Supreme Court New South Wales

• Medium Neutral Citation: R v Brown [2013] NSWSC 1557
• Hearing dates: 13, 17-21 June, 20 September 2013
• Decision date: 25 October 2013
• Jurisdiction: Common Law - Criminal
• Before: Price J

Decision

Sentenced to a term of 19 years imprisonment consisting of a non-parole period of 13 years 9 months commencing on 12 January 2012 and expiring on 11 October 2025 with a balance of term of 5 years 3 months commencing on 12 October 2025 and expiring on 11 January 2031. The earliest date that you will be eligible to be released on parole is 11 October 2025.

• Catchwords: CRIMINAL LAW - sentencing - murder - parity - extended joint criminal enterprise - finding of special circumstances
• Legislation Cited: Crimes (High Risk Offenders) Act 2006; Crimes (Sentencing Procedure) Act 1999 s 21A(2)(j), s 21A(3)(g)-(i)
• Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; (2011) 86 ALJR 36; Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; (2011) 281 ALR 652; R v Isaacs (1997) 41 NSWLR 374; R v Lockett NSWSC [2013] NSWSC 1555; R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566; R v Pilley (1991) 56 A Crim R 202; R v Previtera (1997) 94 A Crim R 76; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
• Category: Sentence
• Parties: Crown; Carl Brown
• Representation: Counsel: Mr P Leask (Crown); Mr M Ainsworth (Offender); Solicitors: Ms A Holloway - Office of Director of Public Prosecutions; Mr R Kaufmann - Crimlaw Criminal Defence Lawyers Pty Ltd
• File Number(s): 2010/337942

REMARKS ON SENTENCE

1 HIS HONOUR: Carl Brown (the offender) has been found guilty by a jury of the murder of Wallace Ruiz-Sanchez on 12 October 2010.

2 Mr Ruiz-Sanchez died when he was struck on the head with a shotgun by Samuel Lockett which then discharged, mortally wounding him. The deceased was 38 years old at the time of his death.

3 The maximum penalty for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of twenty years imprisonment. Those two guideposts are to be borne in mind when the court comes to a consideration of the appropriate penalty, having regard to the objective circumstances of the offence and the subjective features of the offender: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; (2011) 281 ALR 652.

4 Although the offender was individually tried before a jury, Samuel Lockett was also found guilty by a jury of the murder of the deceased. Richard Barnes, Bradley Owen Trawin-Hadfield and Kirk Daniel Tuivaga pleaded guilty to the manslaughter of the deceased which was accepted by the Crown in full satisfaction of the indictment charging them with murder. With no disrespect to these offenders, I will refer to them furthermore by their surnames during these sentencing remarks.

5 In view of the separate trials for the offender and Lockett and the differences in the agreed facts upon sentence for the remaining offenders, it is necessary to deliver separate sentencing remarks for each offender. However, the parity principle is of importance when sentencing each of them and is not confined to sentences imposed upon co-offenders who have committed the same crime. It can also be applied to sentences imposed upon persons who are co-offenders by virtue of having been engaged in the same criminal enterprise, regardless of the charges that have been actually laid against them: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; (2011) 86 ALJR 36 at [30]; Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [136]. However, the significant practical difficulties with this approach are well recognised: Jimmy at [203]; Green at [30].

6 In the present case, there is little utility in considering parity with the three offenders who pleaded guilty to manslaughter. The roles that they played in the death of the deceased were much less than the offender and Lockett and there is a deal of difference between the maximum penalties for murder and for manslaughter. The question of parity is considered at [32] below.

7 During the trial and proceedings on sentence, Mr P Leask appeared for the Crown and Mr M Ainsworth appeared for the offender.

8 It is my duty to determine the facts relevant to sentencing the offender which are to be founded on the evidence adduced in his trial. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the offender must be arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374. Matters of mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202 at 204. I should state at the outset that I found Rhiannon Knaggs to be an impressive witness.

