Supreme Court New South Wales Medium Neutral Citation: R v Graham Keys SMITH [2012] NSWSC 1565 Hearing dates: 20-24/08/2012, 27-31/08/2012, 03-06/09/2012, 11-14/09/2012, 19/09/2012, 30/09/2012 Decision date: 14 December 2012 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: For the offence of intentionally destroying the dwelling house by fire, sentenced to 2 years' fixed imprisonment, commencing 19 October 2010 and concluding 18 October 2012. And for the offence of murder, sentenced to a non-parole period of 10 years, commencing 19 April 2011 and concluding 18 April 2021, with a remainder of term of 4 years' imprisonment concluding 18 April 2025. First eligible for release on parole on 18 April 2021. Catchwords: CRIMINAL LAW - sentence - murder - extended joint criminal enterprise - no issue of principle - arson - sentence imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: Regina (Crown) Graham Keys Smith (Offender) Representation: Counsel: J McLennan (Crown) P Bodor QC (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Universal Law (Offender) File Number(s): 2010/153003 REMARKS ON SENTENCE 1HIS HONOUR: A jury of twelve has found Graham Keys Smith guilty of the murder of Luke Charles Ogilvie and intentionally destroying the deceased's dwelling house by fire. I shall refer to each charge as the murder and the arson, respectively. Mr Smith pleaded not guilty to each of those charges. 2Criminal culpability for the murder conviction depended on extended joint criminal enterprise and, for the arson, depended on accessorial liability. It is necessary to summarise the facts and, in so doing, outline Mr Smith's involvement in each crime. The Murder and Arson 3In the period leading up to the murder of Luke Ogilvie, the offender, Mr Smith, met with three others (hereinafter referred to as "the co-offenders"). The co-offenders asked Mr Smith whether he knew anyone who sold "drugs and ... had heaps of cash". Mr Smith knew the co-offenders and was aware that these co-offenders were "ripping over drug dealers and taking their cash and ... drugs". 4Mr Smith nominated Luke Ogilvie, the deceased. He did so in terms that informed the co-offenders that Mr Ogilvie was hurting his partner, who was Mr Smith's friend's mother (hereinafter "the mother"). 5Mr Smith not only nominated the deceased as the potential victim he then engaged in a series of telephone conversations with the mother and his friend, during which Mr Smith informed them that "the plan was to go out and steal money and drugs from him [Mr Ogilvie]". Mr Smith asked his friend to "come along"; "to go with" Mr Smith. However, his friend was unable to do so. 6Mr Smith had been to Mr Ogilvie's house before the day in question, but he obtained information from the mother and friend as to the whereabouts of the money, drugs and chemicals at the deceased's premises. That information was relayed to the co-offenders. 7Finally, Mr Smith went with the co-offenders to the deceased's premises and pointed out the house and the entrance thereto. 8All of the foregoing derives from the police interview with Mr Smith, tendered (Exhibit F) during the trial. That interview also establishes that Mr Ogilvie was very conscious of his own security and aggressive in protecting or defending it, and in possession of one or more guns, such that the assailants had to be careful. 9Mr Smith's involvement in the events at the premises is a matter of some dispute. The Crown, at trial, relied on the presence of Mr Smith's blood in the front of the car, on the handle and the accelerator pedal and his prints on the window frame, together with knowledge of events that seemed to have occurred after, on Mr Smith's version at the trial, he had left the premises. 10Nevertheless, the Crown accepted, and the evidence does not establish otherwise, either to the requisite standard or at all, that Mr Smith played no part in the occasioning of any bodily harm. Nor was the agreement between Mr Smith and his co-offenders one that included the killing of Mr Ogilvie or occasioning him grievous bodily harm. 11Summarised, what occurred at the premises was, on the evidence in the trial, that on arrival at the premises, Mr Smith directed the co-offenders up the driveway and the following events occurred. 12Mr Ogilvie confronted the offenders on their arrival. The car in which they drove to the house was used to ram the house. The co-offenders assaulted the deceased and hit him over the head. He was kicked and assaulted extremely violently. He was rammed against the car. The deceased was run over in the car seemingly deliberately. 13The level of known resistance to intruders, the possibility that Mr Ogilvie was armed and the intention to rob him of his money and drugs was known to Mr Smith. Mr Smith also knew of his co-offenders' propensity for violence. In those circumstances, the jury has drawn the inference, as do I, that Mr Smith contemplated that one or more of his co-offenders might form the intention to inflict grievous bodily harm and that, as events unfolded, that intention was formed and implemented, causing death. 