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R v Brazel

R v Brazel

Case [2005] VSCA 56 22 March 2005

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 99 of 2003

THE QUEEN
	v.
GREGORY JOHN BRAZEL

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JUDGES:	CALLAWAY and BATT, JJ.A. and WILLIAMS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 February 2005
DATE OF JUDGMENT:	22 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 56

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Criminal law – Sentencing – Murder – Voluntary confession to unsolved crime 18 years later – Motive for confession genuine contrition – Waiver of immunity – Alleged agreement with Crown that applicant would not receive life sentence – Life sentence not sought by Crown but nevertheless imposed – Whether contract killing - Court of Appeal bound by judge’s finding on that issue – Applicant’s having committed two subsequent murders and numerous other offences –Whether head sentence or non-parole period crushing or manifestly excessive – Life sentence affirmed, but non-parole period reduced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. and Mrs C. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	In person

CALLAWAY, J.A.:

Mildred Teresa Hanmer was murdered in 1982. The crime remained unsolved for 18 years. Then, in August 2000, the applicant, a prisoner at Port Phillip Prison, took the initiative in voluntarily confessing that he was the murderer. He participated in an interview extending over two-and-a-half hours and made a full statement, revealing that the murder was a contract killing. His identification of the principal was not established but, putting that to one side, detailed investigations corroborated his statement. The learned sentencing judge accepted that that was so and accepted that the applicant came forward through a genuine sense of contrition. His Honour described the applicant’s remorse as genuine and plenary.

In December 2002 the applicant was committed to stand trial. The matter proceeded by way of a contested hearing of one day’s duration, during which two witnesses were called. The applicant indicated that he would plead guilty. He was arraigned in the Trial Division on 14^th February 2003 and did plead guilty. He admitted 21 previous convictions from six court appearances between October 1977 and July 1981.[1] He was sentenced to six years and nine months' imprisonment with a minimum term of three-and-a-half years for armed robbery and other offences in October 1978. He was on parole for those offences at the time he committed the murder. Although it is not recorded in the return of prisoners, the judge ordered that, if the Parole Board now cancelled that parole, the unexpired portion of that sentence be served concurrently with the sentence he imposed.
[1]The transcript shows that the first alleged offence on the further presentment, which was of no consequence in any event, is to be disregarded.

The applicant had also committed subsequent offences. I gratefully adopt the judge’s summary of them in the sentencing remarks. Addressing the applicant, his Honour said:

“From March 1983 until the time you came forward in August 2000 to confess to this murder, you were convicted of 37 offences on 15 different occasions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Brazel

Details

AGLC: R v Brazel [2005] VSCA 56
Case: [2005] VSCA 56
Decision Date: 22 March 2005

CaseChat Overview and Summary

The case of R v Brazel before the court involved a defendant who confessed to a murder that had remained unsolved for eighteen years. The nature of the dispute was centred around the sentencing of the defendant following his voluntary confession, and whether the resultant life sentence, despite not being sought by the Crown, was fair and just. The Court of Appeal was tasked with examining the circumstances surrounding the confession and the subsequent sentencing.

The legal issues before the court required careful consideration of the voluntariness of the confession and the genuineness of the defendant's contrition. Furthermore, the court had to determine whether the agreement between the defendant and the Crown, whereby the defendant would waive his immunity in exchange for a non-life sentence, was binding and enforceable. Additionally, the court was required to assess whether the life sentence imposed was crushing or manifestly excessive, particularly in light of the defendant's subsequent criminal activities, which included two more murders and numerous other offences.

The court, in its reasoning, found that the confession was indeed voluntary and the defendant's contrition was genuine. The court held that the agreement between the defendant and the Crown, while not binding in the traditional sense, did influence the sentencing considerations. The court also noted that the defendant's subsequent criminal conduct played a significant role in the sentencing decision. Ultimately, the court affirmed the life sentence but reduced the non-parole period, concluding that while the sentence was severe, it was not crushing or manifestly excessive given the circumstances.

The final orders of the court were that the life sentence imposed on the defendant would stand, but with a reduced non-parole period. This decision reflects the court's careful balancing of the factors at play, including the voluntariness and genuineness of the confession, the subsequent criminal activities of the defendant, and the terms of the agreement with the Crown.

Orders