R v Briggs (No 9)

[2014] NSWSC 1805

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Briggs (No 9) [2014] NSWSC 1805
Hearing dates:	17 June 2014, 11 December 2014
Decision date:	17 December 2014
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	Sentenced to imprisonment for 18 years to date from 26 December 2012 and expire 25 December 2030, comprising a non-parole period of 13 years, followed by a balance of the term of sentence of 5 years. The first date upon which the offender will be eligible for release to parole is 25 December 2025.
Catchwords:	CRIMINAL LAW - remarks on sentence - plea of guilty to murder during trial - offender bashed deceased in his own home - intention to inflict grievous bodily harm, not death - spontaneous offence - some evidence of remorse - offender had serious and longstanding problem with alcohol - offender on conditional liberty at the time of the offence
Legislation Cited:	Crimes Act 1900 (NSW), s 157 Crimes (High Risk Offenders) Act 2006 (NSW), s 25C Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 28(4)
Cases Cited:	R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Category:	Sentence
Parties:	Regina Cecil Paul Briggs
Representation:	Counsel: Mr J McLennan SC (Crown) Mr J Stratton SC (Offender) Mr C Bruce SC (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Offender) Matthew Lorkin Solicitor (Offender)
File Number(s):	2012/399846

Judgment

1. On 4 June 2014, Cecil Paul Briggs (the offender) was arraigned on an indictment in the Supreme Court at Armidale before a jury panel and me. The indictment contained a single count alleging that, on 26 December 2012 at Armidale, the offender murdered Douglas James Bindley (the deceased). The offender pleaded not guilty to murder but guilty to manslaughter. In fact, he had entered the same plea many months before on arraignment. That plea was not accepted by the Crown, and a trial commenced. It became clear during the trial that the position of the offender was that his guilt was reduced from murder to manslaughter by way of excessive force used in self-defence.

1. The trial proceeded for just over two weeks. Very close to the end of the Crown case, senior counsel then appearing for the offender requested that he be re-arraigned. On that occasion, the offender changed his plea and pleaded guilty to murder. I accepted the plea, returned a verdict of guilty of murder pursuant to s 157 of the Crimes Act 1900 (NSW), and discharged the jury.

1. Thereafter the offender dispensed with the services of his solicitor and senior counsel. The matter was delayed for many months, chiefly because of the inability of the offender to arrange new legal representation. Whilst that delay is regrettable, in the circumstances that I shall go on to explain I do not take it into account against the offender.

1. Oral and documentary evidence was received by me on sentence on 17 June 2014 in Armidale and on 11 December 2014 in Sydney. The culmination of the procedural background is the imposition of sentence by me today.

1. The maximum penalty for the offence of murder is imprisonment for life without parole. Parliament has prescribed an applicable standard non-parole period of 20 years. I have regarded both the maximum penalty and the standard non-parole period as important guideposts in the exercise of my sentencing discretion.

1. My approach to the determination of any disputed facts is as follows. Any fact that is adverse to the offender, above and beyond the elements of the offence to which he has pleaded guilty, must be proven beyond reasonable doubt. A fact that is in his favour need be proven on the balance of probabilities only: The Queen v Olbrich [1999] HCA 54; 199 CLR 270. Some facts may be unable to be determined on the evidence placed before me.

Undisputed facts

1. It is convenient to discuss the relevant events in general chronological order.

1. In December 2012 the offender and his family were visiting Armidale from their home in Dorrigo.

1. During the morning of Christmas Eve 2012, Mr Moran, a friend of the offender, and Mr Moran's partner, Ms Kim, ran into the offender in the centre of Armidale while doing some Christmas shopping. At the time, the offender had been abstinent from alcohol for at least some weeks. Mr Moran was himself abstaining from drinking. For some reason that is very hard to understand, Mr Moran encouraged the offender to join him on a visit to a number of hotels near the centre of Armidale. Regrettably, the offender drank quite a few schooners of full-strength beer. At some stage Mr Moran saw fit to purchase a large bottle of port for the offender. For a time during the day the offender was in the presence of neither Mr Moran nor Ms Kim. Eventually, the offender and his friend met up with Ms Kim. All three of them returned to the home of Mr Moran. By that stage the offender was well affected by alcohol.