14There was an issue at the trial as to the cause of death. I accept, as did the jury it seems, that, notwithstanding the absence of scientific evidence pinpointing precisely the cause of death, that the violent assault and the deliberate running over of the deceased caused death. This was also the view expressed by Mr Smith and by his co-offenders, at or about the relevant time. 15In the evidence at trial, Mr Smith contended, through the ERISP, that he left early in the events and was later collected and arrived home. At sentence, as a result of a post-verdict interview with police, the evidence was that Mr Smith was present during the whole of the foregoing events. I accept the later version. The earlier version was inconsistent with other comments and observations which Mr Smith witnessed. 16Some time after returning home, Mr Smith was visited by his co-offenders. They made clear to him that they were returning to the premises in order "to clean up" the evidence. The evidence would have included, what was thought by all of them to be, the body of the deceased, although no such admission was forthcoming. 17Mr Smith refused to return to the premises, but provided a jerry can for the stated purpose. The co-offenders returned, destroyed the deceased's home and significantly incinerated the deceased's body. The provision of the jerry can gave rise to the accessorial liability for the arson. 18It is unnecessary to recite the facts in any greater detail. Mr Smith was engaged in a joint criminal enterprise with his co-offenders to rob and assault the deceased. He contemplated that one or more of his co-offenders would form the intention to inflict grievous bodily harm, which they did. Death was occasioned and Mr Smith is guilty of murder by reason of an extended joint criminal enterprise. He was an accessory to the offence of arson. 19I accept the foregoing beyond reasonable doubt. I also find, on the balance of probabilities, that Mr Smith did not occasion any physical violence on the deceased. Further, he did not expect the deceased to be home but the agreement was to rob him, and assault him, whether or not he was at home. 20I also find that Mr Smith had no intention, initially, of obtaining financial gain from the robbery. His motives are not totally clear, but most probably included teaching the deceased a lesson regarding the treatment by the deceased of the mother. It may also have included, but it is unnecessary so to find, the existence of a relationship between Mr Smith's girlfriend and the deceased for a time during Mr Smith's previous period in prison. 21In the foregoing circumstances, I consider the objective criminality of the murder to be in the lowest possible category. There are, of course, aggravating features, including the planning of the crime and the fact that it was committed in company at the home of the victim, while Mr Smith was on conditional liberty. I turn then to the subjective circumstances. Subjective Circumstances 22I have received, on sentence, the reports of Mr Borenstein, Clinical Psychologist and Dr Westmore, Forensic Psychiatrist. Each is to similar effect. 23Mr Smith was a chronic user of drugs as was his then partner. He was described when a child as suicidal, suffering Attention Deficit Hyperactivity Disorder and was medicated with Dexamphetamine and Ritalin and antidepressant medication from the age of 10 until 16. He commenced drug abuse thereafter. He had commenced using cannabis at the age of 13. 24He has now been in a new relationship with a woman who is not a drug user and who has a young daughter. 25Mr Smith, who was born in Tweed Heads, has four siblings, each his father's child but with different mothers. His father is a Vietnam veteran with mental health issues. His parents divorced when he was 5. 26Mr Smith was bullied as a child and is unable to read or write, partly as a result of avoiding school due to that bullying. At 13 years of age, Mr Smith was sexually abused over an extended period. 27On testing, Mr Smith's reading ability was less than that of a 6 year old. He has extremely severe levels of stress, anxiety and depression. He is likely to be suffering brain damage. These factors, according to Mr Borenstein, "would have interfered with his judgment and decision-making ... on the day of the offence". He was also using drugs at the time of the offence. 28Mr Smith is currently in protection and shares a cell because of self-harm fears. 29Dr Westmore has diagnosed Mr Smith as suffering polysubstance abuse (although now in remission), alcohol abuse (also in remission) and depression/anxiety disorder, including episodes of depression. Dr Westmore has expressed the opinion, following Mr Smith's cessation of drug and alcohol use, that the risks that Mr Smith will re-offend are "reduced considerably if, on his release, he can continue to attend a community based drug rehabilitation service". Mr Smith has not previously undergone rehabilitation. Dr Westmore makes clear that Mr Smith will require significant and more extended supervision in the community in order to reinforce rehabilitation. 30I accept both reports and the opinions expressed therein. 31Mr Smith has a criminal history, which includes acts of violence in a domestic setting and otherwise. Nevertheless, the history is not extensive and clearly reflects his previous drug and alcohol abuse. 