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5
Supreme Court 23 June 2017

R v Brooks (No.5)

[2017] NSWSC 824

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MURDER SINGLE STAB WOUND WOUNDING WITH INTENT WHERE JURY REJECTED SELF

Citation: R v Brooks (No.5) [2017] NSWSC 824
Court: Supreme Court of New South Wales
Date: 23 June 2017
Judge(s): Hamill J

Background

Bradley James Brooks was sentenced following his conviction by jury on 29 March 2017 for the murder of Gregory Gibbins and the wounding with intent to inflict grievous bodily harm on Adam Swindell. Both offences occurred within minutes of each other on 6 April 2015 outside a pizza shop in Toukley, New South Wales.

The two victims had approached a young woman who appeared to be in distress. Brooks stabbed Gibbins in the chest; Gibbins staggered away, collapsed, and died from the single stab wound. Brooks then stabbed Swindell, also in the chest, causing serious injuries from which Swindell eventually recovered. The jury rejected a claim of self-defence in relation to both offences.

Victim impact statements were delivered to the court by Gibbins' parents, his two sisters, and Swindell himself. Hamill J began the sentencing remarks by acknowledging the profound and lasting devastation caused to the Gibbins family, noting that no sentence was capable of providing adequate recognition of that harm.

  • What sentence was appropriate for the murder of Gibbins, having regard to the standard non-parole period of 20 years and all relevant objective and subjective factors?
  • What sentence was appropriate for the wounding with intent offence against Swindell, having regard to a standard non-parole period of 7 years?
  • How should the two sentences be structured, including whether and to what extent they should be accumulated (served consecutively) rather than wholly concurrent?
  • Whether Brooks intended to kill, and how the absence of that intent affected the objective seriousness of the murder.
  • What weight should be given to Brooks' youth, lack of criminal history, and prospects of rehabilitation, weighed against the purposes of deterrence, denunciation, and community protection?
  • How the carrying of a knife affected the sentencing calculus, particularly in relation to general deterrence.

Decision

Hamill J assessed the murder as falling below the middle range of objective seriousness, principally because there was no intent to kill, no planning or premeditation, and the fatal wound was a single stab. The court nonetheless treated the offence as a very serious one: a life was taken with a knife, and the jury had rejected any basis for self-defence. The carrying of a knife to a public place was treated as a significant aggravating factor going to general deterrence, consistent with well-established authority emphasising the need to deter knife violence in the community.

On the wounding count, the court found the offence also fell below the mid-range of objective seriousness, though it was still a grave offence involving a stab wound to the chest of an unarmed man. Hamill J noted that the two victims were strangers who had done nothing more than attempt to assist someone in apparent distress.

In favour of Brooks, the court identified his youth (he was in his early twenties at the time), absence of any prior criminal history, good prospects of rehabilitation, and the fact that he had conducted his trial in a manner that facilitated the course of justice (a mitigating factor under s 22A of the Crimes (Sentencing Procedure) Act 1999). The court also noted the absence of planning and the lack of intent to kill. There was, however, no formal finding of remorse, as the statutory requirements for that mitigating factor had not been satisfied.

On accumulation, Hamill J held that some degree of accumulation of the two sentences was required in order to vindicate the separate dignity of each victim and properly reflect that two people were seriously harmed in the same incident. The court noted that although consistency in sentencing is important, as affirmed by the High Court in Hili v The Queen and the Court of Criminal Appeal in DPP (Cth) v De La Rosa, individual justice remains paramount. Hamill J quoted the principle that "if justice is not individual, it is nothing" in emphasising the need to tailor the sentence to the specific facts.

Orders Made

• Count 2 (wounding with intent to cause grievous bodily harm): Non-parole period of 5 years commencing 6 April 2015 and expiring 5 April 2020, with balance of term of 2½ years commencing 6 April 2020 and expiring 5 October 2022

• Count 1 (murder): Non-parole period of 12½ years commencing 6 April 2017 and expiring 5 October 2029, with balance of term of 7½ years commencing 6 October 2029 and expiring 5 April 2037

• Eligibility for release to parole at the conclusion of the non-parole period for count 1

Key Takeaways

  • The Supreme Court confirmed that the standard non-parole period of 20 years for murder functions as an important legislative yardstick, but does not displace the sentencing court's broader task of synthesising all relevant objective and subjective factors, consistent with the High Court's reasoning in Muldrock v The Queen.

  • A finding that the offender did not intend to kill, combined with an absence of planning or premeditation and a single wound, can place a murder below the middle range of objective seriousness, even where a jury has rejected self-defence.

  • The carrying of a knife to a public place was treated as an aggravating factor that increases the weight given to general deterrence in sentencing, reflecting the courts' consistent concern about knife violence.

  • Where a single incident results in serious harm to two separate victims, some accumulation of sentences is appropriate to recognise the distinct harm suffered by each person, rather than imposing wholly concurrent terms.

  • Youth, the absence of a criminal record, and good prospects of rehabilitation remained significant mitigating considerations, even in the context of a very serious offence resulting in death, demonstrating the court's need to balance the competing statutory purposes of punishment set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 3A, 21A, and 22A

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- KT v The Queen [2008] NSWCCA 51; (2008) 182 A Crim R 571
- R v AJC [2010] NSWCCA 168; (2010) 207 A Crim R 307
- MB v R [2013] NSWCCA 254
- Beldon v R [2012] NSWCCA 194
- R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451
- R v Dang [1999] NSWCCA 42
- R v Halloun [2014] NSWSC 1705
- R v Do (No. 4) [2015] NSWSC 512
- R v Anthony Jones [2012] NSWSC 1433
- R v Carr [2009] NSWSC 995
- R v Heffernan [2005] NSWSC 739
- R v Douglas Edwin Barlow [2013] NSWSC 217
- R v Boshevski [2011] VSC 303