R v Cairney (No 23)

1. [1]

   HIS HONOUR: On 27 June 2025, after a trial lasting over 4 weeks, a jury of 12 by its verdict of guilty convicted Paul Cairney, the offender, of the murder of Jason Smith, the deceased. It is now my task as the trial judge to sentence the offender for that crime.

2. [2]

   The maximum penalty for the offence of murder is life imprisonment (section 19A of the Crimes Act 1900 (NSW). I am empowered to impose a lesser term of imprisonment of a specific term (section 21 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”)) unless the offender’s level of moral culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence (Sentencing Act s 61). This case does not fall into that extreme category, nor have the prosecution sought to argue to the contrary.

3. [3]

   It is also important to bear in mind at the outset that murder is an offence attracting a standard non-parole period (Sentencing Act s 54A). The period applicable to this case is one of 20 years. While I will not be imposing a life sentence in this case, I am required to bear in mind that the maximum penalty and the standard non-parole period are important guidelines to be borne in mind when fixing the appropriate sentence for this offence of murder and this offender (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39).

4. [4]

   A basic principle of sentencing law is that the sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (Veen v The Queen [No 2] (1988) 164 CLR 465 at 490-491; Hoare v the Queen (1989) 167 CLR 348 at 354). It is necessary for me to detail the facts of the offending as I find them to be from the evidence I heard at the trial to enable that assessment to be made (R v Isaacs (1997) 41 NSWLR 374 at 377-378).

5. [5]

   In a jury trial for a serious criminal offence, the fact-finding role of the jury and the judge is different. The jury are concerned with the question of legal responsibility for the charge. The trial judge, when it comes to passing sentence on an offender who has been convicted by the jury is concerned fundamentally with questions of culpability. For this reason, I am required to make my own assessment of the facts from the evidence led at the trial for the purpose of sentencing. However, the facts, as I find them to be, must be consistent with the jury’s verdict of guilty. It is not my function to attempt to pierce the veil of confidentiality of the jury room in a vain attempt to work out what the jury must have thought or to otherwise second-guess them. I must make my own mind up. But the verdict of guilty operates as a significant restraint upon my fact-finding powers.

6. [6]

   By way of example, at his trial there was no issue that the offender, by his act of stabbing the deceased once with a knife caused his death, nor was there any real issue that when he stabbed the deceased he had the intention of at least injuring him. The real issue was whether the offender was acting in self-defence.

7. [7]

   By their verdict of guilty, the jury must be taken as having been satisfied beyond reasonable doubt that the Crown had negatived or excluded self-defence. Moreover, in the discharge of my duty at a murder trial, I left to the jury’s consideration the alternative verdict of manslaughter on the basis of the partial defences of excessive self-defence or extreme provocation. Acceptance of either would result in a verdict of guilty to manslaughter rather than murder. By their verdict the jury must be taken as having been not only satisfied beyond reasonable doubt that the offender had the requisite intent for murder, but also that the Crown had negatived or excluded self-defence and each of the partial defences of excessive self-defence and extreme provocation. These then are the limits upon my fact-finding powers for the purpose of sentencing the offender.

The Facts of the Offending

1. [8]

   There was no dispute at the trial that the offender stabbed the deceased at about 6:32 p.m. on 18 December 2022. The offender inflicted a single stab wound with a large kitchen knife penetrating the deceased’s body at a point above his right collar bone. The wound was neither deep nor wide, and from the expert evidence of Dr I’Ons, the forensic pathologist who carried out the postmortem examination on the deceased and who gave expert testimony at the trial, infliction of the wound did not necessarily involve the application of much force.

2. [9]

   Dr I’Ons explained the anatomy involved in the mechanism of the death of the deceased. A major artery passes just below the point of entry of the offender’s knife. This is the subclavian artery supplying oxygen rich blood from the heart to the head, neck and arms. There are two, one on the left side, and one on the right side of the chest.

3. [10]

   Dr I’Ons also explained that the penetration of the offender’s knife caused a rupture of the artery causing a fairly rapid loss of blood, by blood spurting through the wound. Usually, a large flow of blood under the release of normal blood pressure would be fairly immediate, but not always, as I understood his evidence. It is possible that there may be some short delay before the blood loss commences. I mention this now because it may be a significant point relating to the nature of the offending to which I will return.

4. [11]

   The stabbing occurred in the yard of premises on Turner Esplanade, East Corrimal, a northern suburb of Wollongong. The property was occupied by the offender’s de facto wife of 30 years, Sandra Ponfield. Ms Ponfield resided there with a young person who was also a witness at the trial. The offender also mostly lived there, but he usually gave an address in nearby Bellamby as his residence. This was the home of his brother and his brother’s family.

5. [12]

   The offender was nearly 52 years old in December 2022, as was the deceased. The offender and the deceased had known each other since their teenage years and had at different stages of their lives been close friends. They had not been in contact for a very lengthy period of time before renewing their acquaintance when the deceased moved back to the Illawarra area, about a month before the murder. At that time, the deceased’s circumstances were that he was residing in a caravan-like structure erected on a box-trailer which he towed with an aging Ford F 100 Utility vehicle. He had been camping in his caravan in a nearby caravan park but was required to move on. The offender and Ms Ponfield agreed that he could park the caravan in the carport at the Turner Esplanade premises temporarily while, I infer, he looked for something more permanent.

