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. 5 The distribution and position of many of the knife wounds to the deceased is unusual. So far as the stab wounds are concerned, there was one to the chest, 6 to the buttocks, 2 to the right side of the back half way down, and 2 to the back of the head. The wound to the chest was about 10 cm deep, and so were one each of the buttock and back wounds. The rest of the stab wounds were shallow or less than 3 to 4 cm deep. 6 There were 4 incised wounds – again 2 to the back of the top of the head, one to the lip and one to the forehead. With the possible exception of a Sloppy-Joe which showed one hole, none of the clothing found, although much was stained with blood, showed holes or indications of stabbings. In the lounge room was an empty condom packet, but no condom was found. It may be noted also that the deceased was a small man, 167cm or about 5 feet tall, and weighing 41 kg or about 6½ stone. 7 In addition to the knife wounds, Dr Ellis observed on the deceased's body about 8 scratches, 10 lacerations, 58 abrasions and some 14 areas of bruising on the body of the deceased. The vast bulk of the abrasions were small. Seven areas of bruising – on the right shin, on the inside of the left arm, on the right side of the face, on the forehead, on the left rear waist area and on the right side and rear of the head - were described as large or extensive or the like. Dr Ellis was not able to say more in the case of almost all of these injuries than that they were inflicted no more than 1 or 2 days before the deceased's death and that some of the abrasions and lacerations could have been sustained after death. The doctor postulated however that some injuries on the shaft of the penis were probably due to something striking Mr Collin's body. 8 When the police arrived at Mr Collins' flat, in addition to matters to which I have referred, they found underneath the front of a lounge what might be described as a large folding penknife. It was closed but blood was apparent on the visible edge of the blade and also towards the end of the knife opposite to that from which the blade hinged. When opened, blood was visible over much of the length of the blade and over much of its width. There appear however to be areas of the blade not bloodstained. The blood was that of the deceased. (In so concluding and elsewhere in these remarks, I have relied on the DNA evidence and what, in the particular circumstances of the case, I regard as the logical, if not inevitable inference to be drawn from it.) 9 On a lounge chair, underneath what seems to be a jumble of electrical cord, clothes and other items were 3 more knives. Two were steak knives one of which had its blade bent at an angle of about 70%. The third knife was a larger kitchen or chef's knife which had had its tip broken off. As did a number of other items on the chair, the three knives had on them the blood of the deceased. 10 Also found was a small kitchen knife on Ms Tarrant's bed, but there was nothing more than a presumptive indication of blood on it. 11 Dr Ellis' evidence was that the stab and incised wounds could have been caused by one or more of the bloodstained knives found. 12 The first anyone not present at the time of the deceased's death seems to have heard of it was when Mrs Smit approached an acquaintance Mr Ranse one morning and told him that she needed a hand to clean up a dead body she identified as Craig. Mr Ranse declined to assist. Later in the day he told an acquaintance of the conversation and in due course the police came to hear. Although the evidence is not all one way, I am satisfied that the conversation between Mrs Smit and Mr Ranse occurred on 29 August. 13 The deceased had been seen in his own flat at about 2am on the night of Tuesday 28 August, i.e. early in the morning of 29th, by a Mr Mallard who lived in a flat upstairs and who thought there was a party going on. 14 Mr and Mrs Smit were not arrested until 31 August. Ms Tarrant would seem to have been arrested on the same day on another charge. She was interviewed about Mr Collins' death on 1 September 2001. 15 When interviewed by the police, Mr Smit acknowledged being at Mr Collins' flat on an occasion with his wife and Ms Tarrant, though he placed the occasion of the visit some 10-14 days earlier. His account of events included the following. He said that on that visit the deceased, clad in only a shirt had tried to rape Ms Tarrant. Mr Smit pulled the deceased off, and punched him a couple of times. Mr Smit also said that he grabbed the deceased by the throat a little bit and threw him on the ground. Then the deceased produced a cricket bat and hit Mr Smit with it. Mr Smit grabbed the bat and tossed it aside. Mr Smit asserted other aggression by the deceased including the production of a knife and fighting between the deceased and Ms Tarrant who the deceased stabbed in the thigh. (It is not clear whether Mr Smit saw that stabbing occur or was relying on what Ms Tarrant may have shown and told him later.) Mr Smit described the knife as a fold-out one although he also saw one with a black handle. 16 Mr Smit said that he tried to intervene in the fighting between the deceased and Ms Tarrant and then "as far as I knew, everything was going to be fine. I didn't know that, yeah, that he was in the situation he was in until I woke up". Mr Smit seems to have imbibed a great deal of alcohol and at one stage suggested that he sat down and waited in the belief that one of the women had gone to get help – as Ms Smit seems to have sought to do. Later he decided the deceased who, in Mr Smit's words, "wasn't really alive" needed covering up - something which Mr Smit achieved with a blanket. After picking up a few things and putting them on a chair so he could move the deceased, Mr Smit moved him to the kitchen, then left, locking the door behind him. The other prisoners were at Mr Smit's residence when he arrived there. 17 No record of any ERISP of Mrs Smit was tendered by the Crown. I would infer that there was none or none in which Ms Smit did more than exercise her rights to remain silent on the issues relating to Mr Collins' death. 18 In her ERISP, Ms Tarrant denied knowing anything about the matter and about a number of the details about which the police questioned her. She denied being in any altercation with the deceased and denied any such altercation in which he had tried to have sex with her. She said that she had last seen him about a week before her interview at a Katoomba Hotel. Although the transcript of the interview does not record it, a viewing of the video recording shows that Ms Tarrant answered "No" to question 135, "Have you been to Craig's house at 280, Unit 2,80 Camp Street, Katoomba in the last week?" Also, while acknowledging that she had lived at the flat where Mr Collins body was found, she said she was not sure when she last stayed there and had been living at some other address for 3 or 4 months. Ms Tarrant acknowledged being on amphetamines while staying at Mr Collin's place. 