R v Brilliantes - [2013] NSWSC 1693

Supreme Court

New South Wales

Medium Neutral Citation: R v Brilliantes [2013] NSWSC 1693
Hearing dates: 1 November 2013
Decision date: 08 November 2013
Before: Adamson J
Decision:
For the murder of Patrick Crowe, he is sentenced to a term of imprisonment of 18 years, commencing on 8 January 2013, with non-parole period of 13 years and 6 months.

Catchwords: CRIMINAL LAW- sentencing- murder- 25 % discount for plea of guilty- objective seriousness- use of weapon- aggravating factors- risk to public safety- offence committed on parole- moral culpability- partial accumulation
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 54A(2)
Cases Cited: Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Previtera (1997) 94 A Crim R 76
Category: Principal judgment
Parties: Regina
Christopher Brilliantes (Offender)
Representation: Counsel:
J