Regina v Dean Anthony Privett and Michael Privett [1999] NSWSC 1076

New South Wales Supreme Court CITATION : Regina v Dean Anthony Privett and Michael Privett [1999] NSWSC 1076 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70081/98; 70014/97 HEARING DATE(S) : 8 October 1999 JUDGMENT DATE : 22 October 1999

Regina PARTIES : v Dean Anthony Privett Michael Privett JUDGMENT OF : Badgery-Parker AJ at 1

Cr: Mr P Conlon COUNSEL : D (Dean): Mr P Young D (Michael): Mr P Bodor QC Cr: Crown Solicitors Office, Wollongong SOLICITORS : D (Dean): Legal Aid Commission of NSW D (Michael): Brezniak Neil-Smith & Co, Sydney CATCHWORDS : CRIMINAL LAW - Sentence - Co-offenders convicted of murder - Sentencing rationale and principles to be applied - Measure of criminal responsibility of each offender - Circumstances of killing in remote rural area and with a firearm - Subjective factors - Existence of special circumstances - Effect of one prisoner labelled an "informer" on mitigation of sentence. ACTS CITED : Crimes Act 1900 Regina v Camilleri (8 February 1990, NSW Court of Criminal Appeal, unreported) CASES CITED : Regina v Mills (3 April 1995, NSW Court of Criminal Appeal, unreported) Ibbs v The Queen (1987) 163 CLR 447 DECISION : See paragraphs 36, 37 and 38 of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BADGERY-PARKER AJ

