Supreme Court New South Wales

• Medium Neutral Citation: R v Steven John Smith [2013] NSWSC 1723
• Hearing dates: 1, 2 October 2013; 13 November 2013
• Decision date: 14 November 2013
• Jurisdiction: Common Law - Criminal
• Before: Barr AJ

Decision

Sentenced to a term of eight years imprisonment for robbery with a non-parole period of six years, commencing on 8 August 2013 and expiring on 7 August 2019. Sentenced to a term of twenty years imprisonment for murder with a non-parole period of fourteen years, commencing 8 August 2016 and expiring 7 August 2036. The sentences are to be served concurrently. The earliest day upon which the offender will be eligible for release on parole is 7 August 2030.

• Catchwords: CRIMINAL LAW - sentencing - murder - robbery - home invasion - offensive weapon - delayed guilty plea - discounted sentence - offences committed on parole - offences committed in company - aggravated by fact that victims were vulnerable and offences occurred in victims home - mitigating factors - remorse - low intelligence - drug addiction - Aboriginal - victims impact statement
• Category: Sentence
• Parties: Regina (Crown); Steven John Smith (Defendant)
• Representation: Counsel: Ms J Baly (Crown); Mr D Carroll (Defendant); Solicitors: Solicitor for Public Prosecutions (Crown); Shir Danieli Lawyers (Offender)
• File Number(s): 2012/201460
• Publication restriction: None

Judgment

1 The offender Steven John Smith has pleaded guilty of three offences, namely that:

• On 26 November 2010 at Kempsey he murdered Stanley Bruce Davies;

• On or about 18 November 2010 at Dondingalong while in the company of two others and armed with offensive weapons he robbed John and Miriam Cowles of car keys and credit cards; and

• At the same time and place while in the same company and similarly armed he robbed Miriam Cowles of a sum of money.

THE FACTS

2 An agreed statement of facts was received into evidence. The following account is adapted from the statement. At 11.30pm on 18 November 2010 the offender, his cousin Richard Keith Smith and a colleague broke and entered a house in a suburb of Kempsey. The occupants, Mr and Mrs Cowles, were at home. The three attackers took up a knife and an axe handle that they found in the house. One of them laid into Mr Cowles with the axe handle. They asked Mr and Mrs Cowles where their safe was and they said that they did not have a safe. They stole car keys and bank cards. The offender took Mrs Cowles in her car to an automatic teller machine and made her withdraw $800. He stole the money from her. On the way home he warned her that if she told the police they would come back for her. He told her that he was sorry for robbing her and that he intended to use the money to buy drugs. In the meantime the others bound Mr Cowles with rope. The three drove off in Mrs Cowles' car taking with them the money and the other things they had stolen.

3 Mr Cowles was 64 years old. As a result of the beating he received he was badly bruised and shaken and put in fear. Mrs Cowles, who was 66 years old, sustained no physical injuries but she, too, was put in fear. Fortunately her car was recovered. A victim impact statement signed by Mrs Cowles shows that after the attack she and Mr Cowles became nervous, fearful and vigilant. Not surprisingly, their enjoyment of life was affected.

4 Mr Stanley Bruce Davies lived alone at his house in Kempsey. He was 75 years old. He had safes and other secure storage containers in the house. He kept a coin collection there. At about midnight on the same night the offender, Richard Smith and a third man, Raymond Kennedy, broke into Mr Davies' house intending to steal. Richard Smith cut himself on entry and bled there. They attacked Mr Davies with fists and makeshift weapons they picked up inside the house. They demanded that Mr Davies open his safe or tell them the combination. He did neither. The attackers moved to various parts of the house assaulting Mr Davies and forcing open or attempting to force open safes and other secure containers.

5 They left Mr Davies helpless and grievously injured in the house. He lay there unconscious until discovered on the following evening. He was covered in blood and his head was severely swollen. There were traces of his blood throughout the house. Ambulance officers took him to hospital in Newcastle and attempts were made to resuscitate him. Sadly, he failed to respond. On 26 November 2010 staff turned off his life support equipment and he died.