6. [13]

   The deceased used the power from the home strung out by a cable, the kitchen and I infer also the bathroom. While the offender had his own substance use issues, the deceased abused alcohol, possibly other substances and became voluble and apparently obnoxious when intoxicated, as he frequently was. His volubility apparently caused complaints from neighbours. The evidence about this is not entirely clear, but it seems he soon wore out his welcome. While there is some evidence to suggest that there had been an expectation that he might continue to live at the Turner Esplanade premises over Christmas and the New Year, it is apparent that before 18 December 2022, his license had been revoked and he had been asked to move on, but had neglected to do so. These events precede the narrative of events on the afternoon and early evening of 18 December 2022, the subject of direct evidence at the trial. They largely arise out of accounts given by the offender to investigating police after he had been cautioned.

7. [14]

   I need to exercise care in relying upon the offender’s account because the jury must have rejected much of it as a possibly true version, given their guilty verdict. The matters I have just recounted are not inconsistent with the verdict.

8. [15]

   The direct evidence commences on the morning of 18 December 2022. The deceased was pulled over by police for a random breath test which was positive. He was taken back to the police station where he was charged with a driving under the influence offence. His vehicle was left parked at the side of the road. After he was processed at the police station and released, he was unable to locate his car. During his search for it he met a Mr Constable, who happened to be visiting a friend who lived on the route that the deceased was following. They had a conversation and Mr Constable decided to help the deceased locate his car. He provided a bike that the deceased could ride and Mr Constable accompanied the deceased on his own bike.

9. [16]

   Mr Constable gave evidence at the trial. I regret to say, I found him to be a singularly unimpressive witness. I would be reluctant to make any finding which depended to any degree upon his evidence. When the deceased and Mr Constable had searched unsuccessfully for a period, the deceased telephoned police to report his missing car. Then in the company of Mr Constable, he decided to attend the Turner Esplanade premises to make enquiries about the whereabouts of his car of the offender and possibly Ms Ponfield. It appears that the deceased had formed the view that as his car had disappeared, the offender might have had something to do with it. Other than perhaps to say that the formation of this opinion by the deceased is evidence of the bad blood which had already soured his recently renewed relationship with the offender, there was absolutely no evidence led at the trial providing any reasonable grounds for the deceased’s suspicion.

10. [17]

    The Turner Esplanade premises have a dual frontage. Although the address is Turner Esplanade, its front door is appurtenant to a grassy area referred to as the common, which is on Sellers Crescent. Ms Ponfield’s home is a townhouse, and other similar dwellings are grouped around the common. It seems to me to be further evidence of the already soured relationship that the deceased knocked on the front door as a stranger or visitor might, rather than entering from Turner Esplanade as a person still residing under the carport would. When he knocked, the door was opened by the young person. Neither the offender nor Ms Ponfield were home. Although controversial, I am satisfied that when the deceased attended the premises, he had a fruit drink bottle containing a mixture which the evidence later established was akin to 2-stroke fuel, obviously an inflammable substance. On a second knock on the door asking for Ms Ponfield’s phone number, the young person noticed the juice bottle and said that Ms Ponfield had left her phone at home.

11. [18]

    The offender and Ms Ponfield returned home shortly after the deceased’s second visit. He and Mr Constable approached a third time. Mr Constable demanded to know the whereabouts of the deceased’s car.

12. [19]

    A lot of what was essentially context evidence was called about what descended into an altercation on the Sellers Crescent side of the dwelling. As happens when a number of lay witnesses observe events from different perspectives, not all of the evidence was consistent. I do not regard it as necessary for me to either detail all of the evidence in this regard or to make any attempt to resolve the differences and inconsistencies. It is sufficient for me to say that the confrontation soon descended into a shouting match between the offender and Ms Ponfield on the one side and the deceased and Mr Constable on the other. The shouting match further descended into pushing and shoving at least involving the deceased, the offender and Ms Ponfield. The pushing and shoving soon descended into attempts to exchange punches, many of which were air swings. I am not making light of this, the importance of this evidence to my mind is the extent to which it shows the mutual bad feeling, mistrust and aggression among them. Mr Constable seems to have contributed to the aggression verbally only. At one stage, the offender armed himself with a baseball bat and Ms Ponfield armed herself with a stick. The offender, on some witness accounts, struck the bike the deceased had arrived on with the baseball bat. Video evidence showed him swinging it in the direction of the deceased and on some accounts, he made contact with the upper body of the deceased. The motive of the offender was to get the deceased to leave. The motive of the deceased seems to have been his insistence that the offender and Ms Ponfield knew something about the whereabouts of his car. It seems that the deceased’s dog was also missing. The evidence about that, such as it was, was that the dog had attacked a neighbour’s cat and was impounded. Nothing turns on this. My own impression, in any event, is that there was much aggression on either side. The altercation was broken off by the exchange of much yelling, consisting doubtless of recriminations and various threats.

13. [20]

    It was quite clear to me that the offender and Ms Ponfield were intent on evicting the deceased from the premises. The altercation seems to have ended at about 5:42 p.m., according to the compilation of video evidence gathered painstakingly by the police from CCTV cameras on surrounding premises and from footage recorded by witnesses on their mobile devices.

