11 January 2037.
  • An additional term of 5 years was imposed, commencing 12 January 2037 and ending 11 January 2042.
  • The offender was advised of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW) to his offence, as required by s 25C of that Act.
  • Two sequences on the s 166 Criminal Procedure Act 1986 (NSW) Certificate were remitted to the Local Court at Newcastle on 22 May 2024.

Key Takeaways

  • A total sentence of 20 years with a 15-year non-parole period was imposed for murder where there was no intention to kill, a jury rejected self-defence, and the offending arose from a sustained personal dispute between the parties.
  • The standard non-parole period of 20 years under s 54A of the Sentencing Act functions as a legislative guidepost alongside the maximum penalty, rather than a fixed benchmark, requiring the court to weigh all relevant sentencing factors: Muldrock v The Queen (2011) 244 CLR 120.
  • Extensive pre-trial cooperation through an Agreed Facts document under s 191 of the Evidence Act 1995, which narrowed the issues at trial and reduced the number of witnesses required, qualified as facilitating the administration of justice for the purposes of s 22A of the Sentencing Act.
  • Where findings of fact at sentencing are adverse to the offender, the court must be satisfied beyond reasonable doubt; where findings are favourable to the offender, the balance of probabilities standard applies.
  • Murder constitutes a "serious violence offence" under s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW), triggering an obligation on the sentencing court to advise the offender of that legislation's existence and potential application.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 19A, 23
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 13, 14
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 30E, 44, 54A, 61
- Criminal Procedure Act 1986 (NSW), s 166
- Evidence Act 1995 (NSW), s 191

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322
- Perkins v R [2018] NSWCCA 62
- Beldon v R [2012] NSWCCA 194
- R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252
- R v Millwood [2021] NSWCCA 2
- R v Archer [2021] NSWSC 1485
- R v Chatimba (No 2) [2021] NSWSC 863
- R v Brooks (No 5) [2017] NSWSC 824
- R v Miller (No 2) [2022] NSWSC 1347
- R v Macdonald [2023] NSWSC 270
- R v NB (Sentence) [2022] NSWSC 1013
- R v Carr [2009] NSWSC 995
- R v Hines (No 3) [2014] NSWSC 1273
- R v Dennis [2018] NSWSC 173
- R v Haydar (No 4) [2017] NSWSC 615
- R v May (No 2) [2016] NSWSC 1070