1. A couple of hours later, whilst being driven through the streets of Armidale by Mr Moran and Ms Kim, the offender suddenly asked to be dropped off at the home of the deceased. The deceased and the offender were, in fact, old friends. Prior to that request the offender had seemed to be happy and untroubled. He had not said anything negative about the deceased. When he alighted from the car he was not armed with any weapon, and did not appear to be angry or upset. He approached the small apartment of the deceased, who opened the door to his old friend.

1. Mr Bindley was aged 47 years, and suffered from a serious problem with alcohol. It had badly affected his health in a number of ways. Although not an old man, he had difficulty walking, and was assisted on occasion by his next door neighbour and by the proprietor of a general store across the road. A post-mortem would later reveal that he had suffered a heart attack a couple of weeks before the offender visited.

1. Very soon after he entered the home of the deceased, the offender commenced to beat him brutally. At least 24 separate blows were applied to the person of the deceased, causing 24 separate injuries. The evidence establishes that two weapons were used: a wooden chair leg and a small baseball bat. The offender suffered no injuries whatsoever. Whilst the bashing was being inflicted, two young men who were visiting the general store across the road heard the offender shouting "fucking with my family" and "I'm gonna kill you, I'm gonna fucking kill you". At one stage the offender left the apartment, and was seen to come out onto the street. He returned indoors, and continued his assault upon the deceased.

1. The police were called and the offender arrested. The offender initially denied inflicting any injuries to the deceased, and falsely claimed that he had found the deceased in his injured state after someone else had assaulted him. The police officers formed the view that, during the assault, the offender had been accusing the deceased of sexually interfering with at least one of the children of the offender. There was no dispute between the parties about the correctness of that interpretation.

1. The deceased was conveyed to hospital. Later that afternoon a detective spoke with him there. The detective gave evidence in the witness box at trial that the deceased told him that "I was at home and I heard banging on the door. When I opened the door it was Cecil Briggs. He was going off at me and he came inside. He smashed a chair in the lounge, picked up the leg and started hitting me. I tried to get up but he pushed me back onto the chair and kept hitting me."

1. Were it not for the pre-existing frailty of the deceased, in all likelihood the injuries inflicted by the offender would not have caused his death. However, the combination of the prior ill-health of the deceased with the injuries inflicted upon him by the offender tragically led to him passing away on 26 December 2012.

1. On arrest on the charge of murder later that evening, the offender said to the arresting detective "I knew it was bad, this is terrible, but I can't justify what happened."

1. In short, there was no dispute between the parties that a voluntary act of the offender - the bashing inflicted upon the deceased - substantially contributed to the death of Mr Bindley. Nor was there any dispute that, at the time of the bashing, the offender possessed an intention to inflict really serious physical injury upon the deceased. The parties were agreed that I would not be satisfied beyond reasonable doubt that the offender intended to kill. The parties were also agreed that I would not be satisfied that the assault was anything other than a spontaneous, unplanned and unpremeditated explosion of violence. Although neither party submitted that I could take the intoxication by alcohol of the offender into account as a mitigating feature, both parties were content for me to consider it as part of the explanation for what occurred.

Resolution of disputed facts

1. The facts in dispute between the parties were of a small compass, and focused upon why it was that the offender came to assault the deceased very shortly after the offender arrived at the premises.

1. The Crown Prosecutor submitted that I would safely infer that, during the time whilst the offender was absent from the company of Mr Moran and Ms Kim, some malicious person told the offender the completely false story that the deceased had been sexually interfering with a member of the family of the offender. Having been told that, the offender brooded upon it, but said nothing to his friends about the allegation. When he alighted from the car outside the home of the deceased, the offender had not formed an intention to inflict really serious physical injury. He had, however, in the submission of the Crown Prosecutor, formed an intention to confront the deceased angrily about what the offender had been told.

1. Senior counsel for the offender submitted that, to the extent that it would be an aggravating feature of the offence for the offender to have decided upon a confrontation at the time he alighted from the vehicle, I could not be satisfied of that feature beyond reasonable doubt. He invited my attention to the evidence in the trial of Mr Moran and Ms Kim that, as I have said, the offender seemed untroubled in the period leading up to his unexpected visit to the deceased. The thesis of senior counsel was that, as can happen between old friends who are heavy drinkers, some badly crossed wire or deep misunderstanding developed between the offender and the deceased very soon after the arrival of the offender. It was that misunderstanding, he submitted, and not something that the offender had been told previously, that led the offender to do what he did.

