Supreme Court New South Wales Medium Neutral Citation: R v Brooks (No.5) [2017] NSWSC 824 Hearing dates: 26 May 2017 Date of orders: 23 June 2017 Decision date: 23 June 2017 Jurisdiction: Common Law Before: Hamill J Decision: (1) Count 2 (wounding with intent to cause grievous bodily harm), sentenced to a non-parole period of 5 years commencing on 6 April 2015 and expiring on 5 April 2020 with a balance of term of 2½ years commencing on 6 April 2020 and expiring on 5 October 2022. (2) Count 1 (murder), sentenced to a non-parole period of 12½ years to commence on 6 April 2017 and to expire on 5 October 2029 with a balance of term of 7½ years commencing 6 October 2029 and expiring on 5 April 2037. (3) The offender is eligible for release to parole at the conclusion of the non-parole period. Catchwords: CRIMINAL LAW – sentence – murder – single stab wound – wounding with intent – second victim stabbed in course of same incident – where jury rejected self-defence – whether offender intended to kill – devastating impact on victim's family – criminal law a blunt tool – sentence and remarks incapable of providing comfort to victims – young offender with no criminal history – no planning or premeditation – no intent to kill – good prospects of rehabilitation – competing purposes of punishment – deterrence important when offender carrying a knife – vindication of dignity of separate victims requiring some accumulation – where conduct of trial facilitates course of justice – consideration of sentences in other cases – need for consistency – need for individual justice – "if justice is not individual, it is nothing" Legislation Cited: Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Beldon v R [2012] NSWCCA 194 Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 KT v The Queen [2008] NSWCCA 51; (2008) 182 A Crim R 571 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 MB v R [2013] NSWCCA 254 Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v AJC [2010] NSWCCA 168; (2010) 207 A Crim R 307 R v Anthony Jones [2012] NSWSC 1433 R v Boshevski [2011] VSC 303 R v Carr [2009] NSWSC 995 R v Dang [1999] NSWCCA 42 R v Do (No. 4) [2015] NSWSC 512 R v Douglas Edwin Barlow [2013] NSWSC 217 R v Halloun [2014] NSWSC 1705 R v Hearne [2001] NSWCCA 37 (2001) 124 A Crim R 451 R v Heffernan [2005] NSWSC 739 R v Hines (No 3) [2014] NSWSC 1273 R v James [2013] NSWSC 1560 R v Lattouf (CCA (NSW), 12 December 1996, unrep) R v Lee [2010] NSWSC 632 R v Morris [2017] NSWSC 637 R v Perkins [2016] NSWSC 1080 R v PO [2017] NSWSC 757 R v Previtera (1997) 94 A Crim R 76 R v Quinn (No 3) [2016] NSWSC 1699 R v Saleib [2005] NSWCCA 85 R v Scott (No 6) [2015] NSWSC 678 R v Sumpton (No. 4) [2015] NSWSC 684 R v TNV [2014] NSWSC 1510 R v Wilson [2005] NSWCCA 112 R v Wong [2010] NSWSC 171 Simic v R (1980) 144 CLR 319; [1980] HCA 25 Sumpton v R [2016] NSWCCA 162 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Versluys v R [2014] NSWCCA 98 Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31 Category: Sentence Parties: Regina Bradley Brooks Representation: Counsel: Huw Baker (Crown) Andrew Boe (B Brooks) Solicitors: Director of Public Prosecutions Younes + Espiner Lawyers (B Brooks) File Number(s): 2015/00101058 Judgment 1. This is my judgment in sentencing Bradley James Brooks for one count of murder and one count of wounding with intent to inflict grievous bodily harm. The two offences occurred within minutes of each other on 6 April 2015. A jury found Mr Brooks guilty on 29 March 2017. I want to start by acknowledging, and speaking to, the victims. The victims, their families and the harm done to the community 1. Gregory Edward James Gibbins was born on 4 January 1987, the child of Barry and Debbie Gibbins. Twenty eight years and three months later, on 6 April 2015, his precious life was taken away through the violent act of the offender Bradley James Brooks who stabbed him in the chest outside of a pizza shop in Toukley. Gregory staggered away, collapsed and died as a result of the stab wound. His mother and father, his big sister Rhianna, his twin sister Jenna, and many other friends, relatives and loved ones are left to pick up the pieces and cope with their grief. 2. On 26 May 2017, as the slow process of the criminal justice system approached its conclusion, Barry, Debbie, Rhianna, Jenna and a close friend, Adam Swindell, described the devastation that Gregory's death has caused to them. They did this courageously and with dignity before a court room which was full to the point of standing room. As I perceived it, most of the people were there to support them and to remember Gregory Gibbins. The very large number of people who attended the trial and sentencing hearing to support his grieving family is a testament to Gregory Gibbins' popularity in the community. As I said to Gregory's family at the time, I do not have words that can help them deal with the grief. 3. It is now my duty to impose sentence on the young offender who caused and is responsible for this catastrophic outcome. As I said to the family and to those in the public gallery on 26 May, no sentence that I can impose is capable of recognising the damage that has been caused to them, and no sentence that I can impose could possibly appear to constitute "justice" in circumstances where they have to live with their grief, and their loss, for the rest of their lives. 4. I could not do justice to the moving statements that the family made to the Court by attempting to summarise what was said. Those statements now form part of the historical record and, in that small and perhaps to them somewhat meaningless way, they keep alive the memory of a young man who by all accounts was a loving son and brother, a loyal friend, a talented and promising rugby league player, and a person who would take the time to help others, even to the point of saving the lives of people in despair. 5. His father planned to pass on the family business to his son. He misses their daily chats. His description of the moments when he found out about Gregory's killing was distressing to listen to for any parent, indeed to any caring member of our community. 6. His mother was correct when she told me that Gregory's life mattered and that he was more than a file number. She was lucky that the last words he heard her say to him was "I love you". But that is the only sense in which she was lucky. Her life has been devastated and she has not stopped crying and grieving since that fateful Easter of 2015. In fact, a theme running through the statements of Gregory's grieving family and friends was the fact that Easter will forever be destroyed for them as it is an annual and constant reminder of their tragic loss. 7. Gregory's older sister Rhianna is haunted by the image of her brother dying in a gutter whenever she drives through the town of Toukley and passes the location of this senseless criminal attack. Sometimes she has trouble getting out of bed and, like everybody involved, she has difficulty moving forward. It is hard to cope with other people's reactions when they do not know what to say or what to do. Rhianna is devastated by the fact that her children will never experience Gregory's qualities which would have made him the best uncle. 