19 There was a deal of evidence from which one might conclude, as I do, that many of the answers in which Ms Tarrant distanced herself from Mr Collins' premises were deliberately false. I should record also that although there are clear indications in her interview of tiredness and/or being affected by drugs or lack of memory, there is also in the ERISP evidence I find persuasive that at least some of those indications are fabricated or exaggerated. Thus when asked to draw or write – Q 244 and Q283 - Ms Tarrant appears to be alert and have no difficulty in doing what she was asked. 20 In the interview Ms Tarrant also denied having any injuries on her legs. In evidence were photographs, taken shortly after that interview, showing a wound to one of her upper thighs some 5mm long which, from its appearance, could well have been a stab wound. 21 Although there is a considerable correlation between some of the details as recounted by Mr Smit in his ERISP and matters established by more objective evidence, it is impossible to believe a number of the statements that Mr Smit made. Indeed I am satisfied that in significant measure Mr Smit's account of what occurred at the deceased's flat was a lie. It may be that some of what he said concerning the bat and the fight between Ms Tarrant and the deceased was true as far as it went but I am satisfied that to suggest he saw no more, went to sleep and slept through what else was done with the bat and knife or knives was a lie. And I reach that conclusion notwithstanding that I have no doubt Mr Smit was badly affected by alcohol and drugs at the time and may well at some time – probably when the adrenaline inspiring events had concluded – have slept. 22 Mention should also be made of some articles of clothing which the police found at the home of Mr and Mrs Smit. These included a pair of joggers, a pair of tracksuit pants and a T-shirt. I am satisfied by the location where they were found and DNA evidence that the first 2 of these items belonged to Mr Smit. It seems to have been common ground that the T-shirt was also or at least had been worn by him. I am also satisfied primarily by DNA evidence that all three items bore Mr Collins blood. Keys to Mr Collins flat were also found at Mr and Mrs Smit's home. 23 Forensic evidence which I accept was to the effect that the articles showed, in addition to contact marks, blood spatter which extended from the right shoulder and sleeve of the T-shirt, to the track suit pants, to both shoes. 24 Of course none of the statements to which I have referred above are admissible against anyone other than their maker. Having regard to the terms of s65(2)(d) of the Evidence Act, for reasons given by me during the trial, parts are however admissible in favour of others of the Prisoners. In light of the fact that it provides evidence of a motive for an attack on the deceased, and is an incident of his account of an attack occurring, I would regard Mr Smit's account of the attempted rape of Ms Tarrant as against his interests and as falling within s65(7) and (2)(d). 25 That is not to say, of course, that other provisions of the Evidence Act might not lead to the evidence's exclusion. In fact, during the trial, and in accordance with counsel's objections and the usual practice, the matter was dealt with simply on the basis that what Mr Smit had said in his ERISP was not admissible against the other two Accused. 26 None of the prisoners gave evidence at the trial. Otherwise the only statements attributed to any of them was contained in evidence given by Mr Ranse who said that at the time Mrs Smit had approached him seeking help to dispose of the body, she said that "both of us, but mainly Steve" had killed Craig "with a cricket bat" and that "he belted the fuck out of him". Mr Ranse also gave evidence to the effect that Mrs Smit had a beanie on, something he had not seen her with before and he asked "What's the beanie?" He said that Mrs Smit's response included the following, "I've got all fuckin' blood through me hair and everything … got to fuckin' cover it up, haven't I?" In case it should become important, I record that, despite the attacks on, and criticism of him, I regarded Mr Ranse as honest in his evidence and I am convinced to the relevant standard that conversation to the effect of that just recounted occurred. 27 Mr Frank, another witness whose evidence in this regard I accept, also spoke of seeing or speaking to a female that morning who looked, "Freaked out, very agitated, very nervous and very desperate". Mr Green spoke of obviously the same person appearing to be in a panic. If one accepts Mr Ranse as I do, this woman can only have been Mrs Smit. I accept the evidence referred to in this paragraph. 28 Apart from evidence which may be described as evidence of association, and which, of itself, said nothing on the issue of guilt, other evidence which tended to implicate the prisoners was largely forensic in its nature. 29 Various items in the deceased's flat were examined for fingerprints. Two fingerprints on the bat came from Ms Tarrant. I am satisfied that in the making of those prints there was a transfer of blood from Ms Tarrant to the bat. 30 I am satisfied also that a fingerprint on one of the knives is that of Ms Smit. That knife was one of the bloodstained ones found on a chair in the deceased's lounge room. I would infer from the photographs that the blood on the knife bearing Mrs Smit's fingerprint was the result of being inserted in a body or blood or of contact with something virtually dripping with blood. 