R v Smith [2021] NSWSC 825

R v Smith [2021] NSWSC 825

Mr Smith was to be sentenced on facts consistent with the jury's verdict: the jury did not find murder, excessive self-defence manslaughter, or an unlawful and dangerous act supporting manslaughter, but did find assault occasioning death whilst intoxicated under s 25A(2). The offence was objectively serious because it occurred in a home, involved use of a knife, and caused death, although the knife use and grave risk of death were not treated as separate aggravating features. Mr Smith's mental illness, lack of criminal record, good character, reasonable rehabilitation prospects, and low risk of reoffending mitigated sentence, but s 25B required at least 8 years' imprisonment and an 8-year...

Jurisdiction
Australia
Judgment Date
15 July 2021
Procedural Posture
Criminal Sentencing / Sentence Following Jury Verdict of Guilty of Assault Occasioning Death Whilst Intoxicated
Outcome
Justin Shawn John Smith was sentenced to imprisonment for 10 years and 8 months with a non-parole period of 8 years.
Legal Topics
['assault Occasioning Death Whilst Intoxicated' 'mandatory Minimum Sentence' 'mandatory Minimum Non Parole Period' 'intoxication' 'mental Illness' 'general Deterrence' 'rehabilitation']
['criminal Law' 'sentencing'] ['assault Occasioning Death Whilst Intoxicated' 'mandatory Minimum Sentence' 'mandatory Minimum Non Parole Period' 'intoxication' 'mental Illness' 'general Deterrence' 'rehabilitation']

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Procedural Posture

Criminal Sentencing / Sentence Following Jury Verdict of Guilty of Assault Occasioning Death Whilst Intoxicated

Legal Issues

  1. 1 ["What factual basis was consistent with the jury's verdict of guilty of assault occasioning death whilst intoxicated after acquittal of murder and rejection of manslaughter alternatives." 'What sentence should be imposed for an offence contrary to s 25A(2) of the Crimes Act 1900 (NSW).' 'How the mandatory minimum sentence and mandatory minimum non-parole period in s 25B of the Crimes Act 1900 (NSW) constrained the sentencing discretion.' "What weight could be given to Mr Smith's mental illness, lack of criminal record, prospects of rehabilitation, general deterrence, and absence of remorse."]

Ratio Decidendi

Mr Smith was to be sentenced on facts consistent with the jury's verdict: the jury did not find murder, excessive self-defence manslaughter, or an unlawful and dangerous act supporting manslaughter, but did find assault occasioning death whilst intoxicated under s 25A(2). The offence was objectively serious because it occurred in a home, involved use of a knife, and caused death, although the knife use and grave risk of death were not treated as separate aggravating features. Mr Smith's mental illness, lack of criminal record, good character, reasonable rehabilitation prospects, and low risk of reoffending mitigated sentence, but s 25B required at least 8 years' imprisonment and an 8-year...

Court Disposition

Justin Shawn John Smith was sentenced to imprisonment for 10 years and 8 months with a non-parole period of 8 years.

Orders

  • ['Sentence Justin Shawn John Smith to imprisonment for 10 years and 8 months commencing on 5 January 2019 and expiring on 4 September 2029 with a non-parole period of 8 years expiring on 4 January 2027.' 'The first date upon which Justin Shawn John Smith will become eligible for release on parole is 5 January 2027.']