Phillip John Smith
Sentenced to a minimum 13 years in August 1996
Parole declined March 2014
Has next hearing March 2015
NZ Herald story 4th December 2014
Radio New Zealand has reported that convicted murderer and child abuser Phillip Smith is on hunger strike. Smith is currently being detained in Auckland Prison in Paremoremo. He was caught in Rio de Janeiro on November 13 a week after fleeing New Zealand while on temporary release from Spring Hill Corrections Facility in South Auckland. He was serving a life sentence for murder and other violent crimes. Northern Regional Director for Corrections Jeanette Burns said at the weekend Smith had been put into segregation. She said Smith would be kept in a cell for 23 hours of day and allowed out for just one hour each day, adding that all ingoing and outgoing mail would be closely scrutinise and only non-contact visits allowed. Smith's lawyer, Tony Ellis, told Radio New Zealand this morning that prison officials had stripped away his client's dignity.
NZ Media and Entertainment story 29th November 2014
Convicted killer and child abuser Phillip Smith has been returned to New Zealand. Smith's flight to Auckland Airport from Santiago, Chile, landed at 4am. He was escorted from the plane and cleared through customs with police and was then transferred to a police prison van which took him to Auckland Prison in Paremoremo. Smith has been put into segregation in the maximum security prison. He will be kept in a cell for 23 hours of day and allowed out for just one hour each day. Northern Regional Director for Corrections Jeanette Burns said Smith would have all ingoing and outgoing mail closely scrutinise and would only be allowed non-contact visits.
Smith would be in segregation for "a period of time", she said, adding that he would be one of a number of prisoners under the most restrictive regime. Deputy Commissioner Mike Clement said he was grateful to have Smith back in custody. "I'd just like to take a moment and reassure the victims that he is back in custody and they're safe." He said Smith cooperated with the escorts and had gone through "a range of emotions". "If Mr Smith is disappointed about being brought back to New Zealand then that's tough luck." Ms Burns said Smith would be kept safe in prison. "It would be fair to say there are some prisoners that are not happy that the actions of Mr Smith interrupted their rehabilitation process," she said.
Mr Clement said new charges would likely be laid in the next few days. "There's no rush with that process, he's got a sentence to resume and has resumed," she said. "In the fullness of time we will know whether there are any charges further to the escaping charge that he will face and we will bring him back before the court when the time is right." Mr Clement said police were still investigating whether any charges would be laid in relation to other people assisting Smith's escape. "It's too soon for me to say whether there are people that are complicit to the extent that they'll face criminal charges." Ms Burns said Smith's mental state would assessed and monitored.
She said Corrections had fully accepted that Smith's release should not have happened and no staff were currently facing disciplinary actions. Most passengers on the LAN flight from Santiago this morning had no idea they were sharing a cabin with a murderer who fled New Zealand. Kiwi couple Simon and Jie Crosby had followed the news of Smith's escape before they left for their holiday in Brazil. Mrs Crosby saw Smith being escorted off the flight by four or five police officers. "He had his wrists together and a jacket covering them and two police officers either side of him," she said. Mr Crosby said Smith had looked "upset". The couple said they had no idea Smith had been on their flight. "We thought he'd have been deported before we arrived [in Rio]," Mr Crosby said.
Another New Zealander returning from a holiday in South America said she wasn't bothered by the fact Smith had been on her flight. "They've got to bring him back somehow. I'm just glad I didn't have to sit next to him." Another returning passenger said it was a shock to hear that a murderer had been on the plane. Smith was escorted from Brazil to Auckland by three New Zealand Police officers. Footage captured shortly before he boarded a plane at Rio de Janeiro Airport shows Smith grinning at a camera while pulling a peace sign, followed quickly by his middle finger. Smith was caught in Rio de Janeiro on November 13 a week after fleeing New Zealand while on temporary release from Spring Hill Corrections Facility in South Auckland.
He was serving a life sentence for murder and other violent crimes. Smith's lawyer said yesterday he believed it was not in the public interest to charge his client for escaping custody. Tony Ellis, who has acted for Smith in the past and received a call from him when he fled the country while on temporary release, said he expected Smith to call him after he arrived back in the country early today. He said he thought Smith would be feeling "rather low" about his return. "I would imagine that having successfully escaped and then being captured and then, worse still, being brought back to New Zealand, he could be in quite a poor state." He said if police were to charge him with escaping custody he could be taken to court this morning.