31 In the trial there was no evidence of premeditation and, apart from the matters to which I have referred, no evidence of motive for the killing of the deceased. Because however it may throw some light on that topic or perhaps more accurately provide a possible explanation for events, there is some other evidence to which I should refer. Mr Mallard who lived in a flat above Mr Collins said that on the Wednesday morning he heard voices going up beside the house in the direction of the street. He heard a voice say "Where have they gone? Have they got any more speed?" The voice that spoke was male and the other female. The combination of Mr Mallard's evidence and the topography is strongly indicative of the persons mentioned having come from the deceased's flat. 32 Mr Mallard went out the front and saw a person waiting up the top. The person had very long black straight hair and may have had a moustache. In a description given to the police Mr Mallard had said the person was of middle-eastern background or appearance, about 5'10'', in his late 30s, and had his hair in a long ponytail. Mr Mallard had seen this man in the downstairs flat on the Monday night, when it appears Mr Mallard turned the music down himself. Mr Mallard said that the man in the dock, Mr Smit, was not someone he had seen at the downstairs flat and did not look like the man he described and was not the man he had seen. However, it is appropriate to point out that Mr Smit's appearance in the dock was radically different from his appearance as depicted in photographs taken at the time of his arrest. Mr Mallard was not invited to consider any photographs. 33 Because of the element of intention included in the definition of hearsay evidence in s59 of the Evidence Act, I do not regard the implied statement as to the past presence or possession of speed, in the reference "more speed" as hearsay. The evidence therefore provides some evidence that "speed", a pseudonym for amphetamines, had been present at the deceased's flat in the preceding hours. 34 Blood tests on blood taken from the deceased revealed some small amount of cannabis residue but no indications of amphetamines. 35 In a Pre-Sentence Report prepared by the Probation and Parole Service in respect of Mr Smit and tendered during the sentencing proceedings, it is recorded that:- "Mr Smit said that during the months prior to the commission of the offence now before the court, he was heavily involved in alcohol, rohypnol and amphetamines as well as withdrawing from methadone. He said that he was in a "mess" and thought that "Satanists were working with the Department of Community Service and he started suspecting "everyone" as a spy."… Enquiries confirmed that during this period Mr Smit in his telephone calls to his parents and contact with other people appeared to be in a very disturbed state and his behaviour was described as bizarre and irrational and that he was difficult to handle. Mr Smit said prior to the offence he was abusing a cocktail of drugs and alcohol as well as withdrawing from methadone. He said that a part of his delusions at that time included the thought that the victim was a paedophile and that the victim was raping a woman. It is noted that one of his co-offenders denied she was being raped. In his mind he also thought the victim had a knife in his hand although he was unsure as to whether these incidents were real or imagined. Mr Smit said that he does not believe he killed the victim although he did assault him… Mr Smit does not believe he hit the victim with the cricket bat or he was responsible for the stab wounds inflicted upon the victim." 36 In a Pre-Sentence Report concerning Mrs Smit, it is said that according to her she started to use amphetamines from the age of 20, and heroin from the age of 22. She claimed she had not used heroin since 1998 but has used amphetamines and prescription pills since then until her arrest. 37 In a Pre-Sentence report concerning Ms Tarrant, it is recorded that Ms Tarrant claimed her drug use commenced when she was 13 or 14 – she was born in August 1972. At 16 she commenced intravenous use of amphetamines. She ceased this use after a year and then in 1996 turned to heroin. Her use of that drug varied but in 2001 she resumed using amphetamines in response to a severe lethargy which she associated with withdrawal from methadone. She had attempted that withdrawal in May and July 2001. 38 What conclusions should be drawn from all of the matters to which I have referred? Even apart from the stab or knife wounds, the objective evidence of injuries to the deceased and the condition of his flat suggests a violent and, subject to matters dealt with below, perhaps frenzied, attack on him. It is notorious that persons under the influence of amphetamines are liable to lose their ability to act and react rationally. As a matter of probability, I regard it as likely that among the matters which led to the severe attack on the deceased which occurred, was the influence of amphetamines. However, given the limited extent of the evidence, I would not be prepared to reach this conclusion beyond reasonable doubt. 39 I am also satisfied that all three were substantially affected by alcohol at the time Mr Collins was killed. The evidence in that regard is stronger in the case of Mr Smit and Ms Tarrant but the probability is that Mrs Smit was also. 40 The stab and other knife wounds merit separate attention. As I have said I regard the distribution and position of many of the wounds as unusual. With the exception of the knife wound to the chest, they do not fit any pattern one would expect if the deceased had been facing his assailant except in a body to body embrace. Nor do they fit any pattern one would expect if the deceased had been trying to flee from his assailant. The number, and perhaps relative clean shape, of the wounds tells against a standing-up embrace but, again with the exception of the wound in the chest, they are consistent with the deceased lying on the striker who has some scope for arm and hand movement. In that scenario, the chest wound could have been inflicted when the deceased and striker were separating although obviously it could have been inflicted otherwise. 41 I do not see the incised wounds as telling to any significant extent against the theory advanced in the immediately preceding paragraph. The deceased's nudity and the absence of knife marks in any clothing, other than possibly one mark in the Sloppy-Joe, provide some support for the theory. The extent of bloodstained and other items which were found argues against the destruction of any clothing bearing such marks. 42 The opened condom packet is also suggestive of sexual activity but in the absence of the condom or evidence of how long the packet had been there or of the tidiness of the occupants of the flat, I do not regard myself as justified in drawing any relevant inferences from the presence of the packet itself. 43 It should be said that the records of Mr Smit's ERISP suggest very strongly that he was not in full possession of his faculties at the time of the interview. Some responses are explicable on the basis of a desire not to be frank but there are clear indications that he may have been suffering the effect of alcohol or drugs. Furthermore, a psychologist's report to which I refer at greater length below provides grounds for treating anything Mr Smit said at that stage with reserve. On the other hand, there is nothing in Mr Smit's appearance in, or the terms of, the interview which positively suggests that his account of attempted rape may have been deliberately false. 