14. [21]

    Much of what is contained on that compilation (Exhibit O), consists of footage from a dashboard camera of a four-wheel drive vehicle parked on the side of Turner Esplanade just to the west of Ms Ponfield’s driveway. The camera was motion responsive. From this footage it can be said that at 5:51 p.m. the offender opened the carport gate and pulled the deceased’s caravan from under the carport and out onto Turner Esplanade, leaving it on the side of the road perpendicular to the grass nature strip. He made a number of trips from the carport to the trailer carrying the deceased’s belongings which he stacked alongside the trailer.

15. [22]

    At about 6:15 p.m. the deceased returned to the premises this time on foot via Turner Esplanade, walking from the east. There was some sort of verbal exchange between the deceased and the offender, which I doubt would have been friendly. The deceased then began to move more of his belongings out of the carport and placed them in or near the caravan. At about 6:17 p.m. the offender attempted to deny the deceased further access to the carport by arming himself with a long metal pole. The deceased was undeterred, and the offender lashed out at him with the pole.

16. [23]

    I think it is well at this point to refer to tendency evidence admitted in the defence case concerning the deceased. These were the subject of agreed facts (Exhibit 42) which were summarised from police facts used in the summary prosecutions of the deceased in various crimes involving violence. There is also a video of him displaying very overt aggression to another resident of a marina where he was living in late 2021 (Exhibit 43). The evidence was introduced to establish two tendencies. First, a tendency to provoke physical confrontations, including when intoxicated. Secondly a tendency to engage in physical confrontations, including when intoxicated. The fact that the deceased was intoxicated at the time of these events in and about the Turner Esplanade premises was the subject of uncontested evidence. The deceased’s blood alcohol reading after his arrest earlier that day was one of 0.125, which would place him high in the mid-range for PCA offences. There was also lay evidence concerning his apparent intoxication, which I would accept. I remind myself that the tendency evidence is not about the deceased’s criminal record or aspects of his character, which are irrelevant. It is simply a factual question about his tendency to conduct himself in a certain way in certain circumstances. I accept the evidence established those tendencies and that the deceased was acting in accordance with them as depicted in the video evidence (Exhibit O).

17. [24]

    As I have said the deceased was undeterred by the offender seeking to deny him entry to the yard of the premises armed with a pole. On my judgement this demonstrated that tendency to aggression in action. Not only was the deceased undeterred, but unarmed himself, he disarmed the offender and then chased the offender with the metal pole and striking him on the head. He threatened the offender again but did not strike him.

18. [25]

    Ms Ponfield entered the fray with a short pole with which she attempted to strike the deceased. He was able to evade her. She then picked up a larger metal pole and chased the deceased. However, once again he was able to disarm Ms Ponfield and, in the process, struck her on the head with the pole. The offender threw a short metal pole at the deceased. He then picked up another long pole, and the offender and the deceased were swinging their poles at each other.

19. [26]

    The deceased was able again to disarm the offender, and the offender and Ms Ponfield withdrew into the rear yard of the premises. The deceased continued organising his belongings.

20. [27]

    It is important to bear in mind, in the context of this disputation that Ms Ponfield and the offender were seeking to evict the deceased from their premises and deny him further entry to them, as they were entitled to do. Ms Ponfield sallied forth again with a brick, which she motioned as if to throw at the deceased, but the offender shepherded her back inside the yard. During these exchanges a lay witness heard a female voice, probably Ms Ponfield, yelling at the deceased to “go home” and saying, “We don’t want you here”.

21. [28]

    The offender and the deceased continued to argue with each other in a voluble manner as they moved the deceased’s belongings out from the carport. There is no evidence of what was being said at this time, but the deceased’s aggression boiled over again and he armed himself with an item from his caravan, which he was swinging at the offender as if intending to strike him with the item. The offender took refuge behind a neighbour’s car parked on the driveway. The deceased discontinued his chase, apparently returning the item to his caravan. There was considerable dispute at the trial about the nature of this item. The Crown contended it was an electrical cord, which may or may not have had a short power board attached. The defence argued it was something more sinister. A shark hook and tackle were suggested, but no such item was found by investigating police. They did locate two electrical cords.

22. [29]

    At about this time, the offender removed his vehicle from Turner Esplanade where it was then parked and relocated it to the Sellers Crescent side of the property.

23. [30]

    In the absence of the offender, the deceased made a number of trips to retrieve possessions from the carport, notwithstanding that his license had been withdrawn. At this stage the offender appeared carrying a large, black-handled knife, probably the eventual murder weapon. He threw and kicked items towards the deceased’s trailer and sought to deny the deceased re-entry to the carport by holding the knife out in front of him. There was no recording of whatever words were exchanged between them at this time. But their mouths appeared to be moving on the footage. Again, I doubt it was friendly banter. The offender returned to the yard. Notwithstanding the consideration that the offender had armed himself with a knife, the deceased determined to re-enter the carport area. I fully accept that he was unarmed. Had he armed himself with a knife as the offender contended in his police interview, it is difficult to accept that the Jury would have decided that the Crown had excluded at least the partial defences of excessive self-defence or extreme provocation. The dashcam footage shows that the deceased’s hands were empty on his last re-entry to the yard and they were empty when he re-emerged about one minute and ten seconds later in a badly injured and bloody state before staggering across Turner Esplanade where he collapsed mortally wounded.