9 The genesis of the events that led to the deceased's death is found in the purchase of a pistol by the offender for $600 from the deceased. The offender said that he would pay for the pistol on the following day, but he did not do so. The deceased tried to call the offender a number of times and had left voice and text messages. According to the offender, the deceased had left messages about payment and in a telephone conversation with the deceased, they had an argument and he told the deceased not to leave messages like that on his answering machine (ex H p 9 Q & A 60).

10 On 12 October 2010, all five offenders drove together to Jasmine Psaroudis' house at Mt Pritchard which was next door to the deceased's home. Ms Psaroudis is the offender's sister. On the way to Mt Pritchard, they stopped at Trevor Hair's place at Canley Heights where the offender picked up a shotgun. The offender was in the front passenger seat of the vehicle and the shotgun travelled on his lap. Barnes was the driver and Lockett, Tuivaga and Trawin-Hadfield were seated in the rear of the vehicle.

11 In his ERISP interview, the offender described the gun as a "one shotter...you can't pump six shells into it": Ex H (p 19 Q & A 168). The offender said that he knew the gun was loaded: Ex H (p 21 Q & A 188). He carried the gun which was wrapped in a jumper into his sister's house. Each of the offenders went into Ms Psaroudis' house where they remained for about half an hour.

12 The offender told police that he gave the gun to Barnes saying "...hold this, I want to go over next door and fucken have a couple of words with this bloke": Ex H (p 17 Q & A 142). All of the offenders moved next door to the home of the deceased.

13 The deceased was in the kitchen making dinner whilst his partner Rhiannon Knaggs and her friend Ashley Riddell were making baby shower invitations. Ms Knaggs heard the offender calling out the deceased's name.

14 The deceased went out onto the front verandah where he was confronted by the offenders, one of whom had brought the gun. After Ms Knaggs heard a bang on the screen door, she ran to the door where she saw all of the offenders on the verandah less than a metre away from the deceased. The offender had a soft drink bottle in his hand and was pointing at the deceased. The offender was saying "You want to leave smart arse messages" and "I'll show you who a gangster is" (T17/6/13 T60 L13-16). Ms Knaggs described all of the men punching the deceased. She said that the offender punched him on the left eye and the deceased wiped the blood off his face. She recalled leaving the screen door to phone for help, but the offender said "If your missus calls anyone I'll shoot her" (T17/6/13 T60 L20).

15 Ms Knaggs and Ms Riddell gave evidence that Lockett hit the deceased once on the head with the shotgun and the shotgun discharged. Ms Psaroudis said that she saw Lockett hit the deceased on the head and everytime he did so, she heard a crack. She heard the crack three times.

16 Ms Knaggs and Ms Riddell were in a much better position to see what took place on the front verandah than Ms Psaroudis who was looking through the window of her house. I am not satisfied beyond reasonable doubt that Lockett struck the deceased more than once with the shotgun. After the gun discharged, all of the offenders ran away and the gun has not been located.

17 Dr Bailey, the forensic pathologist, gave evidence that the cause of death was a shotgun wound to the deceased's head. Other than the wounds caused by the shot gun pellets, Dr Bailey found evidence of blunt force trauma that included some lacerations around the face and eyes of the deceased. She described other abrasions and haemorrhages to the deceased's body. In cross-examination, Dr Bailey said that some of the injuries might be in part due to a terminal collapse.

18 The Crown case against the offender was brought upon the principles of joint criminal enterprise or extended joint criminal enterprise. It is evident from the jury's question during their deliberations that the verdict of murder was returned as the jury was satisfied beyond reasonable doubt that the offender and Lockett were parties to an agreement to assault the deceased, that in the course of carrying out the agreement and whilst the offender continued to be a party to the agreement, Lockett deliberately struck the deceased on the head with the shotgun, with the intention of inflicting grievous bodily harm on him. The jury found that although the infliction of grievous bodily harm was not within the agreement, the offender contemplated that in the course of carrying out the agreement to assault the deceased, a party or parties to the agreement might deliberately apply physical force to the body of the deceased without his consent and at the time that party did so, he had the intention of inflicting grievous bodily harm on him.

