R v BROWN [2004] NSWSC 194

New South Wales Supreme Court

CITATION : R v BROWN [2004] NSWSC 194 HEARING DATE(S) : 6 February 2004 JUDGMENT DATE : 6 February 2004

JUDGMENT OF : Hulme J at 1 DECISION : See paragraph 43

PARTIES : Regina Ross Ernest BROWN FILE NUMBER(S) : SC 70017/03 COUNSEL : Crown: Mr P Creasey Prisoner: Ms C Davenport SOLICITORS : Crown: SE O'Connor Director Public Prosecutions Prisoner: P Krisenthal Legal Aid Commission

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HULME J

Friday, 6 February 2004

70017/03 RE: REGINA v Ross Ernest BROWN REMARKS ON SENTENCE 1 HULME J: On 27 November last, the prisoner was convicted by a jury of having, on 2 June 2000 at Anna Bay, murdered his wife. It now falls upon me to sentence him. In that process, I am bound by the findings implicit in the jury's verdict and to be satisfied beyond reasonable doubt of any other matters I use in a manner adverse to the prisoner. The standard of proof of matters that argue in mitigation is proof on the balance of probabilities. 2 Mrs Brown died as a result of being struck a number of times on the head with a blunt object which, I am satisfied, was a statue used in the household as a doorstop for the front door and weighing something of the order of seven and a half kilograms. 3 It seems practically certain that Mrs Brown was last seen alive by anyone other than the prisoner at about 8.30am when two of their children left for school. A third child had left somewhat earlier, being driven by the prisoner who then returned to their home. 4 Some time later, the prisoner again departed, his time of departure being a matter of some controversy. The prisoner then spent much of the day in the Anna Bay Tavern, although it may well be that before arriving there at or prior to about 10.30, he took his dog for some exercise on a local beach. The prisoner ultimately left the hotel at about 2.30pm, driving home. He entered the house and after some time left, running to a neighbour's house in a state of apparent distress. 5 Thereafter, both on 2 June and later, he has maintained the stance that he was not involved in his wife's death; that it occurred between the time he left the house that morning and his return in the afternoon; and that the first he knew of the death was when he entered the house in the afternoon. 6 It is implicit in the jury's verdict in light of the issues and evidence in the trial that this stance is false. I am not sure that it is necessary to do so but in this connection I would add that I was satisfied to the requisite standard by the evidence of Mrs Morrison that she had seen the prisoner's car at his house at about 10 past 9. 7 A question arises as to how the prisoner came to kill the deceased. I may say immediately that I am not satisfied that there was any pre-meditation in this regard. Indeed, I think the probabilities are that there was not and that her death was the result of an outburst of anger or violence in the course of an argument. In this connection, there is evidence from a number of witnesses that is relevant. 8 A neighbour, Mrs Saunders, said that about 5 past 9 she heard sounds indicative of an argument and annoyance on the part of the prisoner. However, Mrs Saunders' evidence in this regard was at odds with the statement she had made on 3 June 2000 to the effect that she could not recall any occasion on which the Brown's had fought or yelled at each other; that they seemed to be very happy together and so far as she knew, they had no marital problems. 9 Mrs Saunders also gave evidence suggestive of the possibility that her recollection may have been inspired by remarks of at least one other person. She is an extremely nervous person and has had counselling in the course of which she discussed and, to some extent, cast doubts on her memory of events. I do not suggest for one moment that her evidence was deliberately untrue but having listened to her, I am not disposed to place any weight on the evidence she gave. 10 On the other hand, I am satisfied that the relationship between the prisoner and deceased was less than perfectly harmonious. For example, the prisoner had some suspicions that the deceased may have had one or more affairs. He mentioned the possibility to Mr Austin and Mr Mitchell and, depending on the interpretation one gives to the words "funny business", possibly to Mr Martin. 11 But what I think is more important are financial matters. I am satisfied that the deceased was the money manager and had control of the family finances and the prisoner a spendthrift, who tended to spend a great deal on drink and gambling. There was evidence that I accept, that if he had money in his pocket he would spend it and was hopeless with money. There was one occasion referred to in evidence when the prisoner spent a couple of thousand dollars through the poker machines. When the deceased found out she, in the prisoner's words to a witness Mr Edwards, "kicked him out". He went back home but was apparently forced to live in the garage for a while. The deceased gave the prisoner an allowance to live on each week. She was tough, and if the prisoner wanted more, he had to work really hard to get it. 12 The prisoner, who had worked in a coal mine, had been made redundant on 30 September 1999. He had little work thereafter. The deceased had continued to work and on at