R v SMITH [2008] NSWSC 201

New South Wales Supreme Court

CITATION : R v SMITH [2008] NSWSC 201

HEARING DATE(S) : 8 February 2008

JUDGMENT DATE : 7 March 2008

JUDGMENT OF : Hulme J at 1

DECISION : Sentence the Prisoner to imprisonment for a non-parole period of 2 years and 6 months commencing on 7 February 2008, together with a further term of 15 months commencing on 7 August 2010. I record as the date upon which it appears that the Prisoner shall be eligible for parole is 7 August 2010

PARTIES : Regina Nathan Paul Smith

FILE NUMBER(S) : SC 2007/4575001

COUNSEL : Crown: Ms V Lydiard Prisoner: Ms J Manuell

SOLICITORS : S Kavanagh (DPP)| SE O'Connor (Legal Aid)

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

HULME J Friday, 7 March 2008

2007/4575001 R v Nathan Paul SMITH

REMARKS ON SENTENCE 1 HULME J: The circumstances that have led to the Prisoner appearing before me for sentence are as follows. On the evening of Saturday 9 December 2006 he attended a Christmas party at the Windsor Function Centre. The function ended around 11.30pm and on leaving the Centre, the Prisoner and four friends walked a short distance to a nearby street where they waited on the footpath for a taxi. The Prisoner was well affected by alcohol and witnesses said that the Prisoner appeared to be in an aggressive mood. 2 While they were waiting, Trevor McCormick, aged 40, walked past and in what appears to have been as a friendly fashion, remarked something to the effect "Hey, what's going on". 3 The Prisoner approached Mr McCormick saying something along the lines "What the fuck do you want mate". Mr McCormick replied "Nothing, I was just asking" and without warning the Prisoner punched Mr McCormick in the vicinity of the top of his chest or bottom of his head. As a result of the punch, Mr McCormick fell backwards, striking his head heavily on the concrete footpath and being knocked out. Although Mr McCormick regained consciousness he was taken to hospital but by the evening of Monday 11, December, he had died from a subdural haemorrhage. Post mortem examination revealed a fracture to the back of the skull. 4 Prior to any interaction with the Prisoner Mr McCormick had been at a nearby hotel and subsequent testing revealed that he had a blood alcohol level of 0.159. Although this in no wise ameliorates the Prisoner's criminality, it is proper to recognise that this factor, although it was in no sense causative of Mr McCormick's fall, may have contributed to the manner of it. 5 On the evening of 9 December the Prisoner denied having any involvement in the injury to the deceased although on the following Wednesday, he attended at the local Police Station. He declined to be interviewed and was charged with murder. In the Local Court the charge was changed to one of manslaughter and the Prisoner then pleaded guilty, a plea to which he has adhered. Accordingly in accordance with the guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383, I think it appropriate to allow him a discount of 25% for the utilitarian value of his plea.