Supreme Court New South Wales Medium Neutral Citation: R v Brooks [2012] NSWSC 505 Hearing dates: 27/04/2012 Decision date: 18 May 2012 Before: Fullerton J Decision: Imprisonment for 38 years comprised of a non-parole period of 28 years and 6 months to date from 10 February 2010 and expiring on 9 August 2038, with a balance of term of 9 years and 6 months expiring on 9 February 2048. Catchwords: CRIMINAL LAW - sentence - murder - contract killing - parity - objective seriousness - whether life sentence should be imposed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Knight v R [2006] NSWCCA 292; 164 A Crim R 126 Muldrock v R [2011] HCA 39; 244 CLR 120 R v Coulter [2011] NSWSC 1176 R v Kalajzich (1997) 94 A Crim R 41 R v Lewis [2001] NSWCCA 448 R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Ryan; R v Coulter [2011] NSWSC 1249 R v Twala (NSWCCA, 4 November 1994, unreported) R v Willard [2005] NSWSC 402 Category: Sentence Parties: The Crown Kenneth Harold Brooks (Offender) Representation: W Creasey (Crown) C Davenport SC (Offender) Director of Public Prosecutions (Crown) Moin & Associates (Offender) File Number(s): 2010/37148 REMARKS ON SENTENCE 1HER HONOUR: Between 8.40pm and 9.35pm on 23 October 2009 Jeffrey Ryan was killed at his country property at Duri, 20km south of Tamworth, when the shot fired from a 12 gauge shotgun penetrated his chest and abdomen and the right side of the lower lumbar area, indicating that he was shot from the back and slightly to his right. He died within minutes from extensive internal injuries. He was found by a neighbour the following morning face down in the yard not far from a temporary dwelling he was occupying having separated from his wife, Helen Ryan, who occupied the main house on the property with their daughter. The defendant was aged 48. 2The murder weapon was not recovered. Ballistics established that two shots were fired over a distance of approximately 10 metres. The other shot struck a shed. The evidence does not establish which shot was fired first. The Crown case theory was that the deceased was attracted by the arrival of a car entering his property and went outside to investigate when he was confronted by the killer and that he was shot as he sought to retreat. 3On 10 February 2010, after an extensive police investigation, this offender was arrested and charged with the murder of the deceased. His arrest was the culmination of an undercover operation which was launched as part of the wider investigation in which this offender together with the deceased's wife and her mother, Coralie Coulter, were suspects. On 10 February 2010, Coralie Coulter was also arrested and charged with the murder of the deceased. Helen Ryan had been charged with his murder on 15 December 2009 but had been released to bail. On 10 February 2010 her bail was revoked. 4On 14 December 2011 this offender was convicted of murder after trial. In a separate trial convened before Latham J, Helen Ryan and Coralie Coulter were also convicted of murder. Helen Ryan was sentenced to imprisonment for 36 years comprised of a non-parole period of 27 years and a balance of term of 9 years and Coralie Coulter to imprisonment for 27 years comprised of a non-parole period of 18 years the balance of term of 9 years. The statutory ratio was altered in her case because of her age and the probability she would die in gaol (R v Ryan; R v Coulter [2011] NSWSC 1249). 5Ganene Coulter, Helen Ryan's sister, was also convicted and sentenced for her involvement in the murder. By her plea of guilty to a conspiracy with her sister and mother to murder the deceased, Ganene Coulter admitted to having arranged with Ian Carroll, a friend of hers, for her sister to be put into contact with a person he knew who would be willing to murder her sister's husband. Ganene Coulter was sentenced to imprisonment for 11 years and 2 months with a non-parole period of 7 years and 6 months after agreeing to give evidence against her sister, her mother and this offender (see R v Coulter [2011] NSWSC 1176). 6Principles of parity will influence the sentence to be imposed on this offender. 7It was not in dispute at the offender's trial that the person who murdered the deceased was contracted by Helen Ryan to have her husband killed and that she did so with the concurrence and active involvement of her mother and her sister. Ganene Coulter gave evidence that her sister told her that she had met with the man who was to carry out the murder by prearrangement in Tamworth. She said she had given him a photograph of her husband and that she had transferred $500 into his bank account for expenses. She said that her sister told her that $30,000 was negotiated as the fee that the contract killer would be paid for the killing, and that a part payment of $15,000 was paid to that person at a prearranged meeting in a park at Murrurundi. Coralie Coulter gave evidence that she travelled with her daughter, Helen Ryan, to this meeting and that the $15,000 (of which she contributed $10,000) was provided. She claimed not to have seen who the money was given to. 8The issue at trial was whether this offender was either the person who shot and killed the deceased or, in the alternative, that he was present when the deceased was shot by an unidentified person knowing that the shooter would discharge the shotgun with the intention of killing the deceased. The Crown asked that the alternatives be left to the jury because the available forensic evidence did not indicate whether the shooter was alone or in company. 9I am satisfied for sentencing purposes, and to the criminal standard, that this offender discharged the shotgun and that he acted alone in fulfilment of a cold-blooded plan initiated by Helen Ryan to have her husband killed. There is simply no evidence to suggest the involvement of anyone other than this offender in the shooting. The evidence at trial bearing upon that question was overwhelming. The offender did not give evidence. 