1. This dispute is a very limited one, in that, as I have said, each party accepts that the offence was spontaneous, and the Crown does not assert that the offender had formed an intention to inflict really serious physical injury when he alighted from the car.

1. I think that there is force in the submission of the Crown Prosecutor. I strongly suspect that somebody, for whatever reason, told the offender lies about the deceased, with catastrophic results. But in light of the evidence of Mr Moran and Ms Kim, I am not satisfied of that beyond reasonable doubt, and therefore put my suspicion to one side.

1. I accept the submission of defence counsel that, for some reason that I am unable to determine, very soon after his arrival in the apartment the offender formed an intention to inflict really serious physical injury. Having said that, I am not satisfied on the balance of probabilities that the deceased did anything to provoke the assault.

1. Separately, it is true that, in the proceedings on sentence of 17 June 2014 in Armidale, the offender gave evidence before me that he had acted in self-defence. I inferred that his implicit position was that that was not sufficient to reduce murder to manslaughter (in light of the plea of guilty to murder that he had entered the day before), but that it was in some sense mitigating.

1. The eminent member of the Inner Bar who appeared at the conclusion of the proceedings on sentence did not seek to persuade me that I should accept that evidence on the balance of probabilities. Accordingly, I have put that evidence to one side, except of course to the extent that it sheds light on the remorse of the offender, and his general credibility.

1. As against the possibility that I have misunderstood the position of defence counsel, and the possibility that it may be said in future that there was evidence before me that the offender acted to some degree in self-defence, I should say that I completely reject that proposition. In light of my understanding of the position of senior counsel, I shall not engage in a detailed analysis of the evidence. It is enough to say that the evidence of the offender was inconsistent with objectively proven facts coming from disinterested witnesses. It also beggared belief that a man of the frailty of the deceased would attack the offender, a solid and healthy man. It is also the case that no motive whatsoever was ascribed to such an attack. It is to be noted that an assertion that the offender was acting in self-defence is completely inconsistent with what the offender said when arrested for murder. Finally, I assess the oral evidence of the offender in the context of the fact that, in May 2013, he told a forensic psychiatrist that, in truth, he had no memory of the day of the offence.

Assessment of objective seriousness

1. I turn to discuss the objective seriousness of what the offender has done.

1. Of course, all murders are crimes of great gravity, constituting as they do the unlawful taking of the life of a fellow human being in the most serious circumstances known to the criminal law. Having said that, it is possible to grade them in their seriousness to some degree. For example, the cold-blooded murder of a sleeping victim by a contract killer with a silenced pistol will almost always be more serious than a murder that occurs in the course of a hotel brawl between two fit young men, one of whom goes too far in defending himself, and who at the time intends to inflict nothing more than really serious physical injury by way of his fists.

1. Here, the victim of this homicide was a frail and defenceless middle-aged man. He was attacked in his own home. The beating was extended and no doubt painful and terrifying. It featured a pause, during which the offender left the premises and collected himself, but thereafter re-entered and continued the fatal attack.

1. To be balanced against all of that is the fact that the offender intended to inflict really serious physical injury, and not to kill. The injuries directly inflicted by the offender were not of the utmost gravity, and did not feature fractures of the skull, the nose, or indeed any other bone. As well as that, the attack was not cold-blooded but rather completely unplanned, and occurred when the offender was in a highly emotional state.

1. To my mind, this is not one of the gravest murders that has come before the Supreme Court of New South Wales. But nor can it be assessed as an example of that offence that is at the lower end of the range of objective gravity; quite the contrary. It is an objectively serious example of the most serious offence known to law.

Subjective features

1. I turn from a discussion of the offence to a discussion of the life and character of the offender.

1. As I have said, the offender pleaded guilty to murder at a late stage of his trial. Still and all, that plea saved a number of days in court that would have been occupied by any evidence in the defence case, the final addresses of counsel, and my summing-up. It also spared 12 members of the community from the always difficult task of sitting in judgment on a fellow citizen with regard to a violent homicide. I consider that the sentence that I would otherwise have imposed should be discounted by 5% to reflect the usefulness of the plea of guilty of the offender. To the extent that that reduction from a putative starting point results in a few spare days or weeks, they will be rounded down, because the law does not concern itself with trifles.