44 It should fairly be said that during the trial there was no attempt to support Mr Smit's account of intervening in an attempted rape. And, as I have indicated, Ms Tarrant denied any such suggestion and Mr Smit's account in that regard was not admitted in her case before the jury. Nevertheless, I have thought it proper to theorise as I have done because the evidence is before me and is sufficiently striking as to merit, if not require, consideration by a sentencing tribunal. 45 Neither was there any attempt to deal with the evidence differently during the sentencing proceedings. When I raised the topic, the attitude of the Crown was to submit that the suggestion was speculative, that of counsel for Mr Smit that I should proceed on the basis that the latter confronted Mr Collins and struck him in circumstances where Mr Smit thought there was provocation and that of counsel for Ms Tarrant that he did not seek to argue against the theory. Ms Flannery, appearing for Ms Smit did not direct attention to the topic. 46 But the evidence seems to me to go further. Although I do not suggest it justified anything like the level of violence towards Mr Collins which occurred, it at least raises as a reasonable possibility that the attack on him was something he provoked and that some of the wounds inflicted were a result of that provocation. That is sufficient to lead me to reject the Crown submission that the prisoners' conduct should be regarded as above the middle of the range of seriousness in murder offences. However, given the way in which the trial and sentencing proceedings were conducted, and the absence of any suggestion by Mr Smit that any provocation by the deceased caused or inspired other than measured or moderate responses, I am not disposed to go further in my findings. In so concluding I bear in mind also s21A(3)(c) of the Crimes (Sentencing Procedure) Act. 47 It is also appropriate to record that the Crown case as it was submitted to the jury was that, in the case of each Prisoner, that person could and should be found guilty if a principal offender, a party to a joint criminal enterprise, or present and intentionally encouraging or assisting a principal offender. Thus the jury's verdict in relation to each of the Prisoner's means no more than that they were satisfied that each prisoner had participated to the lowest of these levels of criminality. Implicitly, that participation may have been to a small degree. 48 Am I satisfied beyond reasonable doubt of any greater involvement? The Crown disclaimed any suggestion that Ms Tarrant's fingerprints on the bat tended to show that she was the principal offender and there is nothing else to show that her role was more than at the lowest level of participation. 49 Mrs Smit's statement to Mr Ranse to the effect that "both of us, but mainly Steve" had killed Craig "with a cricket bat" and that "he belted the fuck out of him" does satisfy me that she had some active involvement going appreciably beyond mere presence and a minimum level of encouragement or assistance. Her statement to the effect that she had blood through her hair and, implicitly, that it was enough to need covering up with a beanie also argues persuasively in the same direction. 50 As I have indicated, Mrs Smit's statement to Mr Ranse is not evidence against Mr Smit. Although there is a temptation to conclude from his sex and size and the acknowledgement in his ERISP of handling the bat that Mr Smit is more probably the person who inflicted the fatal blow with the cricket bat, I do not feel able to so conclude beyond reasonable doubt. On the other hand, I am satisfied that Mr Smit also had some active involvement going appreciably beyond mere presence and a minimum level of encouragement. There are the matters to which I have just referred, there is also his admitted involvement in some physical activity against the deceased, there is the lie I see in his ERISP and to which I have referred, and there is the blood spatter on his clothes. It defies belief to suggest that all of that could have been deposited on him while he slept blissfully through Mr Collin's death. Equally, it is impossible to believe that, having involved himself to the extent he concedes, he thereafter abstained, sitting or standing peaceably by. And neither in his ERISP or anywhere else is there any suggestion he tried to stop the extensive battering – I put aside the knife wounds for the present – Mr Collins received. I do not forget that the onus is on the Crown and that it is a high one but I am satisfied that his involvement also was more than at the lowest level of participation. 51 Although I see it as possible that at least some of the knife wounds on the deceased were acts of defence or responses to provocation, the number of scratches, lacerations, abrasions and bruises, the fatal wound to his larynx, the state of disarray of the lounge room and the widespread distribution of blood in it leaves me with no doubt that he was subjected to great and prolonged and unjustified violence. I have no doubt also that that violence was at the hands of one or more of the prisoners. However, the evidence against the prisoners individually does not permit me to make findings more adverse to them than I have done. Equally, I am satisfied that they are not entitled to findings more favourable. I am unable to conclude to the relevant standard that any particular prisoner inflicted the fatal wound or wounds. Of necessity, all of these findings, and those hereafter, have a bearing on the magnitude of the sentences to be imposed. 52 In the foregoing, I have not attempted to refer expressly to all of the detailed evidence which there was in the trial or to all of the possible inferences which may arise from each piece of evidence considered in isolation. Nor do I suggest that my analysis provides a comprehensive account of all that occurred in and about the time of Mr Collins' death. However it is the best I can do having regard to the evidence available and fairness to the Crown and the prisoners required that I do that much. I might perhaps add one further thing. The number of, and distance between areas where blood was found in the lounge room and the evidence of projected blood lead to the conclusion that Mr Collins moved or was moved around after he was stabbed and not just in the course of being dragged to the kitchen and that some of the battering of him occurred after that early movement. 