19 The jury found that the offender participated in the joint criminal enterprise by himself assaulting the deceased with the contemplation that a party or parties to the agreement might do an act with the intention of inflicting grievous bodily harm on the deceased and at the time Lockett deliberately struck the deceased on the head with the shotgun, the offender intentionally assisted or encouraged him. The jury was satisfied that Lockett's deliberate act in striking the deceased on the head with the shotgun made a substantial contribution to the deceased's death. The offender is to be sentenced on the basis of extended joint criminal enterprise murder.

20 The evidence of events before the attack upon the deceased is confined to the offender's ERISP interview and Ms Psaroudis' testimony. The jury was not satisfied that the agreement between the offenders to assault the deceased was formed before they entered the front yard of his home.

21 It was the offender, however, who had the dispute with the deceased over the payment for the pistol and was angry over the phone calls and text messages. He obtained the shotgun which he knew was loaded. He led the other four offenders to the deceased's home in order to confront him. He called out to the deceased and made threats to him. He encouraged the others to assault the deceased and joined in the cowardly attack by punching him. He raised the level of potential violence by threatening to shoot Ms Knaggs which was shortly followed by Lockett striking the deceased with the shotgun.

22 Matters that mitigate the objective seriousness of the offence are that the agreement to assault the deceased was not entered into until shortly before he was attacked and the offender's lack of contemplation that the deceased would be killed. Neither the offender nor Lockett anticipated that the shotgun would discharge when the deceased was struck with it. Neither of these offenders had an intention to kill the deceased. I conclude that the objective seriousness of the offence is below the middle of the scale for the offence of murder.

23 The offender was born on 14 August 1983. He was 27 years old at the time of the offence and is now 30 years old. His criminal history as an adult reveals other than traffic offences, a conviction for larceny (2008) and convictions at the Parramatta District Court on 27 May 2011 for two counts of reckless wounding whilst in company on 4 October 2009. The agreed facts for these offences disclose serious acts of violence by the offender.

24 These prior acts of violence do not increase the objective seriousness of the murder, nor are they objective circumstances for the purpose of the application of the proportionality principle and do not determine the upper boundary of a proportionate sentence: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566. In view of the offender's prior violent offending, I give more weight to personal deterrence and protection of society than otherwise would have been the case: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. I take into account the need for general deterrence.

25 At the time of the murder, the offender was on bail for the offences of reckless wounding whilst in company. It is an aggravating factor that the murder was committed whilst the offender was on bail for these offences: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999.

26 The offender did not give evidence during the trial or the proceedings on sentence. His background is drawn from a pre-sentence report that was prepared for the offences of reckless wounding and a document entitled Carl Brown History prepared by his solicitors. The offender is the youngest in a family of five children. When the offender was two, his father was sentenced to three years imprisonment. He returned to New Zealand upon completing his custodial sentence. The offender's relationship with his stepfather began when he was seven years old. The offender did not bond with his stepfather who he reports to have been an alcoholic and violent to the children and his mother. The offender has a good relationship with his mother who has been supportive of him throughout his life. The offender has been in a relationship with his partner Julie for six years. They have a four year-old daughter. Both have visited him whilst in custody.

27 The offender left school at the end of Year 9. The solicitors report that he has a learning difficulty and cannot read or write well. He was employed as a forklift driver when he was 18 years old and obtained his forklift licence. He lost this employment when he was 23 years old and has been unemployed since that time.

28 The solicitors report that the offender commenced taking cannabis at the age of 15 and moved to harder drugs by the age of 20. The author of the pre-sentence report makes reference to the offender's claim of starting to use methylamphetamine in 2007 but records the offender's report of not using any illegal drugs for twelve months which his mother supported. I take into account the offender's difficult family background and personal circumstances.

29 Mr Ainsworth pointed to the offender's expressions of regret during the ERISP interview as indicating his contrition for the offence. Mr Ainsworth made particular reference to Q & A's 34, 157 and 436 (though it appears that he intended to refer to Q & A 430).