1. As for remorse, the evidence is not all one way. As I have said, on the day immediately after the plea was entered, the offender gave sworn evidence that generally sought to excuse his conduct. I have already explained that I have not been asked to act upon that evidence; in any event, I reject it. Other than a brief remark on that occasion that "Dougie was my mate. I didn't want to hurt Dougie", I have not heard from the offender on oath about how he feels about what he has done.

1. Having said that, I think that, in truth, what the offender said in the proceedings on sentence, and indeed much of what he has said in the last two years generally about the offence, is the result of alcoholic confabulation. I accept the accuracy of what the offender said to Dr Westmore almost 18 months ago: the reality is that he cannot really remember the day of the murder.

1. It is also the case that, on occasions over the past two years, the offender has indeed expressed remorse. As I have said, upon his arrest on 26 December 2012, he said to a detective "I knew it was bad, this is terrible, but I can't justify what happened." To Dr Westmore on 10 May 2013 he said "it's terrible, it's sad. You feel for any person it's happened to". A letter from a prison chaplain of 21 July 2014 that became exhibit 7 records that "[the offender] appeared to be extremely remorseful for his actions, the pain and stress it has caused his family, friends, loved ones, victims and the community."

1. The presentence report of 1 December 2014 records that:

[The offender] is "saddened" by the victim's death as he was a friend but furthermore he is also upset by the impact this incident has had on not only the victim and himself but also their respective families and the local community.

1. It is certainly true that, over the past many months, the offender has struggled to come to grips with the enormity of what he has done, and the inevitable consequences that he will suffer as a result. I think that the disrupted conduct of his litigation is very much a reflection of that struggle. Nevertheless, having reflected upon the matter, I have come to accept on the balance of probabilities that the offender regrets not only the punishment that will be imposed upon him, but also what he did to the deceased, his family and friends, and the community generally. It follows that my sentence will reflect a finding of remorse on the part of the offender.

1. The offender was born in May 1971. He was aged 41 at the time of the offence, and is now aged 43. He is an Aboriginal man from Gumbaynggir lands. He left school in Year 9, and worked mainly as a labourer. At the time of the offence the offender was in a long term de facto relationship. He has five children from that relationship, and another child from a previous relationship.

1. Far from being born into deprivation, he enjoyed a happy and stable childhood. His parents were hard-working and religious people who took pride in their respected position in the Armidale community. The offender was well adjusted and outgoing as a child, and a good sportsman.

1. For reasons that are not easy to understand, something went wrong in his adolescent years. He fell in with the wrong crowd, and began to abuse alcohol and thereafter prohibited drugs. A very insightful and reflective letter from his sister has detailed that process, and tried to provide an explanation as to why it occurred. In truth, alcohol and, to a lesser degree, prohibited drugs, have marred the life and happiness of the offender for many decades.

1. In the proceedings on sentence, the offender gave frank evidence that he regarded himself as an alcoholic. To his credit, he has sought to deal with the problem, including by way of residential rehabilitation programs on at least four occasions. His inability to succeed in that struggle culminated in the tragic death of the deceased on Boxing Day 2012.

1. Defence counsel has accepted that his client was subject to two forms of conditional liberty on the day of the offence. That was by way of a good behaviour bond and a suspended sentence, imposed for the offences of stalking or intimidation and contravening an apprehended violence order respectively. He also accepted that his client has an extensive record for violence, and has been imprisoned for such offences. Still and all, there is force in the submission of defence counsel that one can infer that those offences were not of the greatest seriousness, all of them having been dealt with in the Local Court. I also accept that the criminal record of the offender shows that the longest period of full-time imprisonment to which he has been sentenced is nine months with a six month non-parole period (he has also been sentenced to a longer period of periodic detention). Finally, I accept that most if not all of those entries were connected to drunkenness, and that some of them were interactions with the police that began relatively trivially and thereafter escalated.

1. There can be no question but that the commission of this grave offence of violence whilst on conditional liberty, itself imposed for an offence founded upon fear of violence, is a serious aggravating feature. To be weighed against that is the proposition that the criminal record of the offender would not of itself lead one to be unduly pessimistic about his prospects of rehabilitation, a topic to which I shall return.