8. His twin sister, Jenna, whose statement was read by her partner Daniel, described the rollercoaster of emotions since Gregory was murdered. There have been joyous times for her – her marriage, the birth of her son – but all of those joyous occasions have been tinged with grief and sadness through the absence of her soul mate and twin. As she said: "No sentence will ever do enough justice to Greg." 1. The criminal law is a blunt tool when it comes to providing justice to families, such as the Gibbins family, whose lives are devastated, almost destroyed, by the consequences of actions like those perpetrated by Bradley Brooks. 2. Adam Swindell told me that he continues to feel guilty about what happened. He was present when Gregory was stabbed to death and he himself was the victim of a second serious criminal offence committed at almost the same time. Mr Swindell was also stabbed in the chest by Bradley Brooks. He suffered really serious injuries but, fortunately, has recovered well. He continues to have scarring from the incident. But the physical scarring is nothing by comparison to the emotional scarring of having watched his dear friend die in front of him. I hope that Adam Swindell realises that he is not to blame; that he and Mr Gibbins had done no more than be in the wrong place at the wrong time and in fact attempted to assist a young woman who appeared to be in distress and in need of some support. 3. The pain and suffering of these people is an aspect of the harm done to the community by this serious crime. The sheer numbers of people who attended the trial and the sentencing hearing proves that. On the application of the Prosecutor, the law allows me to take that into account in assessing the proper sentence to be imposed. I am of the view that it is appropriate to do so and counsel for Mr Brooks did not contend otherwise. The manner in which I do so has been described in a number of cases and I adopt the approach that has been taken in those earlier cases. [1] The charges, penalties and purposes of punishment 1. As a result of the death of Mr Gibbins, and the wounding of Mr Swindell, Bradley Brooks was charged with murder and wounding with intent to cause grievous bodily harm. After a trial that proceeded from 8 to 29 March 2017, a jury found Mr Brooks guilty of both charges. He was then formally convicted of those offences. 2. The law provides a maximum penalty of life imprisonment for the murder of Mr Gibbins and a maximum penalty of 25 years imprisonment for the wounding of Adam Swindell. The Crown Prosecutor does not suggest that this is an appropriate case in which to impose a life sentence or the maximum penalty. However, throughout the sentencing process, it is critical to keep in mind the maximum penalties. These reflect the seriousness with which the legislature and the community treat these offences. The maximum penalty of life imprisonment is a statutory recognition of the sanctity of human life and the fact that murder is the most serious offence recognised by the law. 3. In addition to the maximum penalties, there is a standard non-parole period of 20 years for murder and 7 years for the wounding with intent to inflict grievous bodily harm. The standard non-parole period applies to an offence falling in the middle range of objective seriousness. The correct approach to the standard non-parole period has been explained in a number of cases, most authoritatively by the High Court in Muldrock v The Queen. [2] While it is an important legislative yardstick to the appropriate sentence, the standard non-parole period does not replace the judicial task of synthesising all of the many factors that are relevant to sentencing and instinctively determining the weight that should be given to those factors in deciding on a proper and appropriate sentence. [3] Whether an offence falls within the middle range of objective seriousness is to be assessed "without reference to matters personal to the particular offender or class of offenders". [4] 4. I must always keep in mind the purposes of sentencing and punishment. Those purposes are established by the common law and are reflected in s 3A Crimes (Sentencing Procedure) Act 1999 (NSW). They are: 1. To ensure that the offender is adequately punished for the offence; 2. To prevent crime by deterring the offender and other persons from committing similar offences; 3. To protect the community from the offender; 4. To promote the rehabilitation of the offender; 5. To make the offender accountable for his actions; 6. To denounce the conduct of the offender; and 7. To recognise the harm done to the victim of the crime and to the community. 1. It is necessary to consider the many and varied matters that inform the proper exercise of the sentencing discretion and to determine a fair, just and appropriate penalty, taking into account all of those circumstances. These matters pull in opposite directions. Not only has Mr Brooks taken away the precious life of Gregory Gibbins, and destroyed the life of a number of other people, he has also destroyed his own life. At the time of these violent and senseless crimes, Mr Brooks was a 19 year old man who had never been in trouble with the police before. He appeared to have a promising career as a chef ahead of him. When the victims were reading their statements to the Court he looked like a broken man. In those moments, I realised that the case represents a tragedy from every possible perspective. The facts of the offences 1. On 8 March 2017, Mr Brooks was arraigned and pleaded not guilty to both charges. A jury found him guilty. It is necessary to set out the factual circumstances that led to these verdicts and to make findings as to the controversial facts. Most of the facts were not in dispute. Any finding I make must be consistent with the jury's verdicts. Where a matter is an aggravating feature, it must be established beyond a reasonable doubt. Where it is a mitigating feature, it must be established on the balance of probabilities. It is not always possible for a sentencing Judge to make factual findings on every issue that arises. [5] 2. The offences occurred early in the morning of 6 April 2015 at Toukley. 