Smith v R [2015] NSWCCA 193

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Smith v R [2015] NSWCCA 193 Hearing dates: 12 June 2015 Decision date: 17 July 2015 Before: Leeming JA at [1]; Simpson JA at [2]; Hamill J at [75] Decision: (1) Leave to appeal against sentence granted;

(2) Appeal allowed, sentence imposed on 8 August 2014 quashed;

(3) In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 7 years and 6 months commencing on 12 February 2013 and expiring on 11 August 2020 with a balance of term of 2 years and 6 months expiring on 11 February 2023. Catchwords: APPEAL - sentence - manslaughter by shooting - self-defence, excessive force that inflicts death - Crimes Act 1900 (NSW), s 421 - whether conduct a reasonable response in circumstances as perceived by applicant - whether applicant believed deceased was armed with a gun - whether sentencing judge failed to identify the circumstances as the applicant perceived them - sentencing judge omitted to find the applicant perceived the deceased was armed with a gun and willing to use it against him - omission affected evaluation of unreasonableness of applicant's response - error established - applicant re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s 21A(3)(c) Crimes Act 1900 (NSW), s 418, s 419, s 421 Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Davis v R [2015] NSWCCA 90 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 Category: Principal judgment Parties: Graham Smith (Applicant) Regina (Respondent) Representation: Counsel: G Brady/A Rose (Applicant) N Adams SC/S Palaniappan (Respondent)