R v Smith (No 2) [2023] NSWSC 435

Supreme Court New South Wales

Medium Neutral Citation: R v Smith (No 2) [2023] NSWSC 435 Hearing dates: 3 March 2023 Decision date: 28 April 2023 Jurisdiction: Common Law Before: Ierace J Decision: The offender is sentenced to a term of imprisonment comprising a non-parole period of 15 years and a balance of term of 9 years, being a total sentence of 24 years, to date from 1 October 2021 and to expire on 30 September 2045. The offender will become eligible for release to parole when the non-parole period expires on 30 September 2036. Catchwords: SENTENCING - Murder - Where offender struck 77 year old victim repeatedly with frying pan - Extreme childhood neglect and abuse - Application of Bugmy v The Queen principle - Nexus between mental health diagnoses and offence - No remorse and uncertain prospects of rehabilitation Legislation Cited: Crimes Act 1900 (NSW), ss 19A, 33B, 35 Crimes (High Risk Offenders) Act 2006 (NSW), s 25C Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 30E, 61 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Category: Sentence Parties: Rex Narelle Fiona Smith (Offender) Representation: Counsel: K Jeffreys (Crown) S Hall SC (Offender)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Offender) File Number(s): 2021/8448

Judgment 1. HIS HONOUR: On 24 October 2022, Narelle Fiona Smith (the offender) was indicted on a single count, that between 16 and 21 December 2020 at South Coogee she murdered Peter James McCarthy (the deceased). The jury retired to consider its verdict on 15 November 2022 and returned the next day with a verdict of guilty. The sentence hearing took place on 3 February 2023. 2. The Crown case at trial, which was circumstantial in nature, was that while visiting the deceased in his apartment, the offender became enraged with him for reasons unknown and beat him to death with a frying pan. She then stole some of the deceased's property, including three bank cards and his Opal card, passing the bank cards on to a recent acquaintance who used them for purchases and cash withdrawals from ATMs. 3. The maximum penalty for the offence of murder is life imprisonment (Crimes Act 1900 (NSW), s 19A(1)), although it may be reduced to a sentence of imprisonment for a specified term (Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act), s 21(1)), subject to the Court's finding as to the offender's level of culpability (CSP Act, s 61(1)). If a sentence of imprisonment for a specified term is imposed, a standard non-parole period applies, which is 20 years in the circumstances of this case.