30 Remorse as a mitigating factor is qualified by s 21A(3)(i) Crimes (Sentencing Procedure) Act which requires the offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by them. Although the offender expresses his regret in the ERISP for the deceased's death and the impact that might have on Ms Knaggs, he places the blame for what occurred on Lockett. I am not persuaded on the balance of probabilities that the offender has acknowledged the loss caused by his actions. Furthermore, the offender pleaded not guilty to the murder. I am not satisfied on the balance of probabilities that the offender has accepted responsibility for his actions.

31 During the proceedings on sentence, no submissions were specifically made as to the offender's likelihood of re-offending or prospects of rehabilitation. In my opinion, the commission of the offence whilst on bail for offences involving violence encourages a pessimistic view being taken. Notwithstanding his family support, I am unable to make a finding on the balance of probabilities that the offender is unlikely to re-offend or has good prospects of rehabilitation.

32 When sentencing Lockett, I discussed the question of parity at [32]-[35] of the sentencing remarks: R v Lockett NSWSC [2013] NSWSC 1555. I concluded that Brown and Lockett were equally culpable for the murder. Mr Ainsworth did not submit otherwise. However, the differences in the subjective circumstances of Lockett and Brown justify a lesser sentence for Lockett. Lockett's criminal history does not disclose any previous convictions for offences involving violence whereas Brown had committed two offences of reckless wounding whilst in company in 2009. I have assessed Lockett to a limited extent to be remorseful, whereas no finding of remorse is made for Brown. Furthermore, I found that Lockett is unlikely to re-offend and has good prospects of rehabilitation whereas I was unable to make such a finding for Brown. In Lockett's case personal deterrence did not have a significant role to play, whereas for Brown more weight is given to personal deterrence and the protection of the community.

33 Victim impact statements from Ms Knaggs, Maria Vinas, the deceased's mother, and Virginia Ruiz-Sanchez, his sister, were read to the court. The contents of these statements cannot be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. I acknowledge the grief and distress of the deceased's partner and his family and express on the community's behalf its sympathy and compassion for them.

34 Mr Ainsworth submitted that the offender's sentence should commence on 12 January 2012. This was the date he was to be released to parole for the offences of wounding in company. For these offences he had been sentenced in the District Court on the first count to imprisonment for 2 years 6 months commencing on 13 October 2010 with a non-parole period of 12 months and on the second count to imprisonment for 2 years 6 months commencing on 13 October 2010 and expiring on 12 April 2013 with a non-parole period of 15 months expiring on 12 January 2012.

35 As the offender has served these sentences since he went into custody, it is necessary to consider the principle of totality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. The offences for which the offender was sentenced in the District Court and the offence of murder are discrete and independent acts of criminality. This fact does not, however, finally determine whether the present sentence ought to be imposed concurrently, partially concurrently or consecutively: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 per Howie J at [27]. In the present case, I consider that it is appropriate to commence the sentence on the date that the offender would have otherwise been released on parole being 12 January 2012.

36 I find special circumstances exist that justify a variation in the statutory ratio between the non-parole period and the balance of term of the sentence as the offender needs the assistance of drug and alcohol counselling upon release. I have determined that a non-parole period of 13 years 9 months is the minimum period that the offender must spend in custody in order to appropriately reflect the criminality involved in the offence: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at [63].

37 Carl Brown for the murder of Wallace Ruiz-Sanchez, I convict you. I sentence you to a term of 19 years imprisonment consisting of a non-parole period of 13 years 9 months commencing on 12 January 2012 and expiring on 11 October 2025 with a balance of term of 5 years 3 months commencing on 12 October 2025 and expiring on 11 January 2031.

38 The earliest date that you will be eligible to be released on parole is 11 October 2025.

39 I ask Mr Kaufmann to advise the offender of the existence of the Crimes (High Risk Offenders) Act 2006 and of its application to the offence for which he has been sentenced.

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Decision last updated: 25 October 2013