least occasion had complained to the prisoner about having to go to work while he did not. The prisoner's attitude was that he had worked all his life and now it was his wife's turn. 13 Following his cessation of work in the coal industry, a house the prisoner and the deceased owned and lived in Singleton had been sold and the family moved to Anna Bay. The prisoner had owned another property at Tanilba Bay. It was his. For some time he had enjoyed the income from it and the deceased had no interest in that property. There were grounds for thinking that the prisoner took some pride or satisfaction in this or in the degree of independence that it gave him. Thus the prisoner used to say to one of the witnesses, Mr Austin, that the house at Tanilba Bay was his to do with it whatever he wanted and it had nothing to do with the deceased. 14 At some stage this property was sold, apparently with the intent that the proceeds or, at least, most of them would be used with other monies principally the proceeds of the jointly owned house in Singleton to purchase another home in Anna Bay. Mr Austin gave evidence that the prisoner seemed happy enough with this arrangement. 15 However, it would seem that not long before the deceased's death, the prisoner was concerned about financial matters within the household. Some weeks before 2 June, the prisoner had said to a friend, Mr Mitchell, that his wife was having an affair and that there were large amounts of money missing from their accounts. A couple of days before the deceased's death, an in response to a question from another friend Miss Lacey, "How's it going with Judy", the prisoner had said "I'll give her 'til Friday". Friday was the day on which the deceased met her death. 16 On the day before, the accused phoned Mr Martin, an employee with the National Bank at Nelson Bay and said "My wife has a term deposit in her name solely. How can we get that placed into joint names because there's some funny business going on, if you know what I mean". Mr Martin told the prisoner, in effect, that he would need his wife's authority to put the deposit into joint names. 17 The financial records which were in evidence provide some explanation for this apparent concern. In February 1999, a fixed deposit in the name of the deceased and prisoner and in the sum of $35,000 had been made. This was rolled over in May but in September 1999, on instructions of the deceased, was rolled over into her name alone. As has been said, the prisoner's house at Tanilba Bay was sold. Proceeds in sums of, in round figures, $84,000 and $6,500 were in April 2000 paid into a joint account. Of that money, $80,000 was withdrawn. It was added to the money on fixed deposit in the deceased's name and it may be inferred that it was this deposit which the prisoner discussed with Mr Martin. 18 There were also other financial concerns, albeit of perhaps a smaller nature which the prisoner had at and shortly before the time of his wife's death. By 31 May the joint account into which the proceeds of Tanilba Bay had been paid was overdrawn. After the transactions to which I have referred in the immediately preceding paragraph occurred, that account had had a credit balance of some $8,400 and at least one salary and one pension payment were later made into it. All of the withdrawals after 18 April were made by the prisoner. 19 Rent for 24 Clonmeen Circuit, the home of the family, was not paid for the period after 26 May. This was the first time that had occurred. The prisoner had rung the agents on 31 May and said that he would be in the next day but did not turn up. On 29 May he had seen a Mrs Windeatt of Centrelink. On that occasion he was, in her words, "very short and very agitated." They discussed the rates of payment he and his wife would receive. The prisoner remarked "She gets all the money and I get nothing". On 30th or 31 May the prisoner sought unsuccessfully to borrow $250 from Mr Mitchell. On 1 June, the prisoner borrowed $20 from a Mr McGuire and was given another $20. 20 It should also be mentioned that the deceased too had financial concerns. In March she had told her mother that "We have been dipping into the savings too much". In early May she expressed similar concerns to her brother. Later that month she told her father that she had put away a hundred and thirty thousand dollars for a house and nobody was going to get it. A hundred and thirty thousand dollars is not identical with the amount which the deceased had on fixed deposit but it seems not unlikely that the fixed deposit was at least the bulk of the money to which the deceased was referring. 21 These matters provided fertile ground for disagreement or argument on 2 June between the prisoner and the deceased and his remark to Miss Leacy that he would give the deceased until Friday, that is 2 June, provides grounds for thinking that events might have come to a head that day. 22 I do not find this evidence sufficient to justify a positive conclusion beyond reasonable doubt that there was any disagreement or argument between the prisoner and the deceased shortly prior to her death or that any argument related to financial matters, although, I am persuaded of it as a matter of probability. 