32Mr Smith gave evidence at the sentence hearing during which he expressed contrition and remorse. He was, and is, genuine. His evidence confirms the history expressed in the expert reports. He is in protective custody because of the assistance given to authorities. 33The Crown submits that the contrition is not genuine and cites the plea of not guilty and the continuing failure to accept guilt. In the circumstances of this case, the Crown's submission is rejected. Mr Smith accepts responsibility for the death of Mr Ogilvie, but has difficulty understanding criminal culpability, as distinct from moral responsibility, in circumstances where he has not occasioned any injury. 34Mr Smith made disclosures of most, if not all, of the facts that gave rise to his convictions prior to the trial, which I take into account to his credit: s 22A of the Crimes (Sentencing Procedure) Act 1999. I also take account of the assistance provided, although reduced significantly because of its lack of utility. None of the assistance relates to the future. Nevertheless, it led to his own convictions, to harsher custodial conditions for him and to a risk to him and his family: s 23 of the Crimes (Sentencing Procedure) Act. 35Further the trial has been conducted, on the accused's instructions, in a manner which has narrowed the issues considerably. I do not consider this aspect to take the matter further, because it is encompassed in the pre-trial disclosure and assistance aspects to some extent. Sentencing Principles 36As is specified by s 3A of the Crimes (Sentencing Procedure) Act, the purposes of sentencing any offender, even those charged with murder, seek to reflect what are often, if not necessarily, conflicting goals. In serious crimes such as murder, the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform. 37Each of those factors, particularly the protection of the community, personal and public deterrence, and punishment, must have regard to the gravity of the circumstances viewed objectively, within the range of crimes that may fall within the offence charged. The objective seriousness of an offence points most obviously to the factors that require protection of society, deterrence of the offender and of others who might be tempted to offend, and to retribution and denunciation. 38Reform or rehabilitation may also be significantly affected by the objective circumstances of the offences, but reform is a factor affected most obviously by the subjective circumstances and the capacity for rehabilitation. That capacity for, and the likelihood, if any, of, rehabilitation in turn impacts upon the degree to which a sentence is fixed that ensures the protection of society and the personal deterrence of the offender. There is usually no single correct sentence and the often-complicated interplay of considerations of guideposts points in different directions: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. Consideration 39Murder is the most serious of offences, with the maximum sentence being life imprisonment and the standard non-parole period being 20 years' imprisonment. A full-time custodial sentence is warranted. The maximum sentence for the arson offence is 11 years' imprisonment. Allowance must be made for the matters already mentioned. 40As earlier stated each of the murder and arson are, within those offences at the lowest end of the scale. That is not to underestimate the enormity of the loss of life and the loss to the deceased's family. But, on the evidence in these proceedings, the co-offenders, rather than Mr Smith, are primarily responsible for that. 41I have read the Victim Impact Statement and acknowledge the tragic loss that can never by replaced. Mr Ogilvie's family can never again enjoy his company and his support and have been denied the enjoyment of his full life. 42For the reasons already given, particularly the need for rehabilitation and other matters outlined in the expert reports, I find special circumstances associated with Mr Smith's need for a longer period of supervision in the community in order to effect rehabilitation. I allow 1 year and 10½ months of custody prior to the grant of bail and the sentence will be backdated that amount from the date of verdict at which time Mr Smith was again imprisoned. Sentence 43Graham Keys Smith, you are convicted of murder in that, on or about 26 March 2010 at Bilambil in the State of New South Wales, you did murder Luke Charles Ogilvie. And you are convicted of arson in that, on or about 26 March 2010 at Bilambil in the State of New South Wales, being in company with three other named persons, you did intentionally destroy by fire the dwelling house at xx xx Road, the property of Luke Charles Ogilvie. For the offence of intentionally destroying the dwelling house by fire, you are sentenced to 2 years' fixed imprisonment commencing 19 October 2010 and concluding 18 October 2012. And for the offence of murder you are sentenced to a non-parole period of 10 years commencing 19 April 2011 and concluding 18 April 2021 with a remainder of term of 4 years' imprisonment concluding 18 April 2025. You are first eligible for release on parole on 18 April 2021. ********** 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. Decision last updated: 19 July 2013