Citation: Regina v Dean Anthony Privett and Michael Privett [1999] NSWSC 1076
Court: Supreme Court of New South Wales
Date: 22 October 1999
Judge(s): Badgery-Parker AJ
Background
A jury convicted two brothers, Dean Anthony Privett and Michael Privett, of the murder of Dr Peter Browne Rowland at his rural property near Gundaroo on 25 June 1996. The killing occurred during a late-night expedition to steal property, including a generator, from the victim's partially constructed rural property.
The evidence established that Dean Privett brought a loaded twelve-gauge shotgun to the property. When Michael Privett kicked open the shed door where the victim was sleeping, Dean fired the shot that killed Dr Rowland. A dog at the foot of the bed was also shot dead. Two other men, Spencer and Teale, were present and criminally involved in the events of that evening.
The sentencing proceedings required the court to determine the individual criminal responsibility of each brother, given that the jury's guilty verdicts did not reveal the precise basis upon which each was convicted.
Legal Issues
- What sentencing principles apply to co-offenders convicted of murder?
- On what factual basis should each offender be sentenced, where the jury's verdict does not specify the route to liability?
- Was the killing premeditated or the subject of a prior agreement between the brothers?
- Did either offender enter the premises with hostile intent towards the victim?
- What subjective factors, including personal circumstances and prison conditions, were relevant to each sentence?
- Whether one offender being labelled an "informer" in prison constituted a mitigating circumstance justifying a reduction in sentence.
Decision
Badgery-Parker AJ set out the applicable sentencing principles by reference to the Court of Criminal Appeal's decision in Regina v Camilleri, emphasising that a sentence must reflect the objective gravity of the offence, accord with the community's general moral sense, serve as a deterrent, and ultimately protect the public. Subjective factors, while requiring careful consideration, are subsidiary to those principal aims.
The court found it was not satisfied beyond reasonable doubt that either brother had premeditated the killing or entered a prior agreement to murder the victim if he was found on the property. However, the court was satisfied beyond reasonable doubt that both men entered the premises with hostile intent toward any person they might find there, based on the fact that Dean carried and loaded the shotgun before arriving, and on their conduct throughout the evening.
The court found that Dean Privett was the shooter and bore the greater criminal responsibility. His denial of being present on the second trip was rejected, consistent with the jury's verdict. Michael Privett's role included directing the group to the property and kicking open the shed door, making him a direct participant. To the extent Michael's evidence was self-serving and attempted to minimise his own culpability, the court did not accept it.
On the question of mitigation for Michael Privett, the court accepted that being labelled an informer by fellow prisoners, as a result of his statements and evidence against his brother, made his imprisonment more onerous than it would otherwise be. That additional hardship was taken into account in reducing his sentence.
Orders Made
- Dean Anthony Privett: sentenced to penal servitude for 17 years and 9 months, deemed to have commenced 22 October 1998, expiring 21 July 2016; minimum term of 14 years and 6 months ending 21 April 2013; eligible for parole from 21 April 2013.
- Michael Privett: sentenced to penal servitude for 14 years and 8 months, deemed to have commenced 27 July 1999, expiring 26 March 2014; minimum term of 11 years ending 26 July 2010; eligible for parole from 26 July 2010.
- The court recommended that Corrective Services consider placing Michael Privett, as early as practicable, at a prison close to the area where his partner and her family reside, given its relevance to his rehabilitation prospects.
Key Takeaways
- Where a jury's guilty verdict does not reveal the route to liability, the sentencing judge must independently determine the factual basis and measure of each offender's criminal responsibility, acting consistently with the verdicts and applying the beyond-reasonable-doubt standard to any adverse finding.
- A finding of hostile intent can be established beyond reasonable doubt from circumstantial evidence, such as arriving at a premises at night with a loaded firearm, even where premeditation or a specific prior agreement to kill cannot be established to the same standard.
- Co-offenders convicted on the same charge may receive meaningfully different sentences where their individual roles and levels of participation are distinguishable on the evidence.
- Being labelled an "informer" in prison as a direct consequence of providing evidence against a co-accused constitutes a recognised mitigating factor, because it renders the sentence more onerous in practice.
- Subjective factors, including the significance of supportive personal relationships to rehabilitation, may influence both the structure of a sentence and recommendations made to correctional authorities.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
Cases
- Regina v Camilleri (8 February 1990, NSW Court of Criminal Appeal, unreported)
- Regina v Mills (3 April 1995, NSW Court of Criminal Appeal, unreported)
- Ibbs v The Queen (1987) 163 CLR 447