53 There is no evidence of premeditation and although the degree of violence argues for there having been an intention to kill, the extent to which each of the prisoners was, or may have been affected by alcohol and/or illegal drugs leads me to the conclusion that I cannot be satisfied that that was their intention. 54 I turn to the subjective circumstances of each Prisoner. Mr Smit was born on 19 July 1970. He grew up in a close, loving and well supervised family. His father was a pastor and this seems to have caused some difficulties in Mr Smit being accepted by his peers. With a view to being accepted, Mr Smit then went out of his way to be a troublemaker and also became involved in drugs and alcohol. He seems to be of above average intelligence but at school lacked application and generally performed below his ability. He left school in year 11. He became an apprentice motor mechanic but did not complete his apprenticeship. For some time thereafter he has been in employment, progressing in one place from yard person to manager of a car yard. 55 However it seems clear that most of Mr Smit's adult life has been dominated by drug taking, cocaine, "speed" and alcohol. For a time he was taking both rohypnol and methadone. Although the Pre-sentence Report does not mention it, use of the latter drug indicates that at some time Mr Smit was probably addicted to heroin. Detoxification efforts have failed. It appears that during the months prior to the commission of the offence for which Mr Smit falls to be sentenced, he was indulging in a cocktail of alcohol, rohypnol and amphetamines though withdrawing from methadone (because his then prescriber would not prescribe both rohypnol and methadone). His parents and others described his conduct to the author of the report as bizarre and irrational. 56 Mr Smit's antecedents include a number of driving offences, including driving while unlicensed or when his licence had been cancelled, driving with an excess concentration of alcohol, stealing and offences involving the possession, supply and administration of prohibited drugs. Most such offences have been committed more than once. He has also been convicted of possession of an unauthorised and unregistered firearm. His only conviction for violence would seem to have been in 1994 in the Australian Capital Territory when he was convicted of assault occasioning actual bodily harm and received a 2 year suspended sentence. His most severe punishment seems to have been 6 months imprisonment. 57 Pending his trial Mr Smit was on bail. During this period he returned to his family where he exhibited, according to the Pre-sentence report, a marked change in his behaviour and attitudes and freedom from drugs. The author of the report said that it now seemed that Mr Smit had set himself some positive goals and had demonstrated he was capable of engaging in a positive lifestyle. Mr Smit is well regarded by Correctional Officers and while on remand has worked within the prison system where he progressed to a position of trust. 58 The report also records remarks made by Mr Smit relevant to the circumstances, and his mental state, at the time of Mr Collins death. Having regard to their untestable hearsay nature, and to the fact that they could have been given in the witness box but were not, I do not regard these remarks as bearing any appreciable evidentiary weight. 59 There was also tendered on Mr Smit's behalf, a psychological assessment of him prepared by Associate Professor Hayes of the University of Sydney. Again on the basis of what Mr Smit said to the author, that report provides more detail of Mr Smit's history of drug taking. It says that by the time he was 18 or 19 he had a severe drug problem, using cocaine, speed and alcohol. It was his drug problem that led to him not completing his apprenticeship. At about 21 he was imprisoned for possession and supply of cannabis. On release he returned to substance abuse, then becoming addicted also to heroin and rohypnol. Professor Hayes records that after some unsuccessful attempts at detoxification and rehabilitation, by 1997 when he and Mrs Smit married, Mr Smit was drug free, apart from Methadone although, somewhat inconsistently, she says that Mr Smit was at that time still addicted to rohypnol. He seems to have then led a normal life for some 2 years, working during that period. 60 Then, according to the report, a number of things happened. Mr Smit decided to come off methadone. His usual doctor moved and Mr Smit had difficulty in obtaining rohypnol. Mr Smit started using speed "in order to get energy and motivation". Mr Smit said that he thought he then started to become psychotic and suffered from panic anxiety attacks and delusions. It is unnecessary for me to detail the balance of Mr Smit's history beyond reporting that he had on one occasion placed a shotgun near a phone and cocked it so the person on the other end could hear the noise; he harassed a lot of people until he obtained rohypnol and "felt OK again". Police came to his house because of the shotgun incident. After thinking for a time that they were not real police and were going to kill him and obtaining the shotgun again he rang the emergency number and had the genuineness of the police confirmed. One may infer that it was this incident that led to the weapon charges to which reference has been made. According to the antecedent report the offences, the subject of those charges were committed on 5 July 2001. 61 Professor Hayes concluded that at the time of Mr Collins' murder Mr Smit was probably suffering from a drug induced psychosis, with paranoid ideation and that his drug use at the time substantially contributed to the circumstances of the offence, impaired his ability to make reasoned decisions and to foresee the consequences of his actions. She observed that rohypnol abuse has been associated with violent crime and amnesia for the crime. 62 Professor Hayes also observed that at the time she interviewed Mr Smit, 30 May 2003, he was talkative and co-operated well in the assessment and that at that time there was no evidence of any psychological or psychiatric symptoms. She opined that Mr Smit's prognosis was good provided he remain abstinent. I accept this prognosis and the condition which formed part of it. There is no evidence of contrition but the inference that Mr Smit has had brought home to him the consequences of his previous lifestyle is one I draw. 63 Mr Smit married his co-offender in 1997. They have 2 children, born drug dependent, who are cared for by their maternal grandmother. 