Friday, 22 October 1999

No: 70081/98 REGINA v Dean Anthony PRIVETT No: 70014/97 REGINA v Michael PRIVETT

SENTENCING JUDGMENT

1 HIS HONOUR: On 3 August 1999 a jury found Dean Anthony Privett and Michael Privett guilty of the murder of Dr Peter Browne Rowland at Gundaroo on 25 June 1996. At their request, both were remanded for sentence to 8 October 1999; and at the conclusion of the sentencing proceedings on that day, I remanded them until today, in order to give the matter adequate consideration. 2 The sentencing process is founded on well established principles which for present purposes I can conveniently take from the judgment of Allen J (with whom Gleeson CJ and Finlay J agreed) in Regina v Camilleri (8 February 1990, NSW Court of Criminal Appeal, unreported): In seeking to determine in any case the sentence appropriate to a particular crime it is always of importance to have regard to the gravity of the offence viewed objectively. Unless that is done the other facts requiring consideration in order to arrive at the proper sentence cannot be given their rightful place. A sentence imposed must be commensurate with the seriousness of the crime in the sense that it should, having regard to the all the proved circumstances, accord with the general moral sense of the community. It should also serve as a sufficient deterrent both to the offender and to others. The purpose of that deterrence is to prevent the commission of such offences, and whilst justice and humanity require that the previous character and conduct and the probable future life and conduct of the individual offender should be given most careful consideration, those are factors which are necessarily subsidiary to the main consideration which determines the appropriate amount of punishment, that is the protection of the public. The fundamental purpose of punishment is the protection of society. Unless those basic principles of sentencing are adhered to, errors will occur. 3 Although for the purpose of sentencing the jury's verdicts conclusively establish the guilt of each prisoner, those verdicts do not identify the "proved circumstances" adequately for the sentencing task. In particular, the verdicts do not reveal upon which of several available bases the guilt of each prisoner arose. 4 In those circumstances, the law imposes on me, as the sentencing judge, the task of determining the facts upon which I should act in imposing sentence, that is, of determining the basis and measure of the criminal responsibility of each prisoner respectively. In so doing, I must of course accept the jury's verdicts and must make no finding of fact which is not consistent with those verdicts. 5 It is important that I observe, and that those who listen to or read what I say today should clearly understand, that in sentencing I may proceed only on the basis of facts proved against each prisoner beyond reasonable doubt. 6 On the night of his death, Dr Rowland was at his property near Gundaroo. A house was in course of construction but not yet habitable. A shed on the property had been set up as a temporary residence, and in that shed Dr Rowland had gone to bed. He had a bedside light on; he may have been reading or he may have dozed off. He woke when his killer burst into the shed. He sat up, saying words to the effect, "What's going on?", and the killer fired a single shot from a twelve gauge shotgun which struck Dr Rowland in the face causing almost instant death. Four other shots were fired, two of which struck and killed Dr Rowland's large dog which was near the foot of the bed. The other two shots were evidently also fired at the dog, but missed. 7 Before I proceed to more specific findings of fact, I remind myself of the warning I gave to the jury as to the need for caution in acting upon the evidence of the witnesses Spencer and Teale, who were themselves criminally involved in that events of that evening, and the direction as to the need to scrutinise their evidence carefully. So too, I must be cautious about the evidence by either accused against the other, especially the evidence of Michael Privett implicating Dean as the gunman, contrary to his first assertion to police that it was he, not Dean, who killed their victim. I have given great weight to that warning and have scrutinised their evidence with great care. Having done so, I have concluded that I may act upon their evidence, as clearly the jury did, although to the extent that the evidence of Michael Privett was self-serving, attempting to minimise his own guilt, I do not accept it. 8 The evidence establishes that earlier that evening, Dean Privett arranged with one Gary Teale, that Teale should drive Privett to one or more rural properties for the purpose of stealing items of value including, if possible, one or more generators for which Dean had a potential buyer. They drove first to a property known as Yass Plains in Dogtrap Road, Yass. Entry to the property was blocked by a chained gate. They returned to Yass where Dean Privett borrowed some boltcutters. The two men then went to Dean Privett's home, and there Michael Privett and a fourth man Byron Spencer joined them in the car. They returned to Yass Plains, Dean cut the chain and opened the gate, and they entered the property and proceeded to a shed where all four men took an active part in collecting various tools, including some expensive power tools (but not a generator) and placing them in the boot of Teale's car. They transported those items back to Yass where they were secreted in the back yard of Dean Privett's home. 9 The vehicle was then driven from Dean Privett's home to Dr Rowland's property and in the minds of all who participated, the purpose of the trip was to find and steal a generator. 10 Dean Privett denies that he was in the vehicle on this second occasion, but the jury's verdicts imply their rejection of his evidence to that effect. In any event, independently of my duty to act consistently with the jury's verdicts, the evidence of Teale, Spencer and Michael Privett establishes to my satisfaction beyond reasonable doubt that Dean Privett was in the car and also, that he had with him in the car his twelve gauge shotgun and that, shortly before the vehicle arrived at Dr Rowland's property, Dean Privett loaded the weapon. The same evidence satisfies me that Dean Privett took the loaded gun with him when he got out of the car; that he was carrying it as he entered the shed after Michael Privett, at Dean's direction, kicked open the door; and that it was Dean Privett who fired the lethal shot. 11 The Crown submitted that it was open to me to be satisfied beyond reasonable doubt that the killing of Dr Rowland was premeditated by both accused, the subject of a prior agreement between them that, should they find Dr Rowland on the premises, he should be killed. There is some support for that in the evidence, but such a finding could only be made by inference and, especially in the absence of any credible evidence of a motive on the part of Dean Privett to kill, and given the slender nature of the evidence of motive on the part of Michael (namely, his assertion to police that the doctor was killed because of his homosexuality - which, it should be noted, is not evidence against Dean), the evidence is insufficient to discharge the onus of proof of premeditation against either prisoner. 12 However, the evidence does lead to a finding beyond reasonable doubt against each of the prisoner's that they entered the premises with a hostile intent. The matters which lead to that conclusion include the following. 13 It is clear, and neither of the prisoner's counsel disputed, that both men were, from the outset, parties to a joint criminal enterprise to break and enter the property, and steal. It is clear beyond doubt that, at least from the moment he left the car carrying the loaded gun, Dean Privett had the intention of using it in pursuance of their common objective, that is using it to subdue and overcome any opposition from any person in occupation of the shed. It is equally clear that before he commenced to kick open the door, Michael Privett knew that Dean was carrying the loaded gun. The evidence satisfies me of that, quite apart from the fact that a finding to the contrary would be inconsistent with the jury's verdicts. 14 There were obvious signs that the building was occupied (a light on, and a vehicle parked directly outside). Michael Privett denies having seen the light on. I reject that evidence, but such rejection does not, of course, prove that he saw the light or, if he did, that he inferred the presence of a human occupant. However, the manner of their entry into the shed is very telling: it comes primarily from the mouth of Michael Privett himself in his police interviews and his sworn evidence at the trial, with some support from the evidence of Spencer and the findings of the scene of crime officer, Detective Turnbull. I find that on arrival at the property but before they left the car, Dean Privett directed Michael to kick the door down. That is what occurred. Michael Privett kicked the door open, and Dean, armed with the shotgun, ran into the lighted room. That manner of entry clearly bespeaks a belief that the shed was occupied, or at the very least, anticipation on the part of both men of a real possibility that the shed was occupied. The evidence satisfies me beyond reasonable doubt that prior to the moment when Michael began his onslaught on the door, the scope of the mutually agreed enterprise had come to include the use of the firearm to overcome the resistance of any person who might be upon the premises - that is, the enterprise had become one of armed robbery. 15 All of the evidence satisfies me beyond reasonable doubt that before he began to attack the door, Michael contemplated that there was a substantial risk that in the course of their committing armed robbery, his brother might discharge the gun (which would suffice to render Michael Privett guilty of felony murder); but more, that he contemplated that there was a substantial risk that his brother would fire the gun at any person present in the shed with the intention of killing or inflicting grievous bodily harm. His evidence to the contrary is not credible. In so saying, I have not ignored the evidence of his extensive consumption of alcohol in the course of the day. However, in that regard I accept in preference to his sworn evidence his answer to question 287 in his first recorded interview: Q: Where you intoxicated? A: Some people would call me intoxicated but I wouldn't, I was still pretty coherent, I could understand everything.