But laying a new charge wouldn't have any effect on Smith's punishment. He is serving a life sentence for murder and child sex offences. "The only real effect of charging him would be there's a public trial and then he gets five years' imprisonment, which effectively just means he can't apply for parole for the next five years, but there's not a parole board in the country that would let him out anyway. It's a waste of time," Dr Ellis said. He believed Smith could realistically be spending life behind bars, and a trial for escaping custody wouldn't change that. "On a straightforward, rational basis, I don't think it is in the public interest."
NZ Herald story 14th November 2014
Phillip John Smith, caught yesterday in Rio de Janeiro after fleeing NZ, has been transferred this morning to another prison in Brazil. Smith had been initially placed in the notorious Ary Franco Prison, but was transferred to Gericino Penitentiary - the largest public prison in Brazil. Smith was arrested in Rio yesterday, a week after fleeing New Zealand while on temporary release from Spring Hill Corrections Facility in South Auckland. He was serving a life sentence for murder and other violent crimes. It's not clear why he was moved to another jail. In other developments in the case, Inland Revenue also says Smith is guilty of defrauding the public of almost $50,000, Inland Revenue says.
The money he stole, while he was behind bars, remains missing. The department successfully prosecuted Smith in July 2012 of 12 charges of obtaining by deception involving $47,565 worth of refunds, a spokeswoman said today. Smith was sentenced to 15 months' imprisonment and ordered to pay reparation of $50 per week. "Inland Revenue undertook a large volume of bank tracing in order to identify where the refunds went but the funds were not able to be recovered." Smith arrived in Rio de Janeiro on Tuesday morning with a large suitcase and a backpack, checked into a youth hostel as James Paul Andrews from Brisbane and joked about finding himself a Brazilian girlfriend.
He paid $40 for two nights in a bottom bunk in a six-person dorm called the Ipanema room at the Cidade Maravilhosa, and for all intents and purposes was just another tourist in Rio de Janeiro. But the next morning, a staff member recognised him in a television news report about his escape. When he left to buy food, the employee decided to call the police. Officers swooped and the international manhunt for Smith, who skipped New Zealand while on temporary leave from Spring Hill Corrections Facility last Thursday, was over. His roommate spoke to the Herald soon after, saying he had been suspicious of Smith and was stunned to learn he had slept next to a "cold-blooded killer".
"It's terrifying," he said. "He seemed like a normal guy. I'm still trying to understand it. It's hard to believe we shared the same room." The man said a "single detail" gave away the fact something was amiss. "He said his name was James. And I noticed, sometimes, when we called 'James', it would take him some seconds to realise we were talking to him," said the man, who was badly shaken and did not want to be identified. "I could never imagine he was behind all those things." TAn employee of the Rio hostel recalled Smith checking in. He was quiet and polite and spoke no Portuguese, the staff member told the Herald. But they managed to joke together in English about his choice of shirt with the logo of Vasco da Gama, one of Rio's top football clubs.
"'Why are you wearing the shirt of such a rubbish team,' I asked him," the staff member said. Smith said he had come to Brazil to find a woman to marry and asked where he could find longer-term accommodation in Rio. The staff member never imagined they would see Smith's mug shot on the news the next morning. Moments after learning that James Andrews was a dangerous killer wanted by authorities in New Zealand, the staff member was told by Smith he was going to buy food. The staff member soon called police and by the time Smith got back, five Brazil federal police officers were waiting. Smith was on his own in the Ipanema room when the police arrived.
"Phillip," the staff member called, and Amith opened the door a "crack". "I've some guests here to see the room." Smith opened the door and moved back behind one of the bunk beds as several plain-clothes officers walked into the room. "What's your name?" one asked him. Smith lowered his head and looked at the floor. "Where are your documents?" the officer continued. Smith mumbled something, crouched down, and started rummaging through his suitcase. The officers then revealed who they were. "It's over. We know who you are," a federal officer said. They found his passport in his birth name, Phillip John Traynor, in his luggage and arrested him. "He was talking quietly when they led him away," the hostel manager said. "I couldn't hear him as I didn't want to get too close. The only thing I heard him say was, 'Don't hurt me', when they put the handcuffs on him."
