Regina v Brewer [2001] NSWSC 99

New South Wales Supreme Court

CITATION : Regina v Brewer [2001] NSWSC 99 FILE NUMBER(S) : SC 70032/99 HEARING DATE(S) : 26/04/00, 27/11/00, 28/11/00,29/11/00, 30/11/00, 09/02/01, 16/02/01 JUDGMENT DATE : 1 March 2001

PARTIES : Crown Frederick Keith Brewer JUDGMENT OF : Bell J at 1

COUNSEL : Mr L Grey - Crown Mr D Stewart - Accused SOLICITORS : SE O'Connor - Crown Ross Hill & Associates - Accused LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 DECISION : Sentenced to 20 years and 6 months imprisonment. Non-parole period of 15 years and 4 months specified. Sentence is expressed to commence on 3 January 1999. First date eligible for consideration for release on parole 2 May 2014.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

Thursday, 1 March, 2001 70032/99 - REGINA v Frederick Keith BREWER

SENTENCE

1 HER HONOUR: On 27 November 2000 the prisoner was arraigned before me on an indictment charging him with the murder of Glen Reay at Kamarah on 2 January 1999. He entered a plea of not guilty and a jury was duly empanelled. On the fourth day of the trial the prisoner indicated that he wished to change his plea to one of guilty. In accordance with s 399A of the Crimes Act 1900 (as it then stood) I accepted the plea and discharged the jury from giving verdict in the matter. I found the accused guilty of the murder of Glen Reay and stood the matter over to 9 February 2001 for submissions on sentence. 2 On the evening of Saturday 2 January 1999 the prisoner together with his co-accused, Jeffrey Wayne Tucker, Richard Charles McNellee and Rodney Joel Dalley, made arrangements to lure the deceased to the vicinity of a wheat silo by a railway siding just outside the village of Kamarah with a view to stealing a relatively small quantity of cannabis from him. The prisoner McNellee, who was not known to Reay, telephoned him and set up the meeting. The four who were variously armed with a machete, a knife and a pick handle planned to confront the deceased at this isolated meeting spot both to steal his drugs and to beat him up by way of a lesson. A short time earlier, the prisoner had purchased a deal of cannabis from the deceased through his co-accused, Jeffrey Tucker. He believed that at least half of the cannabis supplied on that occasion had been worthless. This incident appears to have supplied the motive for the scheme to teach the deceased a lesson. 3 The deceased drove to the meeting place in his Toyota Cressida. He was accompanied by a family friend, Frank Cosson. Prior to his arrival at the scene, the prisoner and his three compatriots had taken up positions in the vicinity of the wheat silo. 4 Mr Cosson gave evidence at the trial. He said that once he and the deceased arrived at the scene a man had got into the back seat of the Cressida and asked to inspect the cannabis. It is common ground that this man was the prisoner Richard McNellee. After looking at the cannabis McNellee alighted from the vehicle saying that he would go and get his money. Shortly thereafter Mr Cosson heard a whistle and there followed a furious attack upon the Cressida. The driver's front window was smashed and a young man with blonde hair dived through the window. That young man became involved in a struggle with the deceased. McNellee got into the back seat of the vehicle with a machete. The prisoner, Tucker, stood on the passenger side of the vehicle holding a knife and a pick handle. Mr Cosson said that four men were involved in the attack. He saw a pair of hands come in through the driver's side window and take hold of the ignition key at a time when the blonde headed young man was still partially inside the cabin struggling with the deceased. That young man was making gestures consistent with stabbing the deceased in his side. The deceased told Mr Cosson that he had been "stuck". Mr Cosson put his arm across the front of the deceased and felt a wet and sticky substance. I will refer to this episode as the first phase of the attack. 5 The deceased started the vehicle and attempted to drive away. By this stage McNellee had alighted from the car. The young blonde headed man levered himself out of the vehicle. The vehicle stalled. It was started again and the deceased commenced to drive off. One of the attackers put his hands through the driver's window and grabbed hold of the steering wheel pulling the car towards an embankment. The vehicle ended up lodged on the embankment where it came to a halt. 6 Mr Cosson looked over to the deceased and saw that he had sunk well down in his seat and was starting to slump over. He appeared to be losing energy such that he was "almost lifeless". The deceased looked at Mr Cosson and nodded his head backwards saying the words "houses" and "you go". As Mr Cosson was about to get out of the car he saw the deceased open the driver's side door. Mr Cosson got out of the car and ran generally in the direction of the township of Kamarah. He heard the sounds of people pursuing him calling out "stop him" and "kill him". 