6 Doctor Cala examined the deceased's body post mortem on 30 November 2010. He determined the cause of death as craniofacial trauma with bleeding of the face and the brain. Each zygoma was fractured. The hyoid bone was fractured. There were lacerations behind the right ear. The injuries to the face and head including the brain were consistent with a severe violent and sustained attack on the face, head and neck. There was a compression injury to the neck. The torso and upper limbs bore injuries consistent with assault. On the back were patterned injuries that might have been inflicted with a tyre lever, a shaft or a golf club. The upper arms were bruised. The fingers were bruised and abraded.

7 Relying on the results of DNA tests of blood found at the house, police suspected that Richard Smith was responsible. They went to his house and arrested him. Others were present, including the offender and Kennedy.

8 In mid December 2010 the offender was heard to say that:

We just wanted money,

The other boys hit him,

Someone had jumped on his head.

9 In the same conversation the offender said that he had tried to clear the man's airway because he was frothing at the mouth.

10 Ms Anita Duffy, psychologist, interviewed the offender. Her report came into evidence. Some of what the offender told Ms Duffy about himself was uncontroversial. The offender was born in 1987. He is now 26 years old. His parents were both Aboriginal people from the Dunghutti group. Both were heavy drinkers and early on the offender witnessed arguments they had when they were drinking. Sometimes he witnessed violent acts. He was removed into the custody of his grandmother when he was about three years old. Also in his grandmother's household were members of the wider family, including an aunt and her son Richard Smith. He was five years older than the offender. From then on the offender and Richard Smith saw a lot of each other. The offender was part of his grandmother's household until well into his teenage years. He entered into a life of dependence on alcohol and other drugs with the commission of the offences that such a life demands.

11 He left high school during Year 9. He has had no trade training. He has not worked.

12 The offender began to drink heavily and to take cannabis in his mid-teens. That led him inevitably into other trouble. In 2002 he was dealt with in the Children's Court for breaking entering and stealing. There was a control order and a bond. That experience was repeated a number of times during 2003 and 2004. In 2005 the offender was committed to custody for the first time in an adult prison. There was a non-parole period of four months. There followed a short sentence with a non-parole period of one month.

13 The offender graduated to other illegal drugs and his principal drug of choice became heroin. All his offences were property offences of the kind normally associated with the abuse of alcohol and other drugs. They were or were mostly committed in company.

14 They became more serious. In 2007 the offender was sentenced in the District Court to imprisonment for three years and nine months for aggravated breaking entering and committing a serious indictable offence. The non-parole period was two years.

15 The present offences were committing during the ensuing period of parole. In May 2012 the offender was sentenced in the District Court for aggravated breaking and entering in company to a sentence of about three years and four months. The non-parole expired on 7 August 2013 but the head sentence is not due to expire until September next year.

16 The summary of all this that during the period of about eight years beginning late in 2005 the offender has spent non-parole periods in custody totalling four years and eight months. In addition he has been held in custody on remand, bail refused, for more than a year.

17 Ms Duffy tested the offender. She noticed as she spoke to him that he found it very difficult to understand what she was saying. She had to resort to very simple language. The offender displayed a limited vocabulary. His test results bore out Ms Duffy's impression. His verbal intelligence was in the lowest percentile. Ninety-nine percent of the population would perform better on the test than he. Remarkably however on the non-verbal intelligence test the offender scored better than 79% of the population. In Ms Duffy's view that meant that he could undertake technical courses to certificate and even diploma level. She thought that he should be encouraged to undertake information technology and general education courses in technology. She noted the offender's strong intent to do so and thought that would assist him in finding regular employment.

18 The offender gave Ms Duffy a detailed account of his life in his grandmother's house. He said something of the movement in and out of the household of his cousin Richard Smith. He said that he recalled always looking up to his cousin and copying him like a role model. Of course he and Richard Smith were separated from time to time for significant periods when either was or both were in custody. The offender attributed a return to the use of heroin following a period of abstinence to the return of Richard Smith to the family after service of a sentence. He told Ms Duffy, I think referring to his early life in the household, that he would follow Richard round and do whatever he asked him. Even in adulthood he said he continued to have this subservient approach. Even though Richard had hit him when young he always looked up to him and described him as a role model.

19 Statements like these were relied on as mitigating the offender's criminality. The submission was that he was a man of low intelligence led on by a strong-minded relative.

