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Supreme Court 25 October 2013

R v Brown

[2013] NSWSC 1557

Homicide
CRIMINAL LAW SENTENCING MURDER PARITY EXTENDED JOINT CRIMINAL ENTERPRISE FINDING OF SPECIAL CIRCUMSTANCES

Citation: R v Brown [2013] NSWSC 1557
Court: Supreme Court of New South Wales
Date: 25 October 2013
Judge(s): Price J

Background

Carl Brown was convicted by jury of the murder of Wallace Ruiz-Sanchez, who died on 12 October 2010 after being struck on the head with a shotgun by co-offender Samuel Lockett, causing the weapon to discharge. The deceased was 38 years old. Brown had purchased a pistol from the deceased for $600 and had not paid for it; a dispute over that debt provided the immediate motivation for the events that followed.

On the day of the killing, Brown and four other men drove to the street where the deceased lived. Brown collected a loaded shotgun along the way, which travelled on his lap in the front passenger seat. The group confronted the deceased on the front verandah of his home, where Brown and others assaulted him before Lockett struck him on the head with the shotgun, which then discharged.

Brown was tried separately from Lockett, both of whom were found guilty of murder. Three other co-offenders, Barnes, Trawin-Hadfield, and Tuivaga, pleaded guilty to manslaughter, which the Crown accepted in full satisfaction of the murder indictment against them.

  • On what factual basis should Brown be sentenced, given the jury's verdict on extended joint criminal enterprise?
  • How should the parity principle apply across co-offenders convicted of different offences arising from the same criminal enterprise?
  • Whether the sentence for murder should be served consecutively, concurrently, or partially concurrently with Brown's existing sentences for unrelated wounding offences, having regard to the totality principle.
  • Whether special circumstances existed justifying a variation to the statutory ratio between the non-parole period and the balance of term.
  • What was the appropriate sentence, bearing in mind the standard non-parole period of 20 years for murder?

Decision

Price J determined that Brown was to be sentenced on the basis of extended joint criminal enterprise murder. The jury was satisfied that Brown and Lockett agreed to assault the deceased, that Lockett then deliberately struck the deceased with the shotgun intending to cause grievous bodily harm, and that Brown had contemplated that a party to the agreement might act with that intention. The jury also found that Brown intentionally assisted or encouraged Lockett at the time of the blow.

On parity, Price J noted that the principle is not confined to co-offenders charged with the same offence, but extends to those engaged in the same criminal enterprise regardless of the charges actually laid against them, consistent with Green v The Queen and Jimmy v R. However, his Honour found little utility in comparing Brown's sentence with those of the three offenders who pleaded guilty to manslaughter, given their substantially lesser roles and the significant difference in maximum penalties between murder and manslaughter.

Applying the totality principle from Mill v The Queen, Price J concluded it was appropriate to commence Brown's sentence on 12 January 2012, the date he would otherwise have been released to parole on earlier District Court sentences for wounding in company. The murder and the wounding offences were discrete and independent acts of criminality, but that fact alone did not determine the sequencing of sentences.

Special circumstances were found to exist because Brown required drug and alcohol counselling support upon release. This justified departing from the standard statutory ratio between the non-parole period and the balance of term, resulting in a slightly extended supervision period on parole.

Orders Made

  • Brown convicted of the murder of Wallace Ruiz-Sanchez.
  • Sentenced to 19 years imprisonment.
  • Non-parole period of 13 years and 9 months, commencing 12 January 2012 and expiring 11 October 2025.
  • Balance of term of 5 years and 3 months, commencing 12 October 2025 and expiring 11 January 2031.
  • Earliest parole eligibility date: 11 October 2025.
  • Brown to be advised of the existence and application of the Crimes (High Risk Offenders) Act 2006.

Key Takeaways

  • Extended joint criminal enterprise murder does not require that the fatal act fall within the original agreement; it is sufficient that the offender contemplated that a party to the agreement might act with intent to cause grievous bodily harm, and that the offender intentionally assisted or encouraged that act at the time it occurred.
  • The parity principle can apply across co-offenders convicted of different offences, provided they were engaged in the same underlying criminal enterprise, though the significant difference in maximum penalties between murder and manslaughter substantially limits its practical operation in mixed-charge cases.
  • Where a murder sentence is to be served alongside earlier unrelated sentences already being served, the totality principle informs the commencement date of the new sentence; the discreteness of the offences does not automatically resolve whether sentences run concurrently or consecutively.
  • Special circumstances justifying a reduced non-parole period relative to the total sentence can be established where an offender demonstrates a need for structured support, such as drug and alcohol counselling, during the parole period.
  • Under Muldrock v The Queen, both the maximum penalty of life imprisonment and the standard non-parole period of 20 years for murder serve as guideposts to be weighed alongside the objective circumstances of the offence and the subjective features of the offender.

Legislation and Cases Referenced

Legislation:
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 21A(3)(g)-(i)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v Isaacs (1997) 41 NSWLR 374
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Previtera (1997) 94 A Crim R 76
- R v Pilley (1991) 56 A Crim R 202
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- R v Lockett [2013] NSWSC 1555