24. [31]

    One of the many disputes of primary fact at the trial was where and when the fatal single stab wound was inflicted upon the deceased by the offender. The Crown relied upon the evidence of Mr Robert De Graff, who lived across the street from Ms Ponfield’s residence in a two-storey home, from which part of Ms Ponfield’s yard was visible but not the area under the carport roof. Mr De Graff’s account was that he saw the deceased enter the rear yard walking towards the dwelling from which the offender emerged and suddenly lashed out at the deceased with what looked like a short metal bar, but must have been the knife, striking him on the shoulder. This was significant because first, it suggested a sudden attack upon the deceased by the offender when the deceased was unarmed and presenting no obvious risk. Secondly, it was entirely inconsistent with the offender’s account to police, which was of a struggle between himself and an armed offender, necessitating him to reach for a knife to defend himself. I fully accept that that part of his version is entirely inconsistent with the jury’s verdict.

25. [32]

    While the offender’s account in that regard must be put to one side, it does not follow from this that Mr De Graff’s account should be accepted. While I did not regard him as in any way dishonest, I considered that Mr De Graff had been very effectively cross-examined by counsel then appearing for the offender, Ms Climo. Without detailing or summarising the cross-examination fully, she was able to point to significant inconsistencies related to the preparation of his police statement, which persuaded me that from within a day or two of the murder, there was a very large measure of deliberate reconstruction by Mr De Graff in consultation with his wife which demonstrated he was more concerned about what “must have happened” than the actual recall of events he claimed to have eye-witnessed.

26. [33]

    But more than this, an account that the offender stabbed the deceased near the backdoor was to my mind entirely inconsistent with the objective crime scene evidence. It is to be recalled that the shallow stab wound inflicted ruptured the deceased’s subclavian artery. Consistently with this and with resulting spurting blood there were widespread and large deposits of blood in the area covered by the carport roof and particularly near the dividing wall from the adjoining property. This is about as far from the backdoor as one could get across the yard. There were pools of blood on the carport’s concrete pad including in a dish under the roof. While samples were taken, not every deposit of blood was sampled by officers on the basis that it was obvious it was the deceased’s blood. This area was beyond Mr De Graff’s line of sight. The Crown sought to meet this very significant inconsistency between Mr De Graff’s account and the objective physical evidence by examining Dr I’Ons as to the possibility that there might be some delay between the rupture of the artery and the spurting of blood. The implication being that after the stab wound, the deceased may have staggered across the yard then under the carport before the spurting commenced. Dr I’Ons thought a delay was possible, depending on the circumstances. But in cross-examination he did not regard it as more probable than the spurting of blood under normal blood pressure immediately upon rupture of the artery.

27. [34]

    In material respects the evidence of Mr De Graff was also inconsistent with the evidence of the young person who resided at the Turner Esplanade dwelling. While she did not see the actual stabbing, she seems to have seen the immediate aftermath of it and at that time the deceased was holding his shoulder standing under the carport roof near the wall. She ran downstairs from her vantage point and saw the offender re-enter the house with a bloodied knife and blood on his clothing. It was common ground that the offender immediately took flight after the stabbing. He said he panicked, which is part of his account to police I am inclined to accept. But the point is had he and the deceased separated before the fatal blood loss commenced by spurting from the artery, it is very unlikely that his clothing would have been covered with the blood of the deceased. Although the young person did not see the stabbing, her evidence is more consistent with a finding that the fatal assault occurred under the carport. This is also the version most consistent with the forensic evidence.

28. [35]

    The Crown also relied upon a short recording of fourteen seconds duration made by a ring-camera from premises directly across from Turner Esplanade, forming part of Exhibit O. The recording was made between 6:32:03 and 6:32:17 p.m., a full forty seconds prior to the re-emergence of the fatally injured deceased from the rear yard of the dwelling. The only relevance of the recording was that an angry voice was heard, which the Crown put to the jury was the voice of the offender yelling angry obscenities as he stabbed the deceased.

29. [36]

    For my part I thought the words included “Get out, Smitty”, which is consistent to my mind with the offender being determined to deny the deceased any further access to the yard at the Turner Esplanade premises. Moreover, while 40 seconds may seem like a short time, it is in fact quite a long time for a fatally stabbed person to have been spurting blood heavily before emerging from the yard just before his collapse. To my mind, this relatively long lag is more consistent with an angry offender demanding the deceased leave, resulting in a struggle during which the offender stabbed the deceased to drive him away, as he told police. To my mind this seems a reasonably possible version of events. I fully accept the offender was unarmed. I accept the deceased remained armed with the knife he had brandished previously towards the deceased. However, the deceased had not been put off by the offender arming himself previously including when brandishing the knife. He had successfully disarmed the offender of a large metal pole on two occasions and given the tendencies, which I accept were animating him on this occasion, rather than exercising some discretion (which is often said with the better part of valour) he may have taken the armed offender on struggling to disarm him when the offender stabbed him intending to drive the deceased away, as he told police. It is perfectly commonplace to observe, and instruct juries, that one may reject and accept different parts of a witness’s evidence. While one must reject in large measure the offender’s account to police, it is not necessary to reject all of it. Afterall, he admitted to police that he stabbed the deceased. On my judgement this version could be true as a reasonable possibility. I am not satisfied beyond reasonable doubt that Mr De Graff’s account is accurate. I should say I do not regard this version as the offender acting in self-defence. Rather he was ejecting the deceased while armed with a knife with which he stabbed him.