64 Mrs Smit's antecedents include 10 offences of larceny and other similar offences, one of assault for which she was fined $200, and some minor traffic offences. Her most severe punishment seems to have been imprisonment for one month. Born in 1970, her first recorded conviction was in 1982, and the next in 1993. 65 Mrs Smit's mother, Mrs Talbot, gave evidence. She said that Mrs Smit had left school during year 11 and then worked for some 3 years and became pregnant and engaged. Mrs Talbot gave evidence that the fiancé was Mrs Smit's soul-mate. When Mrs Smit was 5 months pregnant and nearly 19 her fiancé was killed in a car accident. Within a short time Mrs Talbot's father with whom Mrs Smit was close also died and soon after Mrs Talbot's mother became a paraplegic. Within this period Mrs Smit's other grandmother also died. 66 After the death of her fiancé and these other events things started to change in Mrs Smit's life. She started to work as a barmaid and within 18 months her mother discovered that she had started to use drugs. That drug use continued until she went into custody. Just prior to Mr Collins' death Mrs Talbot had a large number of phone calls from her and formed the view that at that time Mrs Smit was very unstable. 67 Since Mrs Smit went into custody Mrs Talbot has had regular contact with her, observing "I can speak to my daughter now… and she is a beautiful person back again." Mrs Talbot said she believed Mrs Smit was no longer using drugs and would not do so again because of the serious price she had paid. Mrs Talbot said that she and her husband intended to support their daughter until she was released from custody. They have been looking after Mrs Smit's four children. 68 There was tendered on Mrs Smit's behalf a report of a forensic psychiatrist, Dr Nielssen. Mrs Smit said to Dr Nielssen she was in an unstable state at the time of Mr Collins' death in consequence of a new doctor telling her that prescription of methadone and rohypnol together was not permissible, forcing her to choose and in consequence foregoing methadone. To Dr Nielssen Mrs Smit said her unable state was nothing to do with Mr Collins' death and did not result in impairment of her memory to the extent that she would not have remembered the events. She maintained she knew nothing about Mr Collins' death. 69 Mrs Smit told Dr Nielssen she began using illicit drugs after the death of her partner, she felt immediate improvement in mood and was strongly attracted to the use of drugs thereafter. She remained an intermittent amphetamine user until her arrest with periods of very heavy use of up to 7 grams per day in multiple injections. She was introduced to heroin which eventually led her to "the gutter at Cabramatta." Her choice to stop methadone was in consequence of previous experiences withdrawing from benzodiazepines. Those experiences included withdrawal seizures. Mrs Smit told Dr Nielssen she had worked for parts of 10 of the last 15 years. Her previous jail sentence was for recurrent shoplifting during a period of heavy heroin use. Mrs Smit told Dr Nielssen she had resumed amphetamine use to overcome the symptoms experienced when withdrawing from methadone. 70 Dr Nielssen observed that methadone was notoriously difficult to stop suddenly and amphetamines are known to make people more aggressive and Mrs Smit had reported a previous episode of amphetamine induced psychosis. The doctor opined that Mrs Smit's prognosis was directly related to her capacity to remain abstinent from drugs. His impression was that she had a better than even chance of maintaining long term abstinence after her release. 71 Also in evidence was a Pre-Sentence Report relating to Mrs Smit. It adds little to the evidence of her mother and that contained in Dr Nielssen's report. It does observe that Mrs Smit's children have been in the permanent care of her parents and that she had made efforts to kerb her drug use at some stage. To the author of the Pre-sentence Report and Dr Nielssen, Mrs Smit denied involvement in Mr Collins' death. 72 During the sentencing proceedings, Ms Ramsay who, between February and May 2002 was employed as a chaplain at the Mulawa Correctional Centre, was called and a report from her tendered. She said that Mrs Smit showed a desire to rehabilitate herself from the use of drugs and seemed to be motivated by the shock at where she had wound up and wanted to be a better person with a more positive future. In her report Ms Ramsay also referred to activities Mrs Smit had participated in whilst in prison, activities which indicate a willingness to work and improve herself and that she has demonstrated trustworthiness and some responsibility. Mrs Smit seems also to be seriously addressing her past problems. Although drugs and alcohol were available in Mulawa and Mrs Ramsay had often seen others affected, she had never, so far as she could tell, seen Mrs Smit affected by them. Asked if she knew what was motivating Mrs Smit to rehabilitate herself, Mrs Ramsay said "the shock of where she ended up". 73 Again I am disposed to accept the opinion of the expert which is in evidence to the effect that Mrs Smit's prognosis was directly related to her capacity to remain abstinent from drugs. Mrs Smit has had perhaps less chance than Mr Smit to demonstrate her prospects but her repeated denials of involvement in Mr Collin's death do not help in persuading one that she has fully faced up to the issues to be dealt with. I am not persuaded that any remorse Mrs Smit has goes beyond consideration of herself although, at the end of the day, I am disposed to think I should accept Dr Nielssen's impression that she has a better than even chance of maintaining long term abstinence after her release. 74 Born in 1972, Ms Tarrant's first recorded offence seems to have been in March 1987, of malicious injury. Her antecedents include 17 offences in all, including offences of assault on a female, aggravated assault on a female, resisting arrest and assaulting police, a number of offences of dishonesty, possession of a prohibited drug and possession of a prohibited weapon. She was also convicted on one occasion of unlawful wounding although for that offence she was released on a recognisance to be of good behaviour for 12 months. Her most severe punishment was 6 months imprisonment commencing on 31 August 2001 for breaking and entering and being in possession of goods reasonably suspected of having been stolen. 75 Information concerning Ms Tarrant's past was contained in a pre-sentence report and a report from Anna Robilliard, psychologist. It appears that Ms Tarrant's father was an alcoholic who physically abused her mother until they finally separated when Ms Tarrant was about 12. He assaulted Ms Tarrant on one occasion. For a time Ms Tarrant then moved between her parents' residences. 