3. On Sunday, 5 April 2015 Bradley Brooks, Gregory Gibbins and Adam Swindell all attended the Sunbay music festival at the Beachcomber Hotel on Main Road, Toukley. Mr Brooks was with a group of friends and relatives and Mr Gibbins and Mr Swindell were in a separate group. There was no evidence that Mr Brooks knew the men who were to become his victims before that day and no evidence that they had any contact earlier in the night or before the fateful events that occurred just after midnight. 4. Mr Gibbins and Mr Swindell arrived at the hotel at about 4:45pm. The offender arrived at around 7:30pm with members of his family including his adopted brother (Joel Brooks), his father (Corry Brooks) and his uncle (Billy Weldon). The music festival ended at midnight and all relevant parties left the hotel at around that time. Closed circuit television (CCTV) footage established that Mr Gibbins and Mr Swindell left at 11:50pm while the offender's group left at 11:57pm. 5. After patrons were ushered out of the hotel by the security guards, a fairly large crowd gathered outside a nearby pizza shop also on Main Road. The pizza shop is on the opposite side of the road to the hotel and a short distance down the road. 6. After leaving the hotel the offender and family went to the pizza shop. There was some interaction between a member of the offender's group and a young woman called Amber Pellizzon. It seems to be agreed that it was Billy Weldon who got into some kind of verbal altercation with Ms Pellizzon. While Mr Weldon is the offender's uncle, he is also a young man. Ms Pellizzon walked to a grassed area nearby which was used as a car park. She approached the group consisting of Gregory Gibbins, Adam Swindell and Shaun Morabito. They had left the hotel and were on their way to Mr Morabito's home. Ms Pellizzon asked the three men to accompany her, and to provide her with some physical back up, because she wanted to return to the hotel which meant going past the pizza shop and therefore the group with whom she had just had the verbal exchange. 7. Amber Pellizzon, now accompanied by the three men, walked back towards the hotel and past the pizza shop. They came into the physical vicinity of the offender and his group. An altercation occurred. The evidence of the eye-witnesses is so inconsistent and haphazard that I am unable to determine precisely how this altercation started and who the aggressors were. It seems that Amber Pellizzon, Billy Weldon and Joel Brooks were involved and some of the witnesses described shouting and pushing. Neither the offender nor Mr Gibbins were involved but things developed very quickly. 8. I accept that in the course of this confrontation Adam Swindell pushed Joel Brooks to the ground. The offender then pulled a knife from his pants and stabbed both Mr Swindell and Mr Gibbins in the chest. While the evidence does not allow a finding as to the precise timing of events, I accept that the stabbings of both victims occurred within a matter of minutes – probably less than one minute – of Joel Brooks being pushed to the ground. 9. Mr Gibbins received a single stab wound to the chest. Mr Swindell sustained two stab wounds, one to his left chest and one to his right bicep. The prosecution case is that the wounds to his bicep occurred a short time later when he was chased around the corner and stabbed by Joel Brooks, who got up quickly and also produced a knife. 10. Mr Gibbins staggered away and collapsed in the gutter nearby. Hotel staff called 000 at 12:05am. An ambulance arrived at 12:07am and Mr Gibbins was taken to Gosford Hospital where he was pronounced dead at 1:05am on 6 April 2015. 11. Very little of what I have described was in dispute at the trial. The offender argued that he acted in self-defence (and defence of another) and relied on the pushing of Joel Brooks and the fact that the evidence demonstrated that there was nothing in his (the offender's) earlier conduct to suggest that he was aggressive or angry or motivated to do harm to anybody. He also relied on his previous good character. The jury rejected the suggestion that the offender believed it was necessary to conduct himself as he did. Inherent in the jury's verdicts was a finding that the accused intended to kill or to inflict grievous bodily harm when he stabbed Mr Gibbins. 12. The critical factual dispute on sentence was whether the offender should be sentenced on the basis of an intention to kill or on the basis that he intended to inflict grievous bodily harm. The jury's verdict does not resolve that question. 13. After the stabbing, the offender fled the scene. He took steps to cover up his involvement in the crime. He disposed of the knives that both he and his brother were carrying and, on the prosecution case, used that night. He washed his clothes and shoes to hide the blood and get rid of evidence that may have connected him to the crime. The offender quickly came under suspicion and was arrested by police on 6 April 2015. When he was interviewed, he provided a recorded interview that was littered with lies. For example, he lied about when he left the hotel, about the clothes he was wearing, about carrying a knife and about being involved in the incident. The offender's post-offence conduct was admitted, over objection, as evidence demonstrating a consciousness of guilt. Did Mr Brooks intend to kill Mr Gibbins? 1. The Crown Prosecutor submitted that I would be satisfied beyond reasonable doubt that the offender intended to kill Mr Gibbins. Amongst other things, he relied on the fact that the offender was carrying the knife, the location of the wound, the descriptions of the witnesses as to how the wound was inflicted and the degree of force required to cause the injury. 2. Mr Boe, who appeared for the offender at trial and on sentence, submitted that I would sentence Mr Brooks on the basis of an intention to cause grievous bodily harm. 3. Mr Boe placed some reliance on the fact that the Crown did not charge Mr Brooks with the attempted murder of Mr Swindell, but only with wounding with intent to cause grievous bodily harm. Given the temporal proximity and similar locations of the stab wounds, he argued that this was a matter that militated against finding an intention to kill. I am unable to accept this submission. The reasons that the Director of Public Prosecutions elects to prefer a particular charge, and not a more serious charge, are necessarily unknown to the Court. The decision is one within the peculiar domain of the Director. There can be no effective "issue estoppel" arising from the election to charge Mr Brooks with a less serious offence. More importantly, however, it does not follow that Mr Brooks had the same intention in respect of both victims and the evidence of the degree of force used was different in each case. 4. However, the remaining submissions made by Mr Boe were very persuasive. 