Citation: R v Brilliantes [2013] NSWSC 1693
Court: Supreme Court of New South Wales
Date: 8 November 2013
Judge(s): Adamson J
Background
In the early hours of 8 July 2012, the offender attended the Parramatta transport interchange with associates after receiving a phone call indicating a fight was imminent. He carried a knife with a serrated blade approximately 16 centimetres long. When he arrived, he threatened bystanders with the knife and then stabbed Patrick Crowe in the torso. Crowe was taken to Westmead Hospital, where he died from his injuries later that morning.
The offender was 19 years old at the time of the offence. He had been drinking alcohol, smoking cannabis, and had also consumed ice that night. He was on parole at the time of the killing. He was arrested three days later and pleaded guilty to murder on 3 May 2013.
The sentencing hearing proceeded on agreed facts, CCTV footage, police interview material, witness statements, probation and parole reports, a psychiatric report, and evidence from the offender's mother.
Legal Issues
- What was the appropriate sentence for the murder, having regard to the standard non-parole period framework under the Crimes (Sentencing Procedure) Act 1999 and the guidance in Muldrock v The Queen?
- What discount, if any, should be applied for the guilty plea?
- What weight should be given to aggravating factors, including use of a weapon, the offence being committed on parole, and the risk the offender posed to public safety?
- What mitigating weight, if any, should be given to the offender's youth, intoxication, remorse, and background?
- Were there special circumstances justifying an adjustment to the statutory ratio between the non-parole period and the total sentence?
Decision
Adamson J assessed the objective seriousness of the offence as above mid-range. The offender armed himself before leaving for the interchange, threatened a bystander with the knife during the altercation, and then deliberately lunged and stabbed the deceased. The premeditated carrying of the weapon and its use in a public place at night were significant features.
Several aggravating factors applied. The offence was committed on parole, which the court treated as a statutory aggravating factor. The offender's conduct represented a real risk to public safety. The use of a weapon was also an aggravating circumstance under the legislation.
On mitigation, the court accepted the offender's youth as a relevant consideration, though Adamson J noted that the nature of the offence was one more commonly associated with adult conduct, which limited the leniency ordinarily extended to young offenders. The court accepted that the offender experienced genuine remorse, distinct from mere self-concern, and took into account his difficult background and the psychiatric evidence. Intoxication did not reduce moral culpability in circumstances where the offender had chosen to take drugs and alcohol before arming himself and going to the scene of a known confrontation. A 25 per cent discount was applied for the early guilty plea.
The court was not satisfied that special circumstances existed to justify departing from the standard non-parole period ratio. The length of the overall sentence was considered sufficient to accommodate a meaningful parole period, while the non-parole period needed to reflect the seriousness of the offence and the need to protect the public.
Orders Made
- The offender was sentenced to 18 years imprisonment for murder, commencing 8 January 2013.
- A non-parole period of 13 years and 6 months was set.
- The earliest eligible parole date is 8 July 2026.
Key Takeaways
- The Supreme Court confirmed that a 25 per cent guilty plea discount applied where the plea was entered at an early stage, consistent with the established sentencing framework.
- Arming oneself before travelling to a known confrontation, and then using that weapon to kill, placed the offence above the mid-range of objective seriousness even where the offender did not initiate the broader altercation.
- Committing murder while on parole operated as a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 and weighed significantly in the sentencing assessment.
- Voluntary intoxication did not reduce moral culpability where the offender had chosen to consume alcohol, cannabis, and ice before arming himself and proceeding to the scene.
- Under R v Previtera, the law does not permit a sentence to reflect the full extent of loss suffered by the deceased's family, though Adamson J expressly acknowledged that loss before pronouncing sentence.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2)
Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Previtera (1997) 94 A Crim R 76