76 By age 13 or 14 she was living in a youth refuge and then a number of similar institutions. She became pregnant when 14 or 15 and when she announced the pregnancy to the father he beat her badly. Ms Tarrant then went to live with her mother. A second relationship lasted some 5 years and resulted in 2 children before it fell apart. She then lived with a third partner for a couple of years, this relationship also resulting in 2 children. 77 In May 1996 the youngest of these children died from SIDS and according to what Ms Tarrant told Ms Robilliard, "after that I fell apart". Ms Tarrant says that DOCS offered to mind the children temporarily while Ms Tarrant recovered but separated the children and fostered them. In 1997 Ms Tarrant signed custody of the children over to their respective fathers apparently on DOCS recommendation and on condition she saw them twice a year. According to Ms Tarrant, to a significant degree this visiting did not occur. 78 Ms Tarrant then commenced another relationship with a drug dealer who provided all the drugs she needed. A sixth child was removed by DOCS shortly after birth, an event Ms Tarrant described to Ms Robilliard as devastating as she had been drug free from the moment she knew she was pregnant. Attempts to recover custody of this child by court process were unsuccessful and according to Ms Tarrant she then gave up and went back to drug using. 79 Ms Robilliard records that Ms Tarrant reported smoking cannabis at age 13 and 14 for about 6 months, that she then stopped and used no illegal drugs until she was about 16 and began using amphetamines occasionally. With some inconsistency, the pre-sentence report records that according to Ms Tarrant she began smoking marijuana and drinking alcohol at age 13 or 14, that she ceased marijuana use at age 16 not liking its effects and at that time she was introduced to amphetamines and began using intravenously from the start. 80 According to the pre-sentence report except on a sporadic basis, amphetamine use ceased after a year but Ms Tarrant then tried heroin and continued drinking alcohol. Both reports record that after her son's death she turned again to substance abuse, according to Ms Robilliard "as much and as often as possible" using "anything – alcohol, speed and heroin". This heroin use continued until at least 2001 apart from the period of her last pregnancy. She resumed amphetamine use in 2001 in response to lethargy apparently associated with ceasing the methadone program. 81 Ms Tarrant claims to have been drug free since entering custody and her claim in that regard is supported by Ms Ramsay. Ms Ramsay made similar complimentary remarks concerning Ms Tarrant as those recounted above in relation to Mrs Smit and gave a similar explanation of Ms Tarrant's motivation. 82 To the author of the pre-sentence report and Ms Robilliard, Ms Tarrant has maintained she is innocent of involvement in Mr Collins' death. To Ms Robilliard she has apparently asserted that she was not present when Mr Collins was murdered. Again, I am not persuaded that any remorse this offender has goes beyond consideration of herself. 83 There are some other matters to which I should refer. I have considered the terms of s21A of the Crimes (Sentencing Procedure) Act. I do not regard it as necessary to enumerate the factors mentioned in that section which I regard as relevant here although it is obvious from what I have said that a number are. 84 I record also that I have read Victim Impact Statements of Mr Denis Collins and Ms Deborah Collins, respectively the deceased's father and sister. Though the decision in R v Previtera (1997) 94 A Crim R 76 makes plain the limits to which a sentencing judge may put such statements, one cannot read them without having brought home both the loss which Mr Collins' death has caused and, if I may say so, the charity or maturity of Ms Collins. In deference to a hope Mr Collins expressed that I would "give these misfits the rest of their lives to think about what they did to Craig", I should however say this. Although the Crimes Act prescribes life imprisonment as a sentence which can be imposed for murder, the law of this State is that offences of murder are not all of the same gravity and a life sentence is to be imposed in only cases that fall within a "worst" category. I am obliged to follow, and the Prisoners are entitled to have followed, that law. And while no period of imprisonment can equal the loss Mr Collins suffered, deprivation of liberty for the periods involved in this and other cases of murder is calculated to have an impact on offenders' lives in terms of family, children, job prospects and the like from which it is unlikely they will ever fully recover. 85 (I note that s54A et seq of the Crimes (Sentencing Procedure) Act 1999, introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, and the effect of which seems to me to significantly increase the penalties in fact imposed for murder, are expressed not to apply to offences committed prior to 1 February 2003.) 86 One question which arises is whether any further significance, if any, is to be afforded to the prisoners' drug addictions or intoxication at the time of the attack on Mr Collins. I have already indicated that it bears on the issue of intent. It is proper to recognise that all 3 prisoners apparently took to drug taking in response to events over which they had no control and, in the case of Mrs Smit and Ms Tarrant, events what might fairly be described as great emotional trauma. On the other hand, the taking of drugs was initially a matter of choice and they have each had many years in which to appreciate in general terms where their addiction led them and to deal with it. 87 The topic of addiction was dealt with at some length in the decision of the Court of Criminal Appeal in R v Henry [1999] 46 NSWLR 346 albeit in a context different from that here. A number of the issues there raised are relevant here but I will confine my quotation to a few of the Chief Justice's remarks. His Honour observed:- "The original decision to experiment with drugs .. in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so well known that persons who choose a course of addiction must be treated as choosing its consequences; and .. individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather than to seek assistance, is also a choice." 