5. Having considered all of the evidence, I am not satisfied that the offender intended to kill Mr Gibbins or anyone else. In summary, the reasons for this finding are as follows: 1. There is no evidence of any pre-existing animosity between the offender and Mr Gibbins. 2. While the offender was carrying a knife, there is no evidence that he had produced it, or threatened to use it, at any stage during the evening. 3. The event unfolded extremely quickly and the offender responded suddenly to events of which he was neither the author nor the instigator. It was Billy Weldon and Amber Pellizzon who initially started the verbal altercation. It was Joel Brooks and Adam Swindell who first became physical with one another. It was only after Joel Brooks was pushed to the ground that the offender became involved. 4. The injury was a single stab wound and there was no evidence that the accused said anything to suggest an intention to kill or that he visited any further violence on Mr Gibbins after the initial blow with the knife. He did not follow him as he staggered away. 5. While the medical opinion was that a moderate to high degree of force was required to cause this injury, the force was dynamic and may have involved movement in both directions. The eye-witness testimony suggested that there was movement both ways and some of the evidence suggested a surge in one direction or the other. While a lot of the eye-witnesses were affected by alcohol or other drugs, the possibility that Mr Gibbins moved towards the knife cannot be ruled out. 6. The offender was a person of prior good character and was described as passive, shy and gentle. Such a person is less likely to form an intention to kill a fellow human being. [6] This is so even in circumstances where his admitted conduct in using the knife and being involved in a violent incident was out of character. This is entitled to some weight in an assessment of whether he formed an intention to kill. Aggravating and mitigating factors and an assessment of the objective seriousness of the offences 1. Both murder and wounding with intent to cause grievous bodily harm are extremely serious offences. This is reflected in the maximum penalties and standard non-parole periods. Murder is, as I have said, the most serious offence known to the law and the law cherishes, and aims to protect, the sanctity of human life. [7] 2. The most significant aggravating feature in the present case is that the offender used a weapon, namely a knife. [8] Of course, this must be considered in the context where most offences of "wounding" involve use of a weapon and many offences of murder also involve the use of a weapon. However, a critical feature here is that the offender was carrying a knife in a public place. That is the reason that the situation escalated from a verbal altercation with some pushing and shoving into a situation where one man is dead and another was treated in hospital for serious injuries. One of the purposes of this sentencing exercise must be to send a clear message that the Courts will not tolerate carrying of weapons and that those who do so, especially when they use them to fatal effect, will be met with severe punishment. 3. It might also be said that the offences "involved multiple victims or a series of criminal acts". [9] However, the offender is to be sentenced for two offences so this is not a matter that should be used to aggravate the sentence imposed on either of the individual offences. 4. It is also the case that the offences were committed in a public place when there were many members of the public present. While it is not a case where the aggravating feature in s 21A(2)(i) is engaged, [10] the fact is that some of the witnesses were clearly traumatised by the experience. [11] 5. A mitigating feature upon which the parties agree is that the offences were not part of a planned or organised criminal activity. [12] On the contrary, the offender responded quickly to a sudden situation created by others and which was largely beyond his control. Like, Mr Gibbins, he was in the wrong place at the wrong time. While the jury rejected self-defence, I accept that the offender responded to the situation as it developed quickly before him. I accept that he was protective of his brother and that this caused him to act. But he did not act in self-defence and did not believe it was necessary to do what he did. The offence was completely unplanned and there was little time for premeditation. 6. Other mitigating features referred to in s 21A are of a personal nature and I will refer to these when I deal with the offender's subjective case. 7. It is accepted that, generally, murder involving an intention to kill is more serious than one involving an intention to inflict grievous bodily harm. For example, in Versluys v R it was said: [13] "While every case will turn on its own facts, and while no categorical proposition can be discerned from past murder cases, it is generally the case that murders involving a lack of intention to kill and a lack of premeditation are likely to be less serious than those in which there is established premeditation and an intention to kill." 1. For the purpose of consideration and application of the standard non-parole period, it is necessary that I record my assessment of whether the offence objectively falls within "the middle of the range of seriousness". Because of the suddenness of the circumstances, the lack of planning and premeditation and the lack of an intention to kill, I find that the murder offence falls below the middle range of objective seriousness. For similar reasons (while obviously excluding the reference to the intention to kill), I find that the wounding of Mr Swindell falls below that putative middle of the range of objective seriousness. In making that assessment, I have taken into account the use of the knife and the fact that the offender was carrying it in a public place. As I have said, that is a matter that increases the weight to be given to general deterrence. 