Hostel guests told the Herald he had tried to convince one of his room-mates to drive him 400km to Sao Paulo, Brazil's largest city. That roommate and another checked out of the hostel, traumatised at having shared a room with a murderer. A 24-year-old Brazilian guest said Smith was very quiet. "I assumed that he had a job because he was on the computer the whole time." Smith was later remanded in custody to the notorious Ary Franco Prison, he was jailed under the name Phillip John Traynor, the name on the passport he travelled to Brazil on. This morning he was transferred from Ary Franco to the Bandeira Stampa public jail, part of the Gericinó Penitentiary Complex in Bangu in Rio's Western Zone.
No reason was given for the transfer, other than it is a "unit in accordance with his profile". When he was sentenced to 60 days preventative detention on 12 November, the judge Flavio Roberto de Souza said "It must be born in mind that, given the deportation request, that he could escape to an unknown location, as he did during his prison sentence in his country of origin." The Gericinó Penitentiary Complex is the largest public prison in Brazil. It was built in 1987 as a maximum security prison and it houses some of Rio's most dangerous criminals, including kidnappers and drug traffickers. However, it is a huge prison and relatively speaking, it is modern and well-run. The section Traynor/Smith is staying in is known as Bangu 10.
Bangu 10 is one of the most modern jails in Rio. There is space for 541 detainees, divided between collective and individual cells. Recently, Bangu 10 was home to Ray Whelan, a director of FIFA's ticketing and accommodation service Match. Whelan was arrested during the World Cup over charges of ticket touting. Other foreigners accused of various crimes during the football tournament were jailed in Bangu 10. An Emergency Travel Document is being prepared to allow Smith to travel once the necessary arrangements are in place. He is facing one charge of escaping from custody, and further charges are likely when he returns. It was not clear whether anyone will be charged with assisting in his escape. His sister Joanne Smith, one of his release sponsors, picked him up from the jail.
Police raided her Palmerston North home on Wednesday, seizing a laptop and other items. The man who was molested by Smith as a child and who saw his father being murdered by Smith said he could now carry on with his life "without having that fear [of Smith finding him] over my shoulders". The investigation into how Smith obtained his passport in his birth name, and where he got more than $10,200 in cash is ongoing. Police executed a search warrant on a safe deposit box in Auckland and are speaking to a number of people about the months leading up to Smith's escape. Assistant Commissioner Malcolm Burgess said there was an "element of luck" and good policing by Brazilian officers involved in catching Smith so quickly.
NZ Herald story 14th November 2014
The Ary Franco Prison where Phillip Smith is being held was two years ago condemned by the United Nations because it packed in 30 inmates to a cell, was infested with cockroaches and was leaking human waste. The prison is so revolting that in 2012, after a UN panel highlighted cases of torture, inmate abuse and filthy cells, Brazil's Justice Minister, Jose Eduardo Cardozo, said he would prefer death to serving time there. Brutal riots are commonplace at the prison, notorious for its inhumane conditions. Smith's stepfather, Basil Smith, said last night that he feared his stepson would have a nervous breakdown in the prison. "Apparently it's pretty rough over there in the jails. He won't be used to it.
It'll set him back," he said. Built in 1974, the prison in Rio de Janeiro's Western Zone was designed to house 958 inmates. The building has five floors, each with five "galleries" consisting of units made up of six to eight cells. A cell at Ary Franco is around 35sq m and holds 16-27 inmates, most serving sentences of four to eight years. But most will be transferred to other prisons in the state within the first four months of their sentence. In June 2012, the UN Subcommittee on the Prevention of Torture recommended the immediate closure of Ary Franco Prison. It revealed, among other things, that human waste from the upper storeys was leaking through the floors below.
During the subcommittee's visit, 457 prisoners were occupying a space built for 296. With around 30 inmates in each cell, around half slept on the floor. In 2003, seven prison guards were accused of torturing Chinese-Brazilian businessman Chan Kim Chang, 46, who died after he was found unconscious with head injuries in a cell at Ary Franco. In comparison, Smith's previous lodgings at Spring Hill Corrections Facility were deemed as "effective" against Corrections' own performance targets. Established in 2007, the prison is located on a 215ha site near Meremere in the Waikato. It caters for up to 1038 minimum- to high-security prisoners and currently has just over 770. Smith's latest security classification was low/medium.