30. [37]

    While the Crown left the case with the jury on the basis the evidence supported either an intent to kill or inflict grievous bodily harm, I am not persuaded of an intent to kill beyond reasonable doubt. Doubtless, the jury accepted that the offender had the intent necessary as an element of the crime of murder, however I do not accept beyond reasonable doubt the offender intended to kill the deceased. Instead, I am satisfied that he did intend to inflict grievous bodily harm upon him. The events of the afternoon and early evening certainly suggest both men were angry with each other. The account the offender gave to the police is an admission that he deliberately stabbed the deceased with the intention of driving him away. I am not of the view that one would expect a lay person, let alone the offender, to appreciate that a shallow stab wound to that area of a person’s body was likely to be fatal because of the location of a major artery. Even so, given the jury’s verdict, I am satisfied that he intended to inflict really serious bodily injury when he stabbed the deceased, which injury proved fatal.

Victim Impact Statement

1. [38]

   Before moving on to deal with the other matters central to sentencing, I wish to record that I had the benefit of receiving a victim impact statement prepared by the children of the deceased, Jason Smith, and read by his daughter, Ms Nakita Smith. I must say, while she was understandably emotional, Ms Smith read the statement on behalf of her siblings with great dignity. I am satisfied that the six children and three grandchildren of the deceased loved him deeply, while acknowledging that he was not a perfect man. Who is? I accept that he was a wonderful father to his children and grandfather to his grandchildren who cared deeply for his family. I fully accept, as his children say, that the life of the deceased mattered and that the way it was taken from him has left a permanent scar on the family. I accept that each member of Mr Smith’s family will carry their loss every day for the rest of their lives. Murder as the most serious offence in our criminal law protects the equal dignity and sanctity of human life, regardless of any imperfection of character or other short-comings.

2. [39]

   As the Crown have requested, I am empowered to take the loss suffered by the family victims into an account as an aspect of the loss suffered by the whole community when a life violently taken from us. On behalf of the Supreme Court I offer my condolences to Mr Smith’s family.

Objective Seriousness

1. [40]

   I turn now to the assessment of the objective seriousness of the offending, which as I have said, is a central consideration for the purpose of the law of sentencing. The Crown have submitted that the seriousness of the offending is high. In summary, they point to the following matters: the offending occurred in the context of a protracted altercation and that the offender was one of the initial aggressors; the deceased was vulnerable, given the loss of his vehicle and the resulting inability to remove his caravan and other belongings from the Turner Esplanade premises; the offender armed himself with a knife when he knew the deceased to be unarmed at the time he entered the yard for what was their final confrontation; the deceased had been stabbed above his collarbone resulting in the rupture of the subclavian artery; and the offender’s immediate departure from the premises left the deceased with no apparent means of assistance in a severely injured state.

2. [41]

   Mr Stratton SC, who appeared for the offender on sentence (but not at the trial) submitted that the objective seriousness was below the midrange for murder. He emphasised that this was not a case of an intention to kill, but rather the somewhat lesser intent of infliction of serious bodily injury. He argued that the knife wound had been inflicted during the course of an extended altercation, where there had been a considerable degree of provocation by the deceased, even if falling short of the partial defence (Sentencing Act s 21A(3)(c)). Senior Counsel submitted that only a single knife wound was inflicted to a relatively shallow depth involving the exertion of little force to an area in the body where a lay person would not assume that a wound would necessarily be fatal.

3. [42]

   It is also the case that there is no evidence of planning or premeditation. Although the stabbing occurred during a protracted period of argument and fighting, the actual fatal wounding was entirely spontaneous. The offender had already armed himself with a knife in response to the deceased’s aggression but had contented himself with brandishing it in an attempt to ward the deceased off. Mr Stratton argued that there had been considerable provocation by the deceased. He had been a guest at the premises, but his license to stay at the home had clearly been withdrawn because of his behaviour. He was free to leave the vicinity of the offender’s home at any time, but despite the strong expression by the offender and Ms Ponfield that the deceased was not to enter the premises including the curtilage of the premises, he persisted in defying their wishes in that regard.

4. [43]

   It was also submitted that the deceased had made threats, at least against the property of the offender and Ms Ponfield, although the evidence about this is conflicting.

5. [44]

   I am persuaded by Mr Stratton that the objective seriousness of this offending is at the lower end for the crime of murder. All murder offences are serious given that by his voluntary act, the offender has taken another life as the consequence of seeking to inflict at least serious bodily injury upon the victim. Murder is an inherently grave offence. However, sentencing an individual offender for a particular offence involves weighing and assessing the objective seriousness of the particular offence because for the purpose of the law of sentencing and as a matter of logic, not all murders are the same.