2. In coming to those conclusions, I should not be understood to be understating in any way the seriousness of the offences. The comparison involves a consideration of all murder cases and all cases prosecuted under s 33 Crimes Act 1900 (NSW). That involves a vast spectrum of offences from cases involving contract killing, gratuitous cruelty and torture to those where an intention to inflict really serious injury arose spontaneously and under a degree of provocation. I hasten to add that there was no provocation in the present case. It is in the context of that broad spectrum that I have come to the conclusion as to where this particular offence falls in the range of seriousness contemplated for the two offences for which the offender is to be sentenced. I have not lost sight of the devastating consequences of the offender's actions on the two victims and their loved ones. the offender's personal case and other mitigating features Youth 1. The offender was 19 years of age at the time of the offences. His youth is a matter of some significance in an assessment of the appropriate penalty. In sentencing young offenders, the Court is entitled to give greater weight to rehabilitation, one of the purposes of punishment referred to in s 3A. 2. The relevance of youth to the sentencing exercise is well established. In some cases, the youth of an offender bears upon the objective criminality because the criminal act is impulsive and may have resulted from a lack of self-control or self-regulation resulting from immaturity. In this regard, the law recognises scientific research as to the development of the brain in adolescents and young adults. In KT v The Queen [14] McClellan CJ at CL said: "22. The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511 at [30]). 23. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. ... " 1. These comments were cited with approval in R v AJC [15] at [92]-[93] by Kirby J (with whom Hodgson JA and Whealy J agreed). His Honour went on at [94] to observe "[t]hat is not to say that general deterrence or retribution may be completely ignored, especially where the young person has conducted him or herself as an adult might". Kirby J then referred back to the decision of McLennan CJ at CL in KT at [25]: "In determining whether a young offender has engaged in 'adult, the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society." 1. While the offence committed by Mr Brooks involved the use of a weapon, there was no planning or pre-meditation and the offender has no criminal history. As to the use of the knife, I have come to the same conclusion as Fullerton J who sentenced an offender aged 16 years and 8 months for a similar offence two weeks ago. [16] Her Honour said: "In assessing the objective seriousness of the offence for sentencing purposes, and the offender's moral culpability for that offence, I consider his use of the knife as both impulsive and irrational, the antithesis of the mature decision making ordinarily attributed to an adult offender (see the observations of Hodgson JA in BP v R [2010] NSWCCA 159; 201 A Crim R 379 at [6], with whom Rothman J agreed)." 1. While the principles to which I have referred are more significant when the offender is (in law) a child, there is no bright line crossed when an offender turns 18 years of age. "[A]llowance will be made for an offender's youth and not just their biological age." [17] The evidence in the present case includes the following observation by Dr Nielssen: "A final factor contributing to [the offender's] behaviour was his stage of neurological development, as the adolescent brain has yet to develop the executive controls and consequential thinking of older adults." 1. Because of the seriousness of the offences, and because the offender was carrying a knife which was used with fatal consequences, the sentence must still contain a strong component of general deterrence. However, the weight to be given to rehabilitation is greater and there should be some moderation of the extent to which the offender's sentence is calculated to send a message to others. Lack of criminal history 1. Mr Brooks has no previous criminal history. This is a mitigating feature. [18] Good character 1. The offender was working as a chef's apprentice and Mrs Baird his supervisor, spoke highly of his work ethic and commitment to his career as a chef. He was described as a quiet, gentle and shy person with a strong bond with his family. His grandmother said he was "well mannered, polite and good natured". Based on the lack of criminal history, the testimonials of Andrew Harland and Debra Brooks tendered on sentence and the evidence of Sarah Baird given in the trial, I am satisfied that Mr Brooks was a person of good character. Remorse and prospects of rehabilitation 1. In the testimonials tendered on his behalf, it is asserted that the offender has expressed remorse for his involvement in the offences. He is said to be regretful and "devastated about the incident". Mr Harland said that the offender told him: "It's not just my family, my mum and dad will be fine I am still alive, someone else's son is dead." 1. This history fits with my observation of Mr Brooks throughout the trial and especially during the proceedings on sentence. Observing the young offender as the victim impact statements were read to the Court, I am inclined to accept that he is genuinely sorry for what he did. However, in view of the restrictive terms of s 21A(3)(i), I am unable under the law to find that "remorse" is a mitigating feature. [19] 2. However, his attitude to the offences and empathy with the victims is an important matter in assessing his prospects of rehabilitation. I have also taken into account the opinion of Dr Nielssen ("good prospects for longer term rehabilitation") and the psychiatrist's reference to the low recidivism rates in homicide cases. Taking into account his age, prior good character, family support, his attitude to the offence and to his victims, his employment record and his youth, I am satisfied that Mr Brooks has good prospects of rehabilitation and is unlikely to reoffend. [20] 3. In coming to these findings, I have taken into account the various infractions referred to in his custodial history. Those matters do not change my opinion as to the offender's prospects of rehabilitation. The events of 27 February 2015 1. On or about 27 February 2015 at the Beachcomber Hotel the offender was assaulted and suffered reasonably serious head injuries. That was just a few weeks before the events giving rise to the murder of Mr Gibbins and at the same venue. There was no dispute that this assault occurred and I accept that it happened, and that it had a significant impact on the offender. I accept that it may have been the result of this earlier incident that the offender decided to carry a knife. While I accept those matters, I am unable to conclude that it provides very much, if anything, by way of mitigation. It may explain his carrying of the knife (although there is no evidence of that fact) and his sudden and violent response to the situation as it developed, but it neither justifies his actions nor provides any real mitigation for his crimes. Facilitation of the course of justice 1. The trial was conducted efficiently on behalf of the offender. He made a large number of formal admissions at the beginning of the trial and there was an agreed statement of facts in relation to the medical evidence. The trial was fought on clearly defined issues. 