20 The only evidence to this effect came from Ms Duffy, who repeated what the offender had told her. The offender did not give evidence.

21 The crown submitted that notwithstanding his low verbal standard of intelligence as revealed by the test results, the offender was able to make his own choices.

22 The only other recorded utterance of the offender about Richard Smith was in an electronic record of a conversation he had with friends. He said this. The record shows that three people were speaking, one with the initials DH, one with the initials CJ and the offender:

DH: Mate I'm telling you. Cunts look at Poochie cause he's quiet like, he stands there quiet, does his own thing.

CJ: That's the cunts you always - that's what my mum says.

DH: Yeah I'm telling you.

CJ: Watch the quiet cunts cause they're always fucking loopy in the head. That's what they're standing there thinking, what they're doing, what they're going to do next.

DH: See what he told me mate. What he told me is full on. He don't give a fuck man. If he had a gun he'd dead set shoot you... fuckin.

CJ: (Inaudible.)

This offender: Yeah he's off his cunt that Pooch. I'd hate to get on the wrong side of the cunt.

23 I am prepared to accept that the offender knew Richard Smith well and even admired him, but I am not prepared to accept that Richard Smith led the offender into doing anything he was not ready to do. By the time of these attacks the offender was using heroin again and needed money to buy his next dose.

24 Ms Duffy relayed the offender's account of the attack in these words:

In relation to the murder charge Mr Smith stated that he participated in it because his cousin Richard needed money for drugs. Mr Smith was 'off my face' on heroin at the time and agreed with Richard's idea to break into the place. Mr Smith said when they found that the man was at home he thought they would leave but unfortunately the other two co-offenders attacked the man demanding he open the safe. Mr Smith kept watch ducking in and out of the house. When he found the man unconscious and gasping for air he tried to clear his airways and resuscitate him. He had no role in the assault and eventual death of the man but acknowledged that he did nothing to stop his co-offenders from hitting him. He was alarmed by the extent of the man's injuries and wanted to call an ambulance but his cousin Richard threatened him saying "the only person to get in the ambulance will be you".

25 On the other hand, things the offender said to colleagues on an earlier occasion are, I think, more likely to be true. In a conversation recorded by listening device he said this. SS refers to the offender:

CJ: So what happened, did youse end up getting anything that night?

SS: Nothing bro.

CJ: What, he didn't give up nothing?

SS: No fucking.

DH: 400, hey you said, hey?

SS(as said): Nothing.

SS(as said): Oh that dead guy, yeah.

SS(as said): Oh yeah - I - the dead guy.

CJ: So that's it? You're looking at a big whack for nothing, dead. Don't look like fuck. You too you little cunt.

SS: He wouldn't give nothing up like he just kicked up. I don't know. We said kick you in the head or something. Now you listen to me, he just wouldn't buckle though.

CJ: Why, what happened? What did you go there for? What was there? Did you know what was there?

SS: The safe. We were going to do the safe.

CJ: And what, there was money in it?

SS: Yeah there was money in the safe.

CJ: How much - like he went before didn't he I heard?

SS: Yeah like the boys had done it before but they just couldn't get it like, the safe was Fort Knox it just wouldn't move. We had fuckin anything, tried to bust it open, just wouldn't bust open you know.

CJ: And then what fuckin?

SS: Don't know. I just tried everything but I just couldn't open the cunt.

SS(as said): It was like all little safety deposit boxes and everything.

DH: You know like you go to the post office?

CJ: Yeah.

DH: And you've got your little deposit boxes all little squares.

CJ: Yeah.

DH: Like that.

CJ: How big was the cunt?

SS: It was probably from about edge to edge about 5 or 6 across there, 6 there.

SS(as said): Yeah but like it was like a bundle like that there. It was like all twenties. Brand new straight out of the bank, you know all twenties.

DH: He would have been loaded that cunt.

SS: Five cent pieces like a tin of notes, 10 cents, 20 cents.

CJ: What did he do?

SS: Don't know - don't know what he does.

CJ: I don't know.

SS: Yeah Poochie was just going on with him.

DH: Fuckin Poochie was going on with him.

SS: The boys were off their cunts. I was only smoking that day.

CJ: What happened?