NZ Herald story 20th December 2002
The hunt is on to find 1500 convicted criminals whose appeals were wrongly dismissed during years of improper Court of Appeal procedure. The court yesterday said the procedural failure was unprecedented. "What has happened needs to be confronted and set right," Chief Justice Dame Sian Elias said. Delivering the judgment of herself, Justice Noel Anderson and Justice Susan Glazebrook, she said the court had to do what it reasonably could to contact the approximately 1500 people thought to be affected, to advise them of their right to seek a rehearing. Court manager Claire Brown said later that the court and the Legal Services Agency, which administers legal aid, would discuss the steps that needed to be taken.
The court's judgment was the result of a damning Privy Council ruling last March that overturned the convictions of 12 New Zealanders who, it said, did not get a proper appeal after being refused legal aid. The system the court used was contrary to fundamental conceptions of fairness and justice, the Privy Council said. It was estimated the Court of Appeal dismissed 1500 other cases under the same conditions between 1991 and 2001. Lawyers representing convicted murderer Phillip John Smith of Carterton took a test case to the court to see if the 1500 should get new appeals as of right or whether they had to ask the court for a rehearing. The court has decided people have to ask for a rehearing, but a letter was all that was necessary.
People who did not get an effective appeal in the way that had now been exposed should not have to overcome hurdles to get a rehearing, Dame Sian said. Very few were likely to have had their flawed appeals validated under a law passed last year in an attempt to fix the situation. A more costly, time-consuming alternative was to ask the Privy Council to order a new appeal. Smith was ordered in August 1996 to serve at least 13 years of a life term. He was found guilty of murdering a man in Johnsonville on December 11, 1995, and sexual offences against the man's son. The identity of the murder victim was suppressed to protect his abused son.
Smith's first appeal was dismissed in December 1996 without a proper hearing. He was refused legal aid and the case was decided on written submissions he sent to the Court of Appeal. It is not known how many of the 1500 will want to reopen their cases. Since the law was changed a year ago they have been eligible for re-hearings if they could satisfy the court a miscarriage of justice had arguably occurred. Only 11 applications were received. Legal Services Agency grants manager Robyn Nicholas said some of the 1500 were likely to be transient and could be difficult to find. The agency would try to contact as many as possible by letter but was not intending to use private investigators to find people.
From the Dominion 20th December 1996
Phillip John Smith, found guilty in the High Court at Wellington of murder, burglary, kidnapping and sexual violation, has lost appeals against conviction and sentence. In July, a jury took eight hours to decide Smith's guilt for the murder of the father of a boy he molested, aggravated burglary of the family's Wellington house and six charges of molesting the boy. Smith was sentenced to life imprisonment with a minimum 13-year non-parole period for the murder of the father, five years in jail for the burglary, four years and eight years for the sexual violation charges, five years for each of four indecent assault and indecent act charges, and three years for each of two kidnapping charges. The burglary and kidnapping sentences were concurrent with each other but cumulative on the sexual abuse charges.
Smith appealed against the convictions and sentences for the murder and the sexual offences. The appeal summary described how Smith, then 21, became friendly with the boy he molested, then 12. Their relationship involved indecent touching, masturbation, oral sex and attempted anal intercourse. He had told the boy that if he told anyone about the abuse, something bad would happen to his family. When the boy finally told his family, fears of Smith led to their relocation by government agencies. However, Smith had found them, cut their telephone lines and broken into their house armed with a hunting knife. Smith's appeal of the murder conviction said that the trial judge had inadequately put the defence of self-defence to the jury.
However, in a judgment delivered by Justice Thomas, the Appeal Court ruled that all the main elements required to establish the defence had been covered. On the sexual violation and indecency charges, Smith contended that the judge had wrongly restricted cross-examination of the son about whether he held Smith's phone number. Justice Thomas said that the issue was irrelevant and without bearing on the crown case. A third ground of appeal related to allegedly fresh evidence being available: Smith had produced a detailed document giving his version of the events in relation to the murder and sexual offence charges. Smith contended that there was no sexual abuse of the son and that the father's death was either a result of self-defence or occurred without murderous intent.