6. [45]

   I accept that one cannot divorce the fatal act perpetrated by the offender from the whole course of events during the late afternoon and early evening of 18 December 2022. As I have already remarked, it is clear that the mutual bad blood between the offender and the deceased did not commence with the deceased and Mr Constable attending the Turner Esplanade premises looking for the deceased’s car. In some respects that is a fairly arbitrary starting point to select if one is to understand the reasons for the mutual animosity. However that may be, it is clear that the aggression between the offender and the deceased escalated during the course of their encounters in the early evening on Turner Esplanade. It is also clear that the deceased got the better of the offender (and so far as it may be relevant, Ms Ponfield) during the course of those encounters. He was able to disarm the offender twice, Ms Ponfield once and threatened and chased the offender armed with an offensive weapon of some description prior to the offender arming himself with the knife. I am satisfied that the offender obtained the knife in the first place not to use it, but to use the threat of it to keep the offender off the Turner Esplanade property, as he had been evicted and his license revoked. As with the other attempts through makeshift offensive weapons to threaten the deceased and keep him off the property, the deceased was entirely unfazed by the presence of the knife.

7. [46]

   I fully accept that the deceased entered the premises for the final fatal confrontation as an unarmed man. I think it is at least reasonably possible that he was of the view that, knife or not, he could get the better of the offender as he had already done so more than once earlier.

8. [47]

   As I have said in my factual findings, I am satisfied that it is at least reasonably possible that there was a confrontation and perhaps a struggle for possession of the knife during the course of which the deceased was yet again attempting to disarm the offender, but which ended with the offender stabbing the deceased with the intent to inflict really serious injury and not in self-defence, which as circumstances would have it, proved to be a fatal injury. That the accused took immediate flight, to my mind, was due to panic.

9. [48]

   For what it’s worth, while he did not render assistance to the deceased, Ms Ponfield and the young person remained at the premises and they sought to obtain assistance by dialling 000. It is difficult to know what actual assistance could have been rendered by untrained lay people in the circumstances given the nature of the injury in fact inflicted. Very regrettably given the ruptured artery there was a certain inevitability about the outcome.

10. [49]

    For these reasons I am of the view that the objective seriousness is lower in the range for the crime of murder.

Statutory Aggravating Factors

1. [50]

   Both the Crown and Mr Stratton accept that the offender’s offending was aggravated by the consideration it was committed in the presence of the young person (Sentencing Act s 21A(2)(e) and (a)). This is always a significant matter because the commission of such a serious crime in the presence of a child is likely to have a deleterious effect on the emotional well-being of the child and on the development of the child’s moral values.

2. [51]

   While I have taken the use of a weapon, namely the knife, into the assessment of objective seriousness generally, the Crown rely upon it as an aggravating factor: Sentencing Act s 21A(2)(c). Care is needed to avoid double counting. One needs to bear in mind that murders are commonly committed by use of a weapon, and I do not regard the use of a knife as significantly aggravating the offending beyond its inherent objective seriousness. I bear in mind that the offender obtained the knife partly in response to the deceased’s aggression towards him and in his attempts to keep the deceased out of the Turner Esplanade property.

3. [52]

   The Crown also rely upon the circumstance that the offence was committed in a home (Sentencing Act s 21A(2)(b)). It was certainly not the home of the deceased. He had been permitted to reside there on a short-term basis, but his tenure had already been lawfully terminated. In one sense it could be argued that he was then an intruder intent on exercising a self-help remedy to obtain whatever of his possessions may have been left in the carport.

4. [53]

   Authority binding upon me allows this aggravating factor to operate where the offending occurs in any home, not limited to that of the victim because homes are meant to be places of refuge (Jonson v R [2016] NSWCCA 286). The same authorities emphasise the provision does not require “that in all cases the fact that the offence occurred in a home will be an aggravating factor”. As Mr Stratton pointed out by reference to the leading authority, “it is necessary for the Court to conclude that, having regard to ordinary sentencing principles, it actually aggravates the offence in question”: Gore v The Queen [2010] NSWCCA 330; (2010) 208 A CrimR 353 at [29].

5. [54]

   I accept Mr Stratton’s argument that the consideration that the offending occurred in the home of Ms Ponfield, one usually shared by the offender, did not in these particular circumstance aggravate the offence.

Subjective Circumstances

1. [55]

   The evidence about the offender’s subjective circumstances is largely sourced from the report of Dr Richard Furst of 16 October 2025. While the offender chose not to give evidence on the proceedings on sentence, I am of the view that the contents of Dr Furst’s report are reliable and may be taken into account. I note that while the Crown take issue with some of the conclusions I am asked to draw from Dr Furst’s report, its contents are not challenged.

2. [56]

   As I have already said, the offender was born in February 1971. He was 51 years of age at the time of the offence and he is now 55 years old.

3. [57]

   He was raised in the northern suburbs of Wollongong. His father worked as a coal miner in the Illawarra region. However, he was brought up in a home where both parents were heavy drinkers, and his father was frequently violent towards his mother. His parents separated when he was 14 years of age.

4. [58]

   The offender attended Allambie Public School before moving on to Corrimal High School. He was not a successful scholar. He was active in sports but his behaviour at school was disruptive, and he was prone to fighting with other pupils.

5. [59]

   He claimed to have been sexually assaulted by a teacher at school.

6. [60]

   The offender commenced substance abuse at the age of 14 or 15, drinking alcohol and smoking cannabis in his teenage years. During his late teens and early twenties, he was drinking excessively and escalated his drug use to opiates to which he became addicted.

7. [61]

   As Dr Furst put it, his conduct became disordered during his teenage years. He was convicted of a number of juvenile offences and detailed in a juvenile detention centre, bail refused. He again claims to have been sexually assaulted by two different officers on two separate occasions.