23 Such a conclusion argues for the prisoner's actions in killing the deceased being unpremeditated and arising in circumstances of anger or other emotion. Lest it be thought that I have overlooked the possibility, I should add that there is no sufficient or indeed reasonable basis for a conclusion which would have to be beyond reasonable doubt that the remark to Miss Leacy was inspired by thoughts of killing the deceased. 24 Nor is there evidence which persuades me beyond reasonable doubt that the prisoner intended to kill his wife although it may be acknowledged that the nature and number of her injuries points in that direction. Furthermore, it is clear that the prisoner persisted in his attack in circumstances of the deceased defending herself. 25 However, it seems to me that the circumstances are also consistent with the prisoner lashing out without forming any intention other than to strike and hurt hard. The evidence in the trial of the relationship between the prisoner and deceased shows such conduct to have been out of character. 26 I turn to subjective matters. The prisoner was born in July 1957. He told a psychologist who examined him between conviction and the time of sentence that he had a good childhood. There is no evidence to the contrary. He has a number of convictions prior to 1984 principally for the possession or use of illegal drugs, mainly cannabis; three for driving with an excess quantity of alcohol in his blood and other matters associated with use of a motor vehicle. Among his antecedents there is only one offence of violence, an assault for which he was fined $50 but I do not regard any of the prisoner's prior offences as of any present relevance. His last conviction was in November 2000. 27 For a time, when relatively young, he used heroin in limited quantities and for a limited time. He would seem to have not used it from the time that he was in mid-twenties until after his wife's death. In 2001, he commenced on Methadone and this has continued in prison since his trial. It would seem that he has also used amphetamines not infrequently. However, there is nothing on which to base any conclusion that the prisoner's indulgence in illegal drugs is of present relevance. Evidence both in the trial and in the sentencing proceedings, the latter in the form of the reports to which I have referred persuades me that the prisoner has indulged in alcoholic ingestion to a far greater extent than the vast majority of the community would regard as normal and to a degree that is at least health threatening. 28 Except in so far as it may have inspired a, and reflected on the extent to which he was in, need of funds at the time of his wife's death, I do not regard this indulgence as having any relevance to her death. The prisoner seems to have been employed for most of his adult life. He married the deceased in about 1982. The prisoner gave a psychiatrist who interviewed him the impression that his marriage had been good overall, although there had been some rough bits. That impression is consistent with the impression I derived during the course of the trial. 29 There are three male children of the marriage aged between 10 and 19 and I am satisfied that the prisoner's relationship with them has been normal and caring. Subject to the constraints prison imposes, that relationship continues. Two have been present in court during the sentencing proceedings. It having been thought undesirable that the youngest child should be. 30 As I have said, since his conviction, the prisoner has had consultations with the psychiatrist Dr Lucas and a psychologist Dr Lennings. The former remarked that the prisoner had no history of psychiatric disorder; presently required no psychiatric treatment; and that there are no strong indications that he will present a significant risk for violent conduct in the future. Dr Lennings said that psychological investigation did not reveal any specific cognitive impairments or major psychological disorders that would indicate difficulties with the prisoner understanding or being able to control his behaviour. 31 Dr Lennings does however record that Mr Brown told him that in the past he used to have very poor control over his tempter. I do not find it necessary to rely on these remarks but they are consistent with what I see as the most likely explanation for his killing of the deceased. Dr Lennings also recorded that observation of the prisoner's behaviour suggested a person who appeared able to contain himself. 32 To both of these experts, the prisoner maintained that he was innocent of his wife's death. Consistently with this his earlier denials to the police and his plea of not guilty, it is obvious there is no evidence of contrition. That said, I see no grounds for positively concluding that the prisoner is not remorseful and therefore requires a longer period of incarceration than might otherwise be the case. 33 Section 19A of the Crimes Act, the statutory provision presently relevant, provides that a person convicted of murder is liable to imprisonment for life. However, it is also the law that notwithstanding the effect on all murder victims is death, a sentence of life imprisonment is reserved for cases which can fairly be described as within a worst category. To those unfamiliar with the gradations that the law involves, I may point out that premeditated murders committed simply for financial gain or with great cruelty or multiple murders are liable to fall into the worst category. The prisoner's offence did not. It, and he, must be judged against a very imprecise scale of criminality. 