2. The formal admissions were extensive. [21] They encompassed: 1. The offender's involvement in the physical confrontation with the victims. 2. Possession and use of a foldable knife on the night of the offences. 3. The injuries suffered by both victims. 4. The fact that the accused "used" the knife in the course of the physical altercation. 5. The "reasonable possibility" that his use of the knife caused the relevant injuries. 6. The entirety of the post offence conduct relied on by the Crown as consciousness of guilt, including the disposal of the weapons, the washing of clothes and shoes and the lies told to police. 1. As a result, a very large number of witnesses did not need to be called at the trial. Those witnesses who were called were cross-examined quickly and on a limited number of issues. The co-operation between the parties reduced the length of the trial by at least a week or two. 2. The Crown concedes that the offender's conduct of the trial facilitated the administration of justice and that this entitles him to some reduction in the sentence that would otherwise have been imposed. [22] I accept that concession and will reduce the sentence in recognition of the way in which the offender conducted the trial. COMMENCEMENT DATE, TOTALITY, ACCUMULATION 1. The offender went into custody on 6 April 2015 and the parties agree that his sentence should commence on that date. 2. The offences were part of a single episode of violence and occurred within a very short period of time of one another. Accordingly, there will be a large degree of concurrency between the sentences. 3. However, the sentence must recognise that there were two separate victims of the offender's violent conduct - Mr Gibbins, who lost his life, and Mr Swindell, who received serious and potentially life threatening injuries. The structure of the sentence must "vindicate the dignity of each victim of violence". [23] For this reason, it is important to indicate appropriate sentences for each offence and to accumulate those sentences to some degree so that the harm done to each victim receives recognition. 4. While it is open to impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act, where there are only two offences I feel it is more appropriate to impose individual sentences for the sake of transparency and also to ensure that the damage done to each victim is recognised. I do not suggest that is always appropriate where there are only two offences, but it is the approach I will adopt in this case. SENTENCING outcomes in other CASES 1. Both parties took me to a variety of cases, both at first instance and on appeal, where offenders were sentenced for murder arising from stabbings. A number of the cases involved a single stab wound where there was little or no premeditation and no intention to kill. I have considered those cases and also others to which the parties did not refer. 2. A review of a number of cases satisfies me that the sentence upon which I have settled falls within the wide discretionary range available in the exercise of the sentencing discretion. I will refer only to a few of those cases, and do so very briefly while noting some of the relevant differences. 1. R v Wilson [2005] NSWCCA 112. The offender stabbed a vulnerable victim (a taxi driver) to the chest after the driver asked him to pay the taxi fare. The offence was not planned or premeditated. The offender stole money from the deceased and left him by the side of the road in a concealed location. He set fire to the taxi. He made an exculpatory interview but later admitted his guilt. The offender received a 25% discount for his plea of guilty. He was 18 years old at the time of the offence. Simpson J (as her Honour was at that time) imposed a sentence of 12 years with a non-parole period of 8 years. On a Crown appeal a majority (Bryson JA and Studdert J) increased the sentence to 15 years with a non-parole period of 11 years. Adams J dissented and would not have interfered with the sentence imposed by Simpson J. The sentence imposed on appeal took into account the principle of double jeopardy. 2. R v Carr [2009] NSWSC 995 also involved a single stab wound. He pleaded guilty on the first day of the trial and received a 15% discount on his sentence. He was an 18 year old but had a criminal history and was on conditional liberty at the time of the offence. He was an Aboriginal offender with a history of social deprivation. McClellan CJ at CL imposed a sentence of 16 years with a non-parole period of 12 years. 3. R v Wong [2010] NSWSC 171, like the present case, involved both a murder and an offence under s 33. However, the facts of that case were substantially more serious. The motive for the crime was not clear but, for no apparent reason, the offender took offence at the victim looking at him at a fast food restaurant. Wong and a co-offender then followed the victim from the restaurant. Wong stabbed the deceased to the chest and the offenders then chased a second victim who was struck with a hammer. Wong had a criminal record described as "minor" but he had previously been placed on bonds and probation. The offences constituted a breach of conditional liberty. Buddin J was guarded in his assessment of his prospects of rehabilitation. Wong was sentenced to a total effective sentence of 21 years with a non-parole period of 15½ years, having received a discount of 20% for his plea of guilty. His co-offender, who received a discount of 12.5% for a late plea, was sentenced by Price J to 19 years 3 months with a non-parole period of 13 years 3 months. [24] 4. MB v R [2013] NSWCCA 254 involved the use of a broken bottle to stab the victim in the neck. This act was done after a group had been involved in a fight with the deceased in which the offender was the original aggressor. The offender was 16 years old at the time of the offence. The sentencing Judge (Howie J) considered the offence to be in the middle range of objective seriousness and imposed a sentence of 22 years with a non-parole period of 15 years 6 months. The original appeal against sentence was dismissed. Subsequent to the decision in Muldrock v The Queen, the case was reviewed, referred to the Court of Criminal Appeal and the appeal was allowed (Hoeben CJ at CL, Johnson and Bellew JJ). The offender was re-sentenced to 17½ years with a non-parole period of 12½ years. 