SS: Fuckin I went to the back door. Old fellow was sitting down. Old bloke's just like fuckin like the door was locked first and we made a bit of a noise and the old bloke came out and we go up and we go 'open the door up' hassling, bang just ripping into it, smashing it, 'just open up'. Plus I think he cut himself I think old mate, stabbed him or something you know.

Someone said: Poochie?

SS: Yeah just picked him up then come up here. So we took him up to the room 'open up, open it up, open up we need money mate'. He wouldn't do anything. He goes whack - whack him on the thing, you know.

DH: I'm telling you, you listen that's nothing but.

SS: Whack Poochie goes, listen bro.

DH: You should see how made this cunt is bro.

SS: That wouldn't work so he held a knife under there.

CJ: Butcher knife?

SS: No like - like one of them.

DH: Yeah one of them fuckin meat cleavers.

CJ: Oh yeah, yeah, yeah.

SS: Yeah they were slapping him you know, slapping him.

CJ: Oh cutting him or just slapping him?

SS: Yeah slapping him first and he wouldn't listen, said 'open that here', wouldn't listen.

CJ: Who?

SS: Ray, Ray, Ray - then fuckin Pooch yeah, fuckin I don't know, cunt wouldn't listen, kept going and going and going and going.

CJ: What how bad was the cut?

SS: Oh.

DH: Decent hey?

SS: Oh probably about that far in or something you know.

SS: The old cunt, he was a stubborn cunt, he just wouldn't...

CJ: What did he do after that?

SS: What?

CJ: What did he do when you whacked him?

SS: Went 'ah, ah, ah, fuck you know then they're fuckin....lower....their....voice, fuck this, done it all for nothing. I kept trying, kept going outside to have a look, make sure no cunts was there. The other boys are in there, they've got him, one's there, one's there, whack, whack him again.

CJ: Whack him on the head?

SS: Yeah whacking him on the head.

CJ: What he's not going to tell you then?

SS: That's what I was trying to tell him but they were off their cunts drunk, smashed, blind drunk.

CJ: And what they wouldn't fuckin.

M: That's what I mean, silly cunt whacking people around the head.

CJ: You just whack them in the body mate so you don't hurt them.

DH: Poochie jumped off a bench hey.

SS: Oh yeah like, like anyway.

SS: Like chair there, then like a cabinet and another cabinet up there.

DH: About as high as the fridge.

SS: About as high as the fridge, Pooch ended up off the ground rah, rah, rah, rah, whack. A few more strokes to the head. After that breathing air, just here and there you know.

CJ: What, having a fit?

SS: No just like choking on.

DH: Choking on blood and froth.

SS: Blood and froth and spew and that.

CJ: What youse do?

SS: I got him down and I tried to clear his airways and that you know. Yeah, I tried to clear his airways, just I don't know.

CJ: How long were you there for?

SS: About half an hour, 45 minutes. I was even bored when we came out.

26 Nowhere in any of these statements did the offender say that he had assaulted Mr Davies. I accept that there is no evidence that he did. What the offender told his friends, however, shows that he played a much larger role than he described to Ms Duffy. I do not accept that he thought that when they found Mr Davies at home the others would leave. The statements:

"We said kick you in the head or something."

"We were going to do the safe."

"Just tried everything but I just couldn't open.

"We go open the door up hassling bang, just ripping into it, smashing it just open up", and

"So we took him up to the room, open it up, open up we need money mate",

show that the offender was very much engaged with the other two in threatening Mr Davies that he would be assaulted and trying to rob him. The extract shows also that the offender was keeping a lookout, but the statement "I kept trying, kept going outside to have a look" shows that he was doing far more than keeping a lookout, contrary to the thrust of what he told Ms Duffy.

27 As the very description of his activities at the Cowles house shows, his role was central to the activities of the attackers on that occasion.

28 Mr Lange submitted that the deprivation suffered by the offender in his formative years, particularly having regard to his Aboriginality, mitigated his criminality. Mr Lange pointed to the circumstances obtaining up to the time when the offender's mother gave him and his sister into the care of his grandmother. He pointed to the conditions existing in the offender's grandmother's household and the violence done there to the offender.