34 The law also makes it clear that the purposes of punishment for offences are various. These purposes include principally deterrence of others inclined to offend, deterrence of the offender from re-offending, rehabilitation of the offender, protection of the community and retribution or, as I think is encompassed within that expression, the community's entitlement to feel justice has been done. 35 I have had regard to all of these matters in arriving at the sentence I have determined to impose. I have also had regard to the lengthy lists of matters referred to in section 21A of the Crimes Sentencing Procedure Act. In relation to those matters, I should say that I regard the prisoner as someone unlikely to re-offend and to have good prospects of rehabilitation. I do not regard it as necessary or useful to embark on a dissertation concerning all of the matters in those lists which are, or may be, of some relevance. 36 I acknowledge that I have received Victim Impact Statements from the deceased's mother and father. I have read them but the use to which such statements can be put in a case such as this is limited - See Pravitera (1997) 94 A Crim R 76 But in saying that, I do not forget that the dominating feature of any conviction for murder is that the person convicted has caused the death of another human being. 37 I have also had regard to a significant number of prior decisions of the Courts in other cases of murder. Included in these are, R v Elphick [2000] NSWCS 977, where a sentence of fifteen years with a non-parole period of twelve years was imposed; R v Van Teo Cao fifteen years with a non-parole period of ten and a half years; R v Wai Sung Cheung (unreported CCA, 11 December 1995), minium thirteen and a half years with an additional term of four years; R v Hunt [2002] NSWSC 66 fourteen years with a non-parole period of ten years; R v Joseph [2003] NSWSC 1080 fifteen years with a non-parole of eleven years; R v Keir [2003] NSWSC 140 twenty-two years with a non-parole period of sixteen years; R v Mankotia [2001] NSWCCA 52 minimum term twelve years with an additional term of four years; R v Mehmet [2002] NSWSC 1154 eighteen years including a non-parole period of thirteen and a half years; R v Nixon (unreported CCA, 31 October 1995) minimum term of thirteen and a half years with an additional term of four and a half years; R v Prior [2002] NSWSC 56 sixteen years including a non-parole period of twelve years; and R v Szarbo(unreported Wood CJ at CL, 9 September 1998) a minimum term of ten years with an additional term of five years; R v Toki [2003] NSWCCA 125 a head sentence of 22 years including a non-parole period of sixteen years and six months; and R v Walkington [2003] NSWSC 517 a head sentence of eighteen years including a non-parole period of twelve years. 38 There are clear similarities between many of these cases and that here. There are also many differences. In some, the sentences reflect the discount commonly given for pleas of guilty and to which the prisoner is not entitled. Some of the cases include sentences that strike me as surprisingly lenient. However, as a group, these and the other cases to which I have had regard, provide both a guide and a check against which the sentence I am disposed to impose may be judged. 39 It was submitted on behalf of the prisoner that I should find special circumstances. Reliance was placed on the fact that he is almost forty-seven now and will be nearly sixty or perhaps over sixty at the time of expiration of any likely non-parole period. Attention was drawn to the fact he still has the support of his family and that any period of incarceration which could possibly be under consideration will mean that he will miss out to a very large extent on the development of his children's lives. Reliance was placed also on the fact that he has never been to prison before, a fact commonly regarded as justifying a finding of special circumstances and that there will be a need for rehabilitation in any parole period. 40 The conclusion of which I have arrived however, is that I do not in the circumstances of this case regard those matters as special circumstances or perhaps more precisely special circumstances which inspire me to reduce the non-parole period below the seventy-five per cent common of the head sentence. 41 In arriving at that conclusion, I am influenced by the view that no lesser non-parole period that I intend to impose provides an adequate reflection of the criminality involved in the prisoner's offence. 42 The prisoner has already been in custody for some twenty weeks prior to his conviction on 27 November 2003 and has been in custody since that time. It is, accordingly, appropriate to backdate the commencement of his sentence on my calculations, and I invite Counsel to check, to 10 July 2003. 43 Subject to being persuaded that there should be any variation in that date, the order I make is as follows. Would you stand up please Mr Brown? I order that you be imprisoned for a term of eighteen years commencing on 10 July 2003. I fix a non-parole period of thirteen years and six months, also commencing on 10 July 2003. It appears to me that you will be eligible for release on parole on 10 January 2017. You may sit down. **********