8. [62]

   The offender has had a mixed employment history. He worked as a meat worker in an abattoir and on fishing trawlers as a young man, but I infer that his drug and alcohol abuse and his periods of imprisonment, to which I will return disrupted that. He performed work as a roof tiler for about three years between 2008 and 2011, but he has largely been on a disability support pension because of tendon injuries in his hand and chronic liver disease which has been treated with only partial success. Due to his opiate abuse, has been on a methadone program for about 30 years.

9. [63]

   He and Ms Ponfield formed a relationship when he was 27 years of age and that has been a stable relationship for both of them. Initially, when both were abusing drugs, they were homeless but as I say that situation has been stabilised for a long period of time.

The Offender’s Criminal History

1. [64]

   The offender does have a criminal history of around 11 offences as an adult. I am overlooking any offending as juvenile. Some of the offending involves crimes of violence such as assault, affray and assault police officer in the execution of his or her duty. The most serious of his offending is a conviction for sexual intercourse without consent in circumstances of aggravation against his then intimate partner in 1993. He was sentenced to a period of imprisonment of 4 years with a non-parole period of 2 years and 6 months. He was also imprisoned for a period of 3 months in 2000 for a combination of two counts of driving whilst disqualified and one count of driving under the influence of a drug. He was again sentenced to a maximum sentence of 6 months for a variety of different offences in 2003 and he was called up for breach of a bond in 2004 and imprisoned for 6 months. At the same time another sentence of 9 months was imposed for a break and enter offence. This was his last custodial sentence. His last offence, it is agreed, was one of common assault in 2006 for which he received a suspended sentence.

2. [65]

   I accept the Crown submission that the offender’s criminal record disentitles him to any claim for leniency. At the same time, it is not without significance that he had not committed any serious offence since 2006, given his previous record. That matter favours him.

3. [66]

   I should add that the offender has been in custody since his arrest on 18 December 2022 and he has been of good behaviour in that difficult remand environment. He has not infringed any rule of prison conduct or discipline during that period of time.

Mental Illness

1. [67]

   From Dr Furst’s report it is clear that the offender suffers from recognised psychiatric illnesses. It is clear that in the community before his arrest he had been receiving psychiatric treatment from a specialist and his General Practitioner for a period of 20 years or so. His principal diagnoses were depression and anxiety including a panic disorder for which he has received medication. Those difficulties have continued while he has been in custody and again, he has received medication appropriate to those conditions.

2. [68]

   Dr Furst is of the opinion that the correct diagnosis for the offender is a Complex Post-Traumatic Stress Disorder. The complexity, as I understand it, is related to associated symptoms of depression and anxiety. Dr Furst regards this condition as related to his sexual abuse as a juvenile and perhaps to his exposure to trauma in the home as a child.

3. [69]

   Dr Furst was of the view that the offender’s childhood disadvantage including witnessing domestic violence in the home and being subjected to physical abuse from his father, conflict with other students at school, substance abuse from an early age and sexual abuse contributing to his PTSD, contributed to his state of mind on the day of the offence.

4. [70]

   However, it needs to be borne in mind that apart from the PTSD, Dr Furst diagnosed a Personality Disorder with antisocial borderline traits consequent upon his disordered conduct as a juvenile. That condition probably operated in conjunction with the PTSD reducing his capacity for rational and calm judgement on 18 December 2022 and contributing to his conduct in fatally stabbing the deceased. It should also be borne in mind that Dr Furst diagnosed a Substance Use Disorder, particularly related to his opiate dependence and I do not regard that as being an operative matter on 18 December 2022.

5. [71]

   It needs to be borne in mind that I am not concerned with the question of legal responsibility. That has been determined by the jury. But I am concerned with the question of whether there are factors personal to the offender which may serve to reduce his moral culpability for the offending to any degree. It is in that context that his history of mental health impairment is relevant.

Moral Culpability

1. [72]

   There are a number of different levels at which moral culpability can be considered from an offender’s point of view. The Crown accept that the circumstances of the offender’s childhood bring into consideration the principles discussed in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. It seems to me that one should also bear in mind his PTSD is inextricably bound up, on the evidence of Dr Furst, in no small measure, with his background of childhood deprivation.

2. [73]

   The purposes of sentencing are complex and that the same factor may point in more than one direction as to its significance for the imposition of a lesser or greater sentence is well recognised. For instance, a personality disorder may bring into play the need for protection of the public. I have given these matters some considerable thought. Given the relatively long period of non-offending prior to 18 December 2022, I am of the view that the combination of factors to which I have referred leaving aside the Personality Disorder, are matters which establish that the offender’s moral culpability for this offending has been somewhat attenuated.

General Mitigating Circumstances

1. [74]

   I do not regard the history of childhood sexual abuse as a matter which on the evidence before me of itself provides any mitigatory affect for the sentence to be passed on the offender. It has obviously, in Dr Furst’s views, contributed to his mental health issues and I have taken those into account. Those mental health issues are also likely to make the offender’s time in custody harder than for other people. No one’s experience in custody is pleasant. But I am satisfied that notwithstanding, or perhaps because of, his previous experience of custody, the offender is bearing the burden of incarceration badly. He told Dr Furst, given his age no doubt, he fears he will die in gaol.