5. R v Hines (No 3) [2014] NSWSC 1273 involved a single stab wound to the chest. The offender left a fight to obtain the knife and returned to use it. The victim also armed himself with a bar. The jury rejected self-defence and provocation. There was no intention to kill. There was a 5% reduction in the sentence due the facilitation of justice and efficient conduct of the trial. The offender was an Aboriginal offender with a personal history of deprivation. I sentenced him to a total sentence of 24 years with a non-parole period of 16 years and 6 months. Mr Hines had a criminal history and, notably, a previous offence of murder involving a single stab wound. 6. R v Scott (No 6) [2015] NSWSC 678 involved a single stab wound to the chest. There was a plea of not guilty and the offender argued that he acted in self-defence. Wilson J was not satisfied that the offender acted with an intention to kill. Her Honour imposed a sentence of 24 years with a non-parole period of 18 years. The offender was a 41-year-old man with a lengthy criminal history including a number of offences of violence including the use of a knife. He had been sentenced to gaol on many previous occasions. 7. R v Morris [2017] NSWSC 637 involved a single blow by a hammer to the throat of the victim. There was an argument between the men (who were neighbours) over an earlier drug transaction. There was no intention to kill, the offence was not planned and the offender had a mental illness that contributed to the commission of the offence. He was convicted after trial and Fagan J imposed a non-parole period of 12 years with a balance of term of 5 years. 8. R v PO [2017] NSWSC 757 involved two stab wounds to the chest and abdomen. The offender was involved in a fight involving four men. He was carrying a knife that a friend had stolen earlier in the day. There was no planning or premeditation – the use of the knife was "impulsive and irrational". The sentencing Judge (Fullerton J) found an intention to inflict grievous bodily harm. The offender was aged 16 years 8 months and had what the prosecution described as a "concerning" criminal history. This included a previous offence of carrying a knife. The offender's subjective case was a sad and compelling one. Fullerton J sentenced him to a non-parole period of 9 years with a balance of term of 6 years. 1. I have also considered a number of other cases referred to, and summarised by, the parties. These case included R v Heffernan [2005] NSWSC 739, R v Jones [2012] NSWSC 1433, Beldon v R [2012] NSWCCA 194, R v James [2013] NSWSC 1560, R v Barlow [2013] NSWSC 217, R v TNV [2014] NSWSC 1510, R v Boshevski [2011] VSC 303, R v Quinn (No 3) [2016] NSWSC 1699 and R v Perkins [2016] NSWSC 1080. 2. The differences in the sentencing outcomes in this selection of previous cases reflect the differences in the circumstances of those cases and the breadth of the sentencing discretion. There is no single correct sentence. One need only to compare the disparate sentences imposed by Wilson J in R v Scott and Fullerton J in R v PO, and to consider the careful reasons provided by their Honours in each case, to realise that consistency in punishment cannot take precedence over individualised judgment. 3. It is important to the administration of justice that there be reasonable consistency in the approach taken by different sentencing Judges. [25] However, neither the sentencing outcomes in previous cases nor the helpful statistics maintained by the NSW Judicial Commission can replace the judicial task of determining the appropriate sentence by considering all relevant factors even where, as here, those factors pull in opposite directions. This process has been described as an "instinctive synthesis". The approach to such material was considered by the High Court in Hili v The Queen; Jones v The Queen. [26] It was held at [54]: "In Director of Public Prosecutions (Cth) v De La Rosa, [27] Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'." 1. Further, every sentencing case is different and none of the cases to which I have referred has the same features, objective and subjective, as the present case. Justice in sentencing requires that the individual facts and circumstances of each case be considered. The sentencing judge must make decisions as to the weight to be given to the competing purposes of punishment in the peculiar circumstances of each case. As Mahoney JA said in R v Lattouf, "a sentencing process must be capable of distinguishing between cases" and "if justice is not individual, it is nothing". [28] SPECIAL CIRCUMSTANCES 1. Generally, by operation of s 44 of the Crimes (Sentencing Procedure) Act the non-parole period – that is, the minimum period that the offender will remain in custody – will be at least 75% of the total sentence. However, where there are special circumstances, a sentencing Judge may adjust that proportion. In doing so, the Court should be careful not to "double count" factors that have informed the length of the total sentence. Further, the adjusted non-parole period must not fall below a period that is proportionate to the criminality involved in the offences. 2. However, the same factors may have relevance to an assessment of both the total sentence and the non-parole period, but factors such as fostering the rehabilitation of the offender may have a greater role to play in the setting of the non-parole period, while the purposes such as denunciation, punishment and deterrence may have more weight in determining the total sentence. 3. The High Court discussed these matters, in the context of a different sentencing regime, in Bugmy v The Queen. [29] The majority (Dawson, Toohey and Gaudron JJ) said at 536: "The task his Honour assumed was to determine an appropriate minimum term in all the circumstances. The practical effect of fixing a minimum term is that thereafter the Parole Board may, but of course need not, grant the prisoner parole: Corrections Act, s.74(1). That is not to say that the minimum term should be seen as the shortest time required for a paroling authority to form a proper view of the prisoner's prospects of rehabilitation. That approach was rejected in Power v. The Queen [1974] HCA 26; (1974) 131 CLR 623. Referring to Power, this Court said in Deakin v. The Queen [1984] HCA 31; (1984) 58 ALJR 367, at p 367; [1984] HCA 31; 54 ALR 765, at p 766: 'The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.' The views expressed in Power have been affirmed on other occasions in this Court: see for instance Lowe v. The Queen [1984] HCA 46; (1984) 154 CLR 606, at p 615; The Queen v. Paivinen [1985] HCA 39; (1985) 158 CLR 489, at p 495; The Queen v. Watt [1988] HCA 58; (1988) 165 CLR 474, at p 481; Hunter v. The Queen (1988) 62 ALJR 424; Griffiths v. The Queen [1989] HCA 39; (1989) 167 CLR 372, at p 396." 