29 I accept that until he was three years old, the offender was exposed to the argumentative fights of his drunken parents and that occasionally he witnessed violence. The evidence of conditions in his grandmother's house however is less clear.

30 The offender's mother, Mrs Rosemary Smith, gave evidence. She said that she had thought it better for the offender and his sister to live in her mother's house. She was reluctant, however, to accept that as things turned out the offender had been better off there. I received the impression that she was not well acquainted with his life there. She did not say that she had herself witnessed circumstances in the house. She seemed to know nothing of his progress through school. She reported his statement that one of his uncles had hit him but she did not know the detail of it.

31 No evidence was adduced from anyone with direct knowledge of conditions in the offender's grandmother's household while the offender was living there. I accept that Richard Smith lived there. He used heroin, was violent and had a poor criminal record. It may also be accepted, as Mrs Smith told the Court, that two other of her sons have a criminal record, but it does not appear that they resided in or were connected with the household where the offender was living.

32 Ms Duffy is of the opinion that the offender's exposure to violence in his early years has had a profound effect on his emotional development. In her opinion, his social learning was shaped by his cousins and the result was that he became involved in criminal activity from his early years and always in their company.

33 I think that the account given to Ms Duffy by the offender overstated the position. While I accept that his exposure to violence in his early years might have affected his emotional development, I do not accept that it was profound or long-lasting.

34 While I accept that his cousins contributed to his social learning, I do not accept the implication in Ms Duffy's opinion that it was only they who shaped his social learning. The offender attended primary school and high school until late in year 9. Presumably, he was there exposed to other influences. There is no evidence about them. The Court has been asked to determine these important matters on an opinion based only on the offender's untestable assertions of fact. It is possible that the offender was telling Ms Duffy the truth, but I am not confident that he was.

35 I accept the offender's assertion to Ms Duffy that he tried to clear Mr Davies' airways. The evidence of the recorded conversation shows that he told his colleagues something of the kind and I think that he was there trying to tell the truth.

36 I do not however accept that the offender would have called but did not call an ambulance for Mr Davies because he was dissuaded by Richard Smith from doing so. There is no acceptable evidence to support that assertion. The fact that he did not alert the authorities during the long time before Mr Davies' family discovered him speaks against a desire to do so.

37 Objectively the attack on Mr Davies was vicious. It was carried out in company. Mr Davies was alone and helpless in his own home. He was easily overpowered. There was nothing complicated about the plan but the participants well knew what the object was. They would join in breaking, entering and stealing what they could find.

38 They threatened to assault Mr Davies in an attempt to achieve their object. They realised that he might resist. When he did they persisted and gave effect to their threats. They did not go armed to the house but used objects they found there to use for weapons. The injuries inflicted on Mr Davies were cruel. He was callously abandoned. The whole procedure took some considerable time, perhaps up to forty-five minutes.

39 I am satisfied that the offender willingly joined in the enterprise. He needed to do so to raise money to buy the drugs he desired. He knew the object of the arrangement was to induce Mr Davies to hand over his money. His role included but was not confined to being a lookout. He joined in threatening Mr Davies with assault. He was present attempting robbery while the others laid into Mr Davies.

40 The attack carried out on Mr and Mrs Cowles was a vicious one, done in company. The victims were helpless in the face of the strong young men they faced in their own home. They were easily overcome. Mr Cowles was beaten. Fortunately, his injuries were not of a permanent kind.

41 Mr and Mrs Cowles were affected in the way I have described. On that occasion, the offender's role was more central than in the attack on Mr Davies. He was present when Mr Cowles was beaten. He alone was responsible for forcing Mrs Cowles to withdraw her money and hand it over, and consequently his telling Mrs Cowles that he was sorry carries no weight. If he had been genuinely sorry he would not have treated her in such a discourteous way and would not have run away with her money.

42 The maximum penalty for murder is imprisonment for life. The standard non parole period is twenty years. I bear those matters in mind. Richard Smith was convicted and sentenced for the murder of Mr Davies. He was sentenced to imprisonment for twenty-two years and eleven months, a period incorporating a non-parole period of seventeen years and two months. He had pleaded guilty at a rather earlier stage of his prosecution than the offender. Schmidt J reduced his sentence on that account by eighteen per cent. Like the offender, Richard Smith was a mature or maturing man with a substantial criminal record.