2. [75]

   Mr Stratton has submitted that I would find that the offender has shown evidence of remorse such that I would regard it as a mitigating factor. The evidence of remorse in the case is mixed. While the offender told police that he had lost his best friend and didn’t feel good about it, he also said he was glad he was gone. This may have been a function of his mental health. He did tell Dr Furst that he didn’t feel good about taking his friend’s life and that he has struggled emotionally over the last three years. That latter aspect may relate to the burden of incarceration, which is weighing so heavily upon him. He also wrote a letter in his own hand to the Court (Exhibit B on Sentence) referring to their previous friendship, the toll that the deceased’s death has taken on his mental health and expressing great sorrow about what happened. He also apologised to the deceased’s family for their loss.

3. [76]

   There are sometimes conceptual difficulties in taking remorse into account after a not guilty plea. Let me be clear, the offender, like any one of us, was entitled to plead not guilty and stand his trial. He suffers no penalty for that. But generally, a plea of not guilty may be inconsistent with remorse. Here, where the plea of not guilty was based upon self-defence there is less conflict between the two positions.

4. [77]

   Without disrespect to the offender, he is not an articulate man. His background, absence of scholastic achievement and other factors to which I have referred probably make it difficult for him to express himself in a compelling way. Making an allowance for those considerations I am prepared to accept that he has come to the position where he is remorseful for killing the deceased.

5. [78]

   The sentence for murder must necessarily be long, and the offender is now well into the upper reaches of middle-age. He has other health issues to which I will return. Given, as I have already said, that the longish period free from offending before 18 December 2022, I think he has some prospect of rehabilitation, and his age will militate against any further offending and certainly offending of this seriousness. His age also reduces the significance of his Personality Disorder so far as it might enhance the need for protection of the public.

The Sentence to be Passed

1. [79]

   I turn now to passing sentence on the offender. I will take into account all of the factors I have referred to so far by way of instinctive synthesis in arriving at the sentence to be passed. I will also have regard to the purposes of sentencing (Sentencing Act s 3A). Those particularly relevant to the present case include: retribution in the sense of the imposition of adequate punishment for the offence; accountability of the offender for the unjustified taking of the life of another; denunciation of his conduct; and recognition of the greatest harm that has been done to the deceased as the primary victim of this crime.

2. [80]

   General and specific deterrence remain important factors, although their salience is reduced because of the offender’s mental health considerations and the attenuation of his moral culpability. I repeat the salience may be reduced; it has not been eliminated.

3. [81]

   The sentence I impose must consist of a non-parole period and an additional term. The non-parole period is the minimum period which justice demands the offender serve in fulltime custody on account of his offending. The additional term makes up the maximum period the offender may be required to serve before his release. No one, least of all the offender, should assume that release upon the expiration of the non-parole period is a foregone conclusion. That will be a matter for the State Parole Authority in due course. While it is not for me to say, the offender’s best prospect of being released when first eligible will depend upon him continuing to be of good behaviour while in custody over the whole of his non-parole period.

4. [82]

   Mr Stratton has asked that I find special circumstances for the purpose of varying the statutory ratio between the non-parole period and the additional term. This would permit a shorter non-parole period to be imposed. It is not very common to make a finding of special circumstances when sentencing offenders for the crime of murder. This is because the statutory ratio itself generally provides for a fairly lengthy time in the community extending beyond the period during which supervision by Community Corrections is available. However, there are factors in this case that persuade me that there are special circumstances. Those factors relate principally to the offender’s general health conditions. He has been treated for many years for liver disease. This treatment has been partially successful only in as much as one disease has been eliminated but another continues. In the opinion of Justice Health psychiatrist, Dr Hearps, as recorded by Dr Furst, concern about the liver disease had been contributing to the offender’s depressive symptoms.

5. [83]

   I think it fair to say that while treatment for general medical conditions is available in custody, better more frequent care is likely to be had in the community. Moreover, as the offender ages in custody, his liver disease may well be a factor which increases the burden of his incarceration. In the circumstances, I propose to make a finding of special circumstances, and I will reduce the non-parole period otherwise called for by the imposition of the head sentence I propose.

6. [84]

   I am obliged to advise the offender that his offence is a serious offence for the purpose of the Crimes (High Risk Offenders) Act 2006 (NSW), which means that the Attorney General has the power to make an application to the Supreme Court for his continued detention, or supervision in the community after the expiration of the sentence which I will pass. Again, whether such an application will be made is not a matter for me, but it may depend upon whether the offender, as I have said, continues along his present path of good conduct in custody for the whole term of his sentence.

7. [85]

   As the offender entered a plea of not guilty and stood his trial he is not entitled to any discount on the sentence otherwise appropriate for his offending in all the circumstances. For the reasons I have given, the sentence I will impose is one of 20 years. I have decided to vary the statutory ratio because of my finding of special circumstances reducing the non-parole period otherwise applicable from 15 years to 13 years and 6 months. I backdate the commencement of the sentence to 18 December 2022 when the offender was arrested for the offence and taken into custody. He has remained in custody since solely for this offence.

8. [86]

   Paul John Cairney, by its verdict the jury have convicted you of the murder of Jason Smith. I sentence you to a term of imprisonment of 20 years, having the following components: