R v SMIT, SMIT & TARRANT [2003] NSWSC 893

New South Wales Supreme Court

CITATION : R v SMIT, SMIT & TARRANT [2003] NSWSC 893 HEARING DATE(S) : 6 June 2003 JUDGMENT DATE : 2 October 2003

JUDGMENT OF : Hulme J at 1 DECISION : See paragraphs 96, 97 and 98

Regina PARTIES : Steven Charles Smit Shiree Anne Smit Donna Clare Tarrant FILE NUMBER(S) : SC 70058/02; 70217/02; 70218/02 Crown: Ms L Wells COUNSEL : Stephen Charles Smit: Mr I Byrne Shiree Anne Smit: Ms L Flannery Donna Clare Tarrant: Mr M Paish Crown: SE O'Connor SOLICITORS : Stephen Charles Smit: Ferns Aubrey Mitchell Shiree Anne Smit: TA Murphy Donna Clare Tarrant: TA Murphy

- 28 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HULME J

Thursday, 2 October 2003 70058/02 70217/02 20218/02

REGINA v Steven Charles SMIT, Shiree Anne SMIT AND Donna Clare TARRANT REMARKS ON SENTENCE 1 HIS HONOUR: On Thursday 30 August 2001 the body of Craig Patrick Collins was found in the kitchen of the flat he occupied in Camp Street, Katoomba. It was wrapped in 2 blankets, but otherwise nude. A cricket bat and a number of articles of clothing were also wrapped in the blankets. The body showed extensive bruising, abrasions and a number of stab and incised wounds. The body had been dragged into the kitchen from the lounge room where there was a large amount of blood spread over areas of the floor, and on items of furniture and clothing and some walls. One door and its surrounds were liberally coated with blood. Some blood was what was referred to as transferred but 2 well separated vertical surfaces – a door and its surrounds and another wall showed signs of projected blood. A computer also seems to show a similar sign. There were 2 bedrooms opening off the lounge room, one used by the deceased and one by the prisoner Tarrant who lived in the premises, but there had been no blood letting in them. 2 Arising from Mr Collin's death, the three prisoners before me were charged with his murder. On 19 March last a jury convicted all three and the proceedings were stood over for sentence. Submissions in that regard were made on 6 June and my decision reserved. In approaching the task of fact finding relevant to the matter of sentence, I instruct myself that my findings must be consistent with the verdict of the jury, that if I propose to use any findings beyond those necessarily implicit in a conviction against one of the prisoners, I must be satisfied of that finding beyond reasonable doubt but insofar as there are matters of mitigation, it is sufficient that I be satisfied of them on the balance of probabilities. 3 The Crown also submitted that I should find that each offender had an intention to kill and that, while the circumstances did not bring the Prisoners' conduct into the worst category of murder offences, because of the extensive violence visited upon the deceased I should conclude that their conduct should be regarded as above the middle of the range of seriousness in murder offences. These submissions, and because the evidence as to the circumstances and the role each offender played in Mr Collins death is by no means comprehensive, mean that I must refer to the evidence in a little detail. 4 The direct cause of Mr Collins' death was blunt trauma to the front of the neck, causing fracture of the voice box and resulting in swelling and stoppage of oxygen. In the opinion of Dr Ellis, a pathologist, whose evidence I accept, death would have taken from a few minutes to an hour. Considerable force was required and the swinging of a cricket bat or fist could have caused the injury. Two of the stab wounds could have contributed to death. Dr Ellis seems to suggest that one of these wounds, viz. that to a lung, did. Dr Ellis first saw the deceased at about 8.50 pm on 30 August 2001 and concluded that death occurred between 18 hours and probably 2 to 3 days prior to his examination. Dr Ellis' evidence does not lead to the conclusion that the deceased became incapacitated from significant movement from the time or times of stabbing.