Justice Thomas summarised this as an allegation that much of the evidence given at the trial - especially evidence given by the wife - was untrue. "This court has reiterated on numerous occasions that evidence will only be allowed after the conclusion of a trial if it is fresh and cogent," he said. "This evidence is clearly neither." On the appeal against the abuse sentences, he said the imprisonments were appropriate for "a long course of sexual abuse of a young victim, more particularly as threats were made to keep the abuse secret". For the sentence for murder, Smith submitted that the murder was "not exceptional" and therefore did not warrant a non-parole period of 13 years. "We disagree," Justice Thomas said. "This was a particularly nasty murder involving breaking into a household in the early hours of the morning, cutting the telephone lines, savagely attacking the father, stabbing the eldest son, and intimidating the family."
From Dominion Post story 18th July 2003
The sister of a slain Wellington man says dismissing the killer's second appeal does not end the ordeal for her family. Phillip John Smith's appeal against having to serve at least 13 years of a life jail term was dismissed in the Court of Appeal yesterday. In 1995 Smith stalked the family of a boy he had sexually abused, when they fled from Wairarapa to Johnsonville after the abuse was exposed. He hid a gun on a nearby property, and returned the following week to wait three hours in a laundry before breaking into the house in the middle of the night and stabbing the boy's father to death. Court of Appeal judge Justice Tipping said Smith had "psychologically tortured" the victim's wife, holding her at knifepoint so she could not get help for the dying man.
The murdered man was not named to prevent identification of his son. After the court decision yesterday, the dead man's sister said the outcome was some relief but did not mean she could close the book on Smith's crimes. When the 13 years was up she intended opposing Smith's release on parole. "My family deserves to live without the worry of him," she told The Dominion Post after yesterday's court hearing. The fact that Smith did not accept the sentence meant he was still in denial and a danger to her family. Her sister-in-law had to live every day with the memory of hearing her husband choking on his own blood. The boy who was abused had wanted to attend the Court of Appeal hearing but was not strong enough. Instead, she attended and wrote a letter to the court setting out the family's feelings and the continuing effect of Smith's crimes.
She was not impressed with Smith's lawyer saying Smith was less to blame than previously thought because he had post-traumatic stress disorder from being a child sex abuse victim himself. The sister said it was the first time her family had heard of the claim. She thought it was an excuse, and a weak one at that. Smith's lawyer, Greg King, said by 1996 standards the life term was enough by itself, without the 13-year non-parole period. "Life imprisonment is a heck of a sentence," Mr King said. "Well, this was a heck of a crime," Justice Tipping replied. Smith abandoned an attempt to overturn his convictions. His first appeal was dismissed in December 1996. His case was one of about 1500 that a Privy Council decision last year potentially reopened. The Court of Appeal was found to have used a flawed process to deal with criminal appeals in which legal aid was refused.
Also From Brian Harmer's WYSIWYG News December 1995
Wellingtonians were disturbed at their breakfast and on their way to work by police searching for a 21 year old man who, it is alleged, broke into the Johnsonville home of a family known to him, and stabbed a 13 year old boy. His father grappled with the assailant, and was himself fatally stabbed. The boy escaped, and struggled the half kilometre to the Johnsonville police station.
The intruder initially took the victim's wife and another son hostage, but realised that they were hampering his escape, so abandoned them unharmed. Police searched on foot, by car, and at roadblocks. A helicopter startled many residents of Northern suburbs as it cruised by houses at window level, with binocular equipped police peering out the doors. The foot search discovered a discarded rifle in one of the rail tunnels on the Johnsonville line, and the search switched to the rail system. Despite extensive roadblocks, and the hovering helicopter, the offender evaded police and boarded a train at Upper Hutt, bound for Masterton. A railway employee recognised the man from his description
Phillip Smith, 22, was convicted of the knife murder of a Johnsonville man who was protecting his son from attack after an allegation of sexual abuse against Smith. He is remanded for sentencing until August 16. There is considerable backlash, fuelled by bitter police comments, against two judges who against strong urging to the contrary, released Smith on bail. According to police, Smith had earlier convictions for violence and extortion, and was a danger to the son of the murdered man and his family.
Justice Minister Doug Graham was quick to point out that judges are called upon to make bail decisions every day and the number of violent offences committed while the perpetrator was on bail was small.
Phillip John Traynor
Stacey Beaversp John Traynor
Date of Birth
Additional Photos & Files
Associated Media Links http://www.stuff.co.nz/national/crime/74699294/Convicted-killer-Phillip-John-Smith-fails-in-latest-parole-bid
Phillip John Smith Appeal Notes 1996
OFFENCES / CONVICTIONS
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