10For sentencing purposes I am also satisfied that the offender's account to police upon his arrest that he did not know anyone called Helen Ryan or Ian Carroll; that he had never been to Tamworth; and that he had lost his mobile phone before the first of literally hundreds of calls passed between his phone and Helen Ryan's phone and his phone and Ian Carroll's phone, was a connected series of lies. I am satisfied that the comprehensive schedule of telephone calls tendered in the Crown case, which revealed extensive contact between this offender's phone and the phone used by Helen Ryan between about April and October 2009, and on multiple occasions on each of the days immediately preceding the murder and on the day of the murder, was for the purposes of planning for and ultimately finalising arrangements for the murder. A series of tracked telephone calls between this offender and Helen Ryan and his girlfriend from telephone towers at various locations as he drove from Cessnock to Tamworth on the day of the murder and on the return journey to Cessnock after shooting the deceased, and a similar series of tracked calls on the day that Helen Ryan gave the killer $15,000 as a down payment for the murder, puts this beyond doubt. 11There was also a number of intercepted telephone calls between this offender and Ian Carroll where, in deliberately coded language, Helen Ryan's arrest in December 2009 was discussed, and in January 2010 further calls, in similarly elliptical language, where tentative arrangements were made for the balance of the contract fee to be paid. This was further evidence eloquent of this offender's guilt as was the covertly recorded conversation between him and Helen Ryan when undercover police officers, posing as intermediaries, drove an unsuspecting Mrs Ryan to the offender's home in Cessnock in February 2010 when he was given $15,000 in cash in what Helen Ryan believed was an arrangement the intermediaries had made with him to receive that payment. 12While there was evidence led at trial that Helen Ryan told her sister that she was being mistreated by the deceased and that he had assaulted their daughter and that she wanted him harmed for that reason, I am satisfied that was simply a reflection of her manipulation of the truth to advance her overriding motivation to have her husband killed in retaliation at his withdrawal of affection for her and the transfer of his affection to another woman and to ensure that she would benefit from his death in a greater share than she might otherwise expect from a property settlement following their divorce. There is no evidence as to what Helen Ryan told this offender was the reason she wanted her husband killed or what he believed might have been her motives. Even were he to have been told the deceased had abused her or her daughter in some way, the bare and chilling fact is that this offender killed a defenceless man who was a stranger to him for money. I am also satisfied that he negotiated the terms of that trade and that he was paid $15,000 of the contract fee. The fact that the balance was paid in the undercover operation four months after the murder cannot be construed as any change of heart on his part. His concern that he might be implicated in the murder were he to insist on full payment was clear from the way in which he sought to distance himself from Helen Ryan when he learnt of her arrest from Ian Carroll in the intercepted calls in December 2009. 13There is no evidence that Helen Ryan had any involvement in deciding how her husband would be killed or that she furnished the shotgun. Although the probabilities favour a finding that the ultimate arrangements and manner of death were part of this offender's contractual obligations, I am unable to be satisfied that Helen Ryan did not participate in settling those arrangements to the criminal standard. It is difficult to understand the need for the frequency of contact between them were that the case. There is evidence that Helen Ryan was well aware that the offender planned to kill her husband by shooting him at the property on the evening of 23 October 2009 (and, it would seem, leaving him to be found by her the following morning, an arrangement which was interrupted by the untimely arrival of neighbours) and that her contact with the offender that evening by telephone was to confirm that her husband was alone in his living quarters. I am satisfied, however, that this offender provided the weapon. Although there is no evidence as to how he secured access to the shotgun or whether the gun was his, that does not carry any particular weight one way or another in assessing the criminality reflected in its use to murder the deceased. 14In a report from Dr Furst, a forensic psychiatrist, tendered in the sentence proceedings the offender maintained his denial of any involvement in the murder repeating that he "was never there [at Tamworth] and that he had been stitched up big time". He will be sentenced on the basis of his complete lack of remorse or contrition. 15During the course of sentence proceedings Brodie Ryan, Jenny Ryan and Wendy Edwards, respectively the son and sisters of the deceased, read victim impact statements that were also formally tendered. They described the deceased from their different experiences of him as a loved and irreplaceable family member. It is beyond question that the circumstances in which he was killed has occasioned them the deepest grief. Their determination to retain their memory of him as a supportive and generous father and brother is a measure of their strength and fortitude in the face of loss. I extend my sympathies to them. 16The only evidence in the offender's case on sentence was Dr Furst's report. From the information the offender provided to him, the following can be gleaned. 