43 The aggravating features in Richard Smith's case were that the offence was carried out by the use of a weapon in company in the victim's home against an old and therefore vulnerable man and that the offender was at the time on parole.

44 Those aggravating features are present here. The offender pleaded guilty as his trial was due to begin and he is consequently entitled to consideration for the utilitarian value of his plea. There will be a discount at the bottom of the customary range.

45 The part played by Richard Smith in the murder was greater than that played by the offender. I am satisfied that Richard Smith and Kennedy assaulted Mr Davies and that the offender did not. So Richard Smith played a somewhat greater role than the offender, though I have in mind that the offender participated willingly and for his own advantage.

46 An argument arose on sentence whether the proper basis for sentencing was that the offender was a member of a joint criminal enterprise and that in the execution of the enterprise Mr Davies was killed with intent to do him grievous bodily harm, or whether Mr Davies died by the act of one of the participants in the course of the execution of an enterprise to commit an offence of appropriate seriousness, generally called constructive murder.

47 I note that para 2 of the offender's written submissions included this:

The plea of guilty to murder was entered on the basis that Mr Smith was a participant to a joint criminal enterprise to rob and remained a participant when the actions of his co-accused [were] such that the possibility of grievous bodily harm was apparent.

48 I would have thought that that was the appropriate way to regard the matter. In any case, the distinction is irrelevant for sentencing purposes. Either formulation would lead to a conviction for murder. The offender is to be sentenced as responsible for the resulting murder with particular regard to the part he played.

49 Having in mind her interview with the offender and the test results, Ms Duffy considered that there was a moderate to high risk of recidivism, that there was a need for his participation in programs to manage his abuse of alcohol and other drugs and that there was a pressing need to come to grips with his submission to peer pressure. She observed that there were more general needs to deal in a structured way with the offender's misconduct and involvement in crime.

50 I accept that there is a need to manage the offender's devotion to the abuse of alcohol and other drugs and to moderate his attitude to the commission of offences.

51 I accept that the offender is remorseful. Evidence of what he said to his mother and to Ms Duffy, supported by his account to his friends in the recorded conversation, shows that notwithstanding the part he played in the attack on Mr Davies, he attempted to relieve his suffering.

52 It was not submitted that the offender's low verbal intelligence score should lead to the conclusion that he was not a suitable subject for the imposition of a generally deterrent sentence, or that his verbal difficulties would make service of his sentence more onerous.

53 I cannot conclude that there are reasonable prospects of rehabilitation. I note Ms Duffy's opinion about the capacity of the offender for training, but against that has to be considered the risk of recidivism. I cannot here and now predict how the offender will respond to the counselling and training and other assistance he will be offered while in custody.

54 Although his record does not assist him, I do not think that it should be regarded as an aggravating feature of itself. It does bear however upon his prospects of turning around.

55 I propose to impose sentences accumulated on the non-parole period of the offender's latest sentence in the District Court. It expired on 7 August 2013. The sentences I shall impose for the present offences will be partly accumulated on each other. I shall for that reason disturb the prima facie statutory relationship between the non parole period and the parole period of the last occurring sentence.

56 It was not submitted that any circumstance other than this inevitable accumulation of sentences justified any adjustment of the ordinary ratio between the non-parole and the parole components of the total effective sentence. I do not think that there is any other such circumstance.

57 A victim impact statement was read by Ms Tarr on behalf of herself and the brothers of Mr Davies. They are aware, I think, that the Court cannot take their suffering into account in sentencing the offender, but it does extend its sympathy to them in their loss and grief.

58 Steven John Smith for the robbery of Mr and Mrs Cowles and for the robbery of Mrs Cowles, I sentence you to imprisonment for eight years. The sentences will be concurrent, commencing on 8 August 2013. On each sentence I set a non-parole period of six years, expiring on 7 August 2019.

59 For the murder of Mr Davies, I sentence you to imprisonment for twenty years, commencing on 8 August 2016 and expiring on 7 August 2036. I set a non-parole period of fourteen years, expiring on 7 August 2030. The earliest day upon which you will become eligible for release to parole will be 7 August 2030.

**********

Decision last updated: 21 November 2013