Regina v Garry Smale [2005] NSWSC 903

New South Wales Supreme Court

CITATION : Regina v Garry Smale [2005] NSWSC 903

21,22,23,24,25 February 2005 HEARING DATE(S) : 20/05/05 26/0805

JUDGMENT DATE : 26 August 2005

JUDGMENT OF : Patten AJ at 1

DECISION : See paragraph 39.

Crimes Act 1900 LEGISLATION CITED : Crimes(Sentencing Procedure) Act

Regina PARTIES : Garry Anthony Smale

FILE NUMBER(S) : SC 2002/95

Mr M Barr - Crown COUNSEL : Mr R Mc Crudden - Defendant

T. Roberts-DPP-Crown SOLICITORS : Bilias & Associates-Defendant

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT JUDICIAL OFFICER : Davidson AJ

- 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

PATTEN AJ

26 AUGUST 2005

NO: 2002 OF 1995 REGINA v GARRY ANTHONY SMALE

SENTENCE

1 HIS HONOUR: The prisoner, Garry Anthony Smale, pleaded not guilty when arraigned before me on 21 February 2005 to the charge that on 19 July 2001 at Leichhardt he did murder Mark Jackson. A jury was empanelled, and on 25 February it returned a verdict of guilty. I heard sentencing submissions on May 19 and 12 August 2005, and he stands for sentence today.

2 For the most part the facts were not in dispute. It appears that as at 19 July 2001 the prisoner was living in a residential flat at Carringbah, and temporarily staying with him was one Shane John Wigney. Several other people, including a Mr Andrew Riach were also staying in the flat. Mr Wigney brought to the flat a gun which he had acquired sometime previously. 3 On the afternoon of 18 July 2001 the prisoner, Mr Wigney, and possibly Mr Riach discussed plans to commit a crime that night. Initially their object was a hotel at Burwood, and they set out late in the evening with the intention to rob that hotel in a vehicle belonging to the prisoner. They were armed with the gun and carried implements suitable for stealing motor vehicles. They were wearing, or had with them dark clothing and balaclavas or beanies to obscure their faces. 4 On route to the hotel at Burwood the prisoner left the others for a short time while he stole a car to be used in the robbery. However, when they arrived at the hotel in that car they found that it was closed. A decision was made to find another target. They dumped the stolen car at Petersham and went to the house of a Mr Kracker in Crystal Street. At that stage, as it seems, Mr Riach became ill and did not participate further in the unlawful activities that night of the prisoner and Mr Wigney.