7 The deceased's body was found some distance from the Toyota Cressida. Ambulance Officer Devlin, in a statement dated 12 January 1999, gave an account of the appearance of the body when he saw it at around 10.50 pm that evening. The deceased was lying on the ground on the silo side of the railway close to the tracks. The body was lying on its back with the legs together and straight. The arms were across the chest. Mr Devlin observed a build up of dirt around the thongs worn by the deceased, especially between the soles of the feet and the heel of the thongs. The ground directly in front of the feet appeared to have been flattened for about a metre. Officer Devlin considered the deceased's position to be an unnatural one. An examination of the photographs of the body in situ supports that view. 8 Dr Botterill conducted the post mortem examination. His findings included (i) that the deceased had suffered a stab wound to the left side of the chest, which pierced the lung and allowed blood to surround the lung (ii) a stab wound behind the right shoulder which cut into the artery to the right arm and allowed bleeding into the adjacent tissues (iii) a stab wound behind the right calf which allowed bleeding into the muscles surrounding the artery in the right calf, and (iv) a number of other stab wounds to the face, torso and limbs. In all, Dr Botterill observed twenty one stab and incised wounds. The attack upon the deceased was plainly one of considerable ferocity. 9 Mr Cosson made good his escape and summonsed help. Police and ambulance officers were on the scene within a short interval. Inquiries rapidly led police to premises at 5 Train Street, Kamarah. These were premises at which the prisoner lived with his father, his co-accused Jeffrey Tucker, and his fiance, Beth Dendtler. Rodney Dalley and Richard McNellee were also staying at the premises at this time. 10 Following the attack on the deceased the offenders made attempts to wash their clothing and to hide the weapons in various locations at the Train Street premises. At 9.40 am on Sunday 3 January 1999 police executed a search warrant at those premises. Each of the four offenders was arrested. The McNellee co-operated with police from the outset taking them around the house and yard pointing out where the weapons had been hidden. 11 The prisoner was interviewed at the premises by Detectives Kreuzer and Blanchard. That interview was recorded on a hand-held tape recorder. The prisoner made some admissions during that interview. I propose to briefly outline the circumstances in which those admissions were made. 12 In the course of evidence given during a voir dire hearing at the trial, the prisoner said that he had felt uncomfortable when he saw McNellee standing near a pole pointing at him. The black handled knife (which the prisoner admitted to having handled) was concealed inside that pole. The prisoner agreed that he had wanted to give his account to the police "I wanted to tell them that I didn't have to do with that knife, I dropped it down there but I didn't use it". 13 In the course of this initial interview, consistent with the evidence I have summarised, the prisoner told police that he had dropped the knife down the big metal pole. He denied stabbing the deceased. He gave an account that the prisoners McNellee, Tucker and Dalley had been trying to ring the deceased for a few hours. He did not know what arrangement had been made. He was told to come over with them. When he asked "why?" they had said "We're just getting some smoke, just wanna make sure nothing goes wrong". The prisoner told police he had not wanted to be part of it, but had agreed to go over. 14 He gave an account of the deceased's car pulling up at the scene and of the man McNellee getting into the car. He had seen a scuffle take place at the car. He did not admit to any involvement in that incident. 15 Significantly, having regard to a submission advanced on the prisoner's behalf concerning some admissions he was later to make, it is to be noted that in this initial interview the prisoner said that he thought that Rodney Dalley had been in possession of the machete. In the course of the initial interview, the prisoner agreed that he had gone over to the vicinity of the railway siding with the intention of "ripping off" the deceased. He was aware that at least some of his associates were armed. The prisoner said that Jeffrey Tucker had purchased an ounce of cannabis from Reay about three weeks earlier and that half of it was of no value. The prisoner was aware that they were proposing to take Reay's drugs without giving him money for it. 16 The prisoner participated in an electronically recorded interview at the Griffith Detectives' office on the evening of 3 January 1999. During the early stages of that interview the prisoner maintained an account broadly consistent with that which he had given Detectives Kreuzer and Blanchard at the Train Street premises. Towards the conclusion of the interview the prisoner volunteered: "OK … I got, I might as well tell you. I, I stabbed the cunt. Q.378 Well, why didn't you tell us that? A. Because I'm trying to cover myself up. I don't know, I think he had a gun and he was going to shoot me. Q.379 Well, tell us the truth. How many times did you stick him with the knife? A. I don't know, about four or five times. Q.380 And why did you do it? A. Because I thought, as he got out of the car he was like this, he was gettin' out of the car and he was going like this with his hand and I thought he had a revolver, a gun or something and he was trying to load it and shoot me. Q.381 But he didn't have a gun, did he? A. I don't know. Q.382 So what did you do? A. So I stabbed him. Q.383 How did you stab him? Describe how you stabbed him? A. I just went bang, bang, bang, bang, and then he said, "Oh well I'm fucked" and I pushed him over took his drugs and went home."