Regina v Garry Smale [2005] NSWSC 903

Regina v Garry Smale [2005] NSWSC 903

The prisoner was guilty of murder under s18(1) Crimes Act as a participant in a joint criminal enterprise, with knowledge of the loaded gun and foreseeability that it could be discharged during the robbery, justifying a substantial sentence though less than the principal offender's as he was not present for the shooting.

Parties
Prosecution: Regina; Defendant: Garry Anthony Smale
Jurisdiction
Australia
Judgment Date
26 August 2005
Procedural Posture
Criminal / Sentencing Judgment
Outcome
convicted and sentenced
Legal Topics
Murder, Felony Murder, Joint Criminal Enterprise, Sentencing, Discount for Plea, Use of Firearm in Robbery
Criminal Law Murder Felony Murder Joint Criminal Enterprise Sentencing Discount for Plea Use of Firearm in Robbery

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Parties

Regina

Prosecution

Garry Anthony Smale

Defendant

Procedural Posture

Criminal / Sentencing Judgment

Legal Issues

  1. 1 Whether the prisoner was guilty of murder under felony murder provisions when co-offender discharged a firearm during a robbery
  2. 2 Appropriate sentence for the offender who did not fire the fatal shot but participated in the robbery with knowledge of the loaded firearm

Ratio Decidendi

The prisoner was guilty of murder under s18(1) Crimes Act as a participant in a joint criminal enterprise, with knowledge of the loaded gun and foreseeability that it could be discharged during the robbery, justifying a substantial sentence though less than the principal offender's as he was not present for the shooting.

Court Disposition

convicted and sentenced

Orders

  • The prisoner is convicted as charged.
  • The prisoner is sentenced to imprisonment for a term of 18 years commencing 18 March 2002 and ending 17 March 2020. A non-parole period of 13 years and 6 months is set.