88 Although it seems to me that some recognition should be given to the fact that their drug taking commenced at ages when at least Mr Smit and Ms Tarrant were immature – see R v Henry at [273(c)(ii)] - to some extent the history of all three offenders is illustrative of the considerations to which the Chief Justice referred in the passage just cited. Since Mr Collins' death each of the prisoners has managed to become and remain drug-free. One may accept that custody and its incidents will undoubtedly have assisted in that regard but it is apparent that all three have been able to obtain access to drugs had they wished to do so. According to Ms Tarrant she also became drug free when she had the incentive of pregnancy to help her. Mrs Ramsay attributes the motivation Of Mrs Smit and Ms Tarrant to the shock of where they have ended up. 89 It can be little consolation to Mr Collins' family, or the community, that Mr Collins had to die for the 3 prisoners to become sufficiently motivated. 90 I should however record that there is no evidence that any one of the prisoners has previously been induced to an offence of violence in consequence of the ingestion of drugs or alcohol. 91 Before I turn to the sentences which should be imposed it may be appropriate to reflect on principles to be applied. In doing so, I may be permitted to quote from remarks I made, with the concurrence of other members of the Court of Criminal Appeal in R v Kilmore (unreported, CCA, 13 August 1998). (Coincidentally the offender in that case was also substantially affected by drugs, viz. rohypnol tablets, and alcohol.):- "The authorities dictate that "there ought to be a reasonable proportionality between a sentence and circumstances of the crime...and it is always important in seeking to determine the sentence appropriate to a particular crime, to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration, in order to arrive at the proper sentence to be imposed, cannot properly be given their place." R v Dodd (1991) 57 A Crim R 349 at 354. One must recognise also the purposes of criminal punishment - "protection of society, deterrence of the offender and of others who might be attempted to offend, retribution and reform." - Veen v R (No.2) (1987) 164 CLR 465 at 476; see also R v Purdey (1992) 65 A Crim R 441 at 444-5. In the case of the offence of murder, the starting point for a consideration of the appropriate penalty remains the fact that the offence involves the felonious taking of a human life R v Low (1991) 57 A Crim R 8 at 18-19. The Crimes Act provides, as a maximum sentence for the offence of murder, penal servitude for life. It may be recognised that that maximum is reserved for an offence which comes within the description of a "worst case", but any case of murder must lie high on the scale of criminality. Society has a limited range of practical options in dealing with those members of it who do not accept its mores and it is important that by the sentences imposed, the Courts discourage those members of society tempted to offend, or to place themselves in situations where offence is likely, from doing so. Of course, a reasonable proportionality between the need to deter others and the need to temper the effect of sentences with humanity must be maintained - See R v Martin (Unreported, CCA, 19.3.93) - although subjective circumstances of the offender must not be allowed to blind justice to the objective facts and seriousness of an offence - R v Rushby (1977) 1 NSWLR 594 at 597--8." 92 I record also that I do not find special circumstances. Essentially I do not regard the circumstances as falling within that expression. In any event, although I do not suggest this is determinative, the length of the parole periods involved in the sentences I impose are sufficient to enable such supervision or further rehabilitation as may be appropriate, to occur. This argues against the existence of special circumstances and against the exercise of discretion to extend the parole period. Lest there be any doubt, I also record my awareness of the fact that I have not fixed the non-parole periods at 75% of the full terms. I have taken this course because I of my view that non-parole periods shorter than I fix would be unduly lenient. 93 I add that, in specifying the days on which the Prisoners will become eligible for parole and release, I have departed from the examples provided under s48 of the Crimes (Sentencing Procedure) Act, which reflect a misunderstanding of either simple counting or the law's measurement of time. Absent special circumstances, the law does not take account of parts of a day. Seven days' imprisonment commencing on a Monday expires at midnight on the following Sunday. The person is entitled to be released immediately thereafter i.e. on the next Monday, not on the Sunday as the first example states. Whether for ease of administration the authorities choose to release such an offender on the Sunday is, of course, a different matter entirely. 94 As indicated above, Mr Smit was arrested on 31 August 2001. He remained in custody until 23 December 2002 – a period of 1 year and 114 days. He was then granted bail and returned to custody on the date of the jury's verdict, namely 19 March 2003. To take account of the earlier period of custody his sentence will be backdated to commence on 25 November 2001. 95 As I have said, Mrs Smit also was arrested on 31 August 2001 and has been in custody since. Her sentence will date from that date. Ms Tarrant's arrest on 31 August 2001 would seem to have been on a different matter. Although no point was made of this during the sentencing proceedings, Ms Tarrant's Antecedents Report shows that in October 2001 she was sentenced to 2 periods of 6 months imprisonment both commencing on 31 August 2001 on charges of goods in custody and being in a building with intent to commit a serious indictable offence. It is appropriate to take account of this imprisonment in fixing Ms Tarrant's sentence. 96 Mr Smit, the sentence I impose is that you be imprisoned for a period of 17 years, such term to include a non-parole period of 13 years. Both periods are to commence on 25 November 2001. You will be eligible for release on parole on 25 November 2014. 97 Mrs Smit, the sentence I impose is that you be imprisoned for a period of 17 years, such term to include a non-parole period of 13 years. Both periods are to commence on 31 August 2001. You will be eligible for release on parole on 31 August 2014. 98 Ms Tarrant, the sentence I impose is that you be imprisoned for a period of 14 years, such term to include a non-parole period of 11 years. Both periods are to commence on 31 August 2001. You will be eligible for release on parole on 31 August 2012. ********* Last Modified: 12/18/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.