1. There are obvious differences between s 44 of the Crimes (Sentencing Procedure) Act and the legislation considered in Bugmy v The Queen. For one thing, Bugmy concerned legislation where a life sentence for murder was mandatory. Further, and significantly, the legislation did not provide any prima facie statutory ratio as between the head sentence and the non-parole period or any requirement for the offender to establish "special circumstances". Even so, the approach of the majority in Bugmy v The Queen has resonance in the circumstances of the present case. 2. My intention is to set a lengthy total sentence and to give particular weight to matters such as denunciation, deterrence and retribution. Those factors, as well as recognising the harm done to the victims, are also relevant to an assessment of the non-parole period but the purpose of punishment in s 3A(d) – the promotion of the rehabilitation of Mr Brooks – will be given more weight in determining the non-parole period. Whether he is released to parole at the conclusion of that non-parole period will depend on the findings of the Serious Offenders Review Council (or similar body then administrating sentencing and making decisions as to the release of offenders at the conclusion of non-parole periods set by sentencing courts). 3. I find that there are special circumstances in the accumulation of the two sentences, in the fact that the offender is a young man with good prospects of rehabilitation who has never been in custody before. The special circumstances include the incentive to rehabilitate that an adjustment of the non-parole period will provide, and in the desirability that Mr Brooks has a lengthy period on parole to assist him to re-integrate into the community after what is, and must be, a lengthy gaol sentence. In setting the non-parole period I keep in mind the statutory guideposts. I have not allowed the powerful subjective circumstance that I am sentencing a young offender with no prior convictions to distract me from the grave criminality involved in the offences. Sentence 1. Before proceeding formally to sentence, I indicate my intentions and the general effect of the sentences I will impose. Pursuant to s 22A, I have reduced the individual sentences, and the total cumulative sentence, by about 5% to recognise that the efficient conduct of the proceedings facilitated the course of justice. 2. The total sentence (that is, non-parole period plus balance of term) for the murder of Mr Gibbins will be 20 years. The total sentence for the wounding with intent of Mr Swindell will be 7½ years. 3. Because the two offences occurred within such a short period of time and were part of the same incident, there will be a large degree of concurrency between the two sentences. However, because there were two separate victims, there will be an accumulation of 2 years. This will be achieved by commencing the sentence for murder two years after the sentence imposed for the wounding with intent. This will result in a total effective sentence of 22 years. 4. Giving effect to my finding of special circumstances, and after the partial accumulation of the sentences, the total effective non-parole period will be 14½ years. As I have stressed, whether the offender is released at expiration of this non-parole period will turn on the decision of the Serious Offenders Review Council or a similar authority. That decision will no doubt depend on the offender's conduct while in custody, his prospects of rehabilitation, whether it is considered safe to release him into the community and other considerations provided for under the relevant statutes and delegated legislation. 5. Bradley James Brooks: 1. In respect of count 2, the wounding of Adam Swindell with intent to cause grievous bodily harm, you are sentenced to a non-parole period of 5 years commencing on 6 April 2015 and expiring on 5 April 2020 with a balance of term of 2½ years commencing on 6 April 2020 and expiring on 5 October 2022. 2. In respect of count 1, being the murder of Gregory Gibbins, you are sentenced to a non-parole period of 12½ years to commence on 6 April 2017 and to expire on 5 October 2029 with a balance of term of 7½ years commencing 6 October 2029 and expiring on 5 April 2037. 3. You will become eligible for release to parole at the conclusion of the non-parole period for count 1. 4. I am required to advise you that the provisions of the Crimes (High Risk Offenders) Act 2006 applies to the offence of murder and that you may be subject to its provisions at the end of the sentence that I have imposed. ********** Endnotes 1. R v Hines (No 3) [2014] NSWSC 1273 (Hamill J) at [77]-[85]; R v Do (No. 4) [2015] NSWSC 512 (Davies J); R v Halloun [2014] NSWSC 1705 (McCallum J); R v Sumpton (No. 4) [2015] NSWSC 684 at [36] – [44]; Sumpton v R [2016] NSWCCA 162. See also the comments pre-dating the section made by Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 and Adams J in R v Dang [1999] NSWCCA 42. 2. (2011) 244 CLR 120; [2011] HCA 39. 3. Muldrock at [26] and see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. 4. Muldrock at [27]. 5. See generally, The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54, especially at [16]-[18]. 6. See, for example, Simic v R (1980) 144 CLR 319; [1980] HCA 25 at 333 and Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 in particular at [31]-[32] (McHugh J) , [57], [62] (Gummow J) 7. See, for example, Wilson v The Queen (1992) 174 CLR 313 at 341; [1992] HCA 31. 8. Section 21A(2)(c) Crimes (Sentencing Procedure) Act. 9. Section 21A(2)(m). 10. This sub-paragraph provides that it is an aggravating feature if "the offence was committed without regard for public safety". 11. Cf R v Saleib [2005] NSWCCA 85 at [55]-[57]. 12. Section 21A(3)(b). 13. [2014] NSWCCA 98 [21] (Hamill J, Simpson and Hidden JJ agreeing). 14. [2008] NSWCCA 51; (2008) 182 A Crim R 571. 15. [2010] NSWCCA 168; (2010) 207 A Crim R 307. 16. R v PO [2017] NSWSC 757 at [50]. 17. KT v R at 23 citing R v Hearne [2001] NSWCCA 37 (2001) 124 A Crim R 451 at [25] 18. Section 21A(3)(e) Crimes (Sentencing Procedure) Act. 19. The paragraph refers to "the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)." 20. Section 21A(3)(g) and (h). 21. See Ex 1. 22. Section 22A Crimes (Sentencing Procedure) Act. 23. Cf Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]. 24. R v Lee [2010] NSWSC 632. 25. See the comments of Fagan J in R v Morris at [64]. 26. (2010) 242 CLR 520; [2010] HCA 45. 27. [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [304]-[305]. 28. R v Lattouf (Court of Criminal Appeal (NSW), Mahoney ACJ, Sully J, Adams AJ, 12 December 1996, unrep). 29. (1990) 169 CLR 525; [1990] HCA 18 especially at 536 (Dawson,Toohey and Gaudron JJ). Amendments 19 June 2020 - Corrected [78] to read s 22A. 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: 19 June 2020