1. A neurologist has assessed the offender as operating at the borderline between normal functioning and intellectual disability. He also expressed the opinion that 96% of people who share the age of the offender would operate at a higher intellectual level than he does. Defence counsel submitted that that would lead me to place less emphasis in my sentence on personal and general deterrence. To the contrary, the Crown Prosecutor submitted that the offender well appreciated the link between drinking and criminality on his part; so much is established, indeed, by his repeated efforts to get help. I accept that submission. As well as that, I think that the offender understood and understands perfectly well the complete unacceptability of inflicting a severe bashing on a defenceless invalid. My sentence reflects reduced emphasis on general and personal deterrence, but only to a very small degree.

Prospects of rehabilitation

1. In custody, the offender has progressed very well. He has been appointed head sweeper of his pod, and is regarded as a role model for newly imprisoned young offenders in general, and young Aboriginal offenders in particular. Quite apart from working, he busies himself with Bible study and is highly regarded by the prison chaplain at the MRRC.

1. Regrettably, his relationship with his partner has come to an end as a result of his incarceration. The offender hopes in due course to be moved to a prison on the mid-north coast of New South Wales, so that he can more easily have contact with his family and friends.

1. It is very much to be hoped that the offender is able to get help over the years ahead with regard to his problems with alcohol and prohibited drugs. I agree with the Crown Prosecutor that, in light of the repeated failures in the past, culminating in the most serious offence known to law, one should exercise caution in assessing the prospects of rehabilitation of the offender favourably. Nevertheless, having reflected cautiously on that topic, I think that, if the offender is able to get help, both whilst in custody and upon his release, his prospects of rehabilitation are quite good.

Various matters

1. I turn to deal briefly with a number of separate aspects of my task.

1. First, each party agreed that my sentence should be backdated to the date of arrest with regard to this offence; namely, 26 December 2012.

1. Secondly, I do not propose mechanistically to state the aggravating and mitigating features that I have taken into account for the purposes of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). These remarks on sentence fulfil that role. I have referred to the section, and taken care to avoid double counting.

1. Thirdly, defence counsel submitted that I should find special circumstances that would reduce the non-parole period, even despite the inevitable length of any parole period. His submission was that the offender will require a great deal of help after having spent a substantial period in custody, and that an extended period of conditional liberty is not only in the interests of his client but also of the community. The Crown Prosecutor submitted that, in light of the repeated failures of the offender in the past, such an approach would be of no utility.

1. It is true that, in the past, the offender has committed offences of violence. It is also true that he has been imprisoned on occasion. But returning to the community after many years in prison will be a massive re-adjustment for him. I do not think that his sincere but ultimately fruitless efforts to rehabilitate himself in the past should stand in the way of a finding of special circumstances for the future. I propose to reduce the non-parole period, but only to a very small degree. That is because I would regard any non-parole period shorter than the one that I shall impose as not adequately reflecting the objective seriousness of this offence, and the moral blameworthiness of this offender.

1. Fourthly, I am required by s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) to inform the offender that he may be detained even after the complete expiry of his head sentence, if it is considered that he remains a danger to the community.

Victim impact statement

1. I received a victim impact statement from Ms Lisa Bindley, the sister of the deceased. It reflected the deep pain that she and many others who loved Douglas James Bindley have suffered since the death of her brother almost two years ago. I consider it appropriate, pursuant to s 28(4) of the Crimes (Sentencing Procedure) Act, to take the contents of that victim impact statement into account in determining the appropriate sentence for the murder of the deceased.

1. Ms Bindley stated that her brother's death had left a "huge hole" in her family, and has had "detrimental effects on the physical and emotional health and wellbeing" of all family members. The fact that the fatal assault occurred on Christmas Eve means that, every year, what should be a happy family celebration must become a wounding anniversary.

1. On behalf of the Supreme Court of New South Wales, I extend my condolences to all those who have suffered, and will continue to do so, as a result of the senseless crime of the offender. I hope that the conclusion of proceedings in this Court after many months will provide a degree of closure and relief to all of those who are grieving.

Imposition of sentence

1. Cecil Paul Briggs, you are convicted of the offence of murder.

1. I sentence you to a non-parole period of imprisonment for 13 years to date from 26 December 2012. That will be followed by a parole period of five years. The earliest possible date for your release to parole is 25 December 2025.

1. To express my sentence another way, the offender is sentenced to a head sentence of imprisonment for 18 years to date from 26 December 2012 and expire on 25 December 2030, with a non-parole period of 13 years.

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Decision last updated: 17 December 2014