17He is currently 47 years of age. He was educated to Year 8 after which he worked in a sawmill and a poultry and dairy farm. He has a work history as an interstate truck driver and at one time owned his own truck. 18He was not working at the time of the offence. He was involved in a truck accident at some unspecified time in the past from which he suffered multiple injuries, including head injuries, which caused memory loss and concentration problems. The offender reported that he started using amphetamines around 1996 in order to get back to work as a driver, using 2 to 3g of the drug a day. He reported that in the 12 months prior to his arrest he was abusing amphetamines, including crystal methamphetamine, using approximately 1g every 2 to 3 days at the time of his arrest. Dr Furst considered this justified a diagnosis of amphetamine dependence. He did not work for two years after the accident. In 1994 he was exposed to the traumatic experience of a person who ran into him, apparently in an act of committing suicide, which Dr Furst considered justified a current diagnosis of a post-traumatic stress disorder. 19The offender's de facto relationship of 26 years duration broke down in 2006 which caused him to suffer an emotional breakdown isolating himself from others and refusing offers of family support. He has three adult children. There is no evidence as to whether he has any continuing relationship with them. He was involved in a de facto relationship of four years duration at the time of his arrest and at the time of his offending. There is no evidence as to whether he has any continuing relationship with that woman. 20Dr Furst was of the view that the offender may have an underlying cognitive impairment and that his adjustment to the community in the future will require treatment and monitoring. He went on to report that the offender is also likely to need ongoing specialist medical input within the prison system for his multiple medical problems, including his pain management needs. 21Because the offender is to be sentenced for murder, I am obliged to consider the operation of s 19A and s 21 of the Crimes Act 1900 and, because the Crown has submitted that a life sentence should be imposed, s 61 of the Crimes (Sentencing Procedure) Act 1999 also needs to be considered. 22Section 19A of the Crimes Act provides: (1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). ... 23Section 21(1) of the Crimes (Sentencing Procedure) Act provides: If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term. 24The offence also attracts a standard non-parole period of 20 years. Both statutory provisions need to be considered in the calculation of sentence having regard to the objective circumstances of the offence and the subjective circumstances of the offender (Muldrock v R [2011] HCA 39; 244 CLR 120). 25Section 61(1) of the Crimes (Sentencing Procedure) Act provides: A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. 26In Knight v R [2006] NSWCCA 292; 164 A Crim R 126, this Court reviewed the operation of s 61 of the Crimes (Sentencing Procedure) Act. McClellan CJ at CL said at [23]: Section 61(1) has been the subject of consideration in a number of decisions. It is not necessary to analyse them for present purposes beyond a statement of the following principles: the maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451-452. it is not possible to prescribe a list of cases falling within the worst category - ingenuity can always conjure up a case of greater heinousness: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 478; R v Petroff (unreported, 12 November 1991 - Hunt CJ at CL). a life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment; R v Kalazich (1997) 94 A Crim R 41 at (50-1); R v Baker (unreported, CCA 20 September 1995); R v Garforth (unreported CCA 23 May 1994). in many cases a two stage approach to the consideration of whether the maximum penalty should be imposed is appropriate. Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50. ... 27In R v Merritt [2004] NSWCCA 19; 59 NSWLR 557, Wood CJ at CL (Tobias JA and Hidden J agreeing) held that the focus of s 61(1) is to assess whether the offender's culpability for murder is so extreme that the community's interest in any combination of retribution, punishment, community protection and deterrence could only be met with the imposition of a life sentence (subject only to the discretion to which I have referred). The absence of any one of the statutory criteria is not determinative although the conclusion that a life sentence is required may be more difficult where the evidence of future dangerousness is, for example, moderated by the age of the offender and the likely length of a determinate sentence, or the absence of any relevant criminal record. 28The Crown submitted that it had discharged the burden of establishing to the criminal standard that this offender's culpability meets the statutory criteria in s 61 (see R v Olbrich [1999] HCA 54; 199 CLR 270). He submitted that a person who kills under contract is in the worst category of cases of murder and that this killing of a defenceless man who was a stranger to the offender, coupled with there being nothing in this offender's subjective circumstances to justify a lesser sentence, warranted the imposition of a life sentence. 29While premeditation alone, even coupled with financial motives for a killing, does not necessarily place a case in the worst category (see R v Willard [2005] NSWSC 402), contract killings are frequently referred to in the authorities as prima facie in the worst category and have been found to fall in the worst category of case attracting a life sentence (see the cases cited in R v Lewis [2001] NSWCCA 448 at [60]), although as Hunt CJ at CL in R v Kalajzich (1997) 94 A Crim R 41 recognised at [52], there may be contract killings which do not attract the maximum penalty. What is critical when a life sentence is under consideration is for the sentencing court to identify the particular features of the individual case which are relied upon by the Crown as justifying its description as an offence of very great heinousness, together with an absence of any facts mitigating the objective seriousness of the offending (as distinct from subjective circumstances mitigating the penalty to be imposed) such that the level of culpability is so extreme that it is properly one for which a life sentence is the only appropriate sentence (see R v Twala, NSWCCA, 4 November 1994, unreported). 30I am unable to identify any facts which operate to mitigate the objective seriousness of the offending for which this offender is solely responsible. Accepting a contract to kill, and then executing that agreement coldly and callously, cannot be described otherwise than offending of a very high order. Ms Davenport SC did not seek to persuade me to the contrary. She did not submit that the offender's psychiatric history has any causal connection with the commission of the offence such as might operate to mitigate in some way the seriousness of the offending or that his drug and alcohol history has any material bearing on the sentence to be imposed. 31So far as the operation of s 61 of the Crimes (Sentencing Procedure) Act is concerned, the question that remains is whether the offending is of such an extreme kind that a life sentence is the only appropriate sentence. Ms Davenport submitted that there is nothing in the offender's criminal record which illuminates his moral culpability for this offence and nothing other than this offence to suggest that he has any dangerous propensity. I accept that submission. The offender's record of prior offending as an adult is almost exclusively concerned with driving offences of one kind or another save for one offence in April 2008 where he was fined for possessing a prohibited weapon without a permit. 32In his report, Dr Furst also spoke of a risk the offender poses to himself and others which also requires monitoring without elaborating in any way upon the nature or extent of the risk to others. The Crown did not require him to attend for cross-examination. No submissions were directed to that aspect of his report. I do not consider it informs the question of future dangerousness for the purposes of the operation of s 61 of the Crimes (Sentencing Procedure) Act. In these circumstances, and despite his committed actions in agreeing to kill the deceased and fulfilling that agreement, I am unable to make a finding adverse to the offender on the question of future dangerousness. 33Ms Davenport also invited me to find that the offender is not entirely without rehabilitative prospects if his current psychiatric condition and other complicating personality problems are able to be addressed in the prison system. I am not able to form any view as to his prospects of rehabilitation in circumstances where he remains resistant to acknowledging his role in the offence, an involvement which, as I have noted, is amply demonstrated by the evidence led against him at his trial. 34The sentence to be imposed in this case must also take into account the fact that sentences have been imposed on three co-offenders, with Helen Ryan's criminality as the woman who contracted him to kill her husband being most closely allied to the criminality of this offender. Latham J was invited to impose a life sentence on Helen Ryan but refrained from doing so. Despite finding that her cold-blooded scheme to have her husband murdered reflected criminality of a very high order, replete as it was with callousness, determination and the most base self interest including financial gain, her Honour was not of the view that the offending was within the worst category. Even were she of that view her Honour was not persuaded beyond reasonable doubt that the imposition of a life sentence was required to meet the combined effect of retribution, punishment, community protection and deterrence. 35In all the circumstances, despite the findings I have made as to the high degree of criminality involved in the offence of murder for which the offender stands to be sentenced, I am not satisfied that the offending is within the worst case category (although it is very close to it), where the extent of planning appears minimal and where there is no suggestion of any sophistication or of any particular ingenuity of any kind in this offender carrying out the plan he made with Helen Ryan that the deceased would be killed by being shot. I am also of the considered view that the sentencing objectives of retribution, punishment, community protection and deterrence can be satisfied in this offender's case by the imposition of a very lengthy sentence. 36I am reinforced in the view after application of the principles of parity. Save for this offender being the shooter, Helen Ryan's criminality is not readily distinguishable from his. I am not, however, satisfied that parity dictates that he receive the same sentence as that imposed upon Helen Ryan. Some difference in treatment is justified due to this offender's role as the contracted killer. However, were I to impose a life sentence, which by definition carries no prospect of release, I am satisfied it would result in a sentence out of appropriate proportion to differentiate between them. I do not regard their subjective circumstances as materially different for sentencing purposes. 37It is not suggested that there is any basis for a finding of special circumstances in the sentence to be imposed on this offender and I find none. Sentence 38Kenneth Harold Brooks you are sentenced to imprisonment for 38 years comprised of a non-parole period of 28 years and 6 months to date from 10 February 2010 and expiring on 9 August 2038, with a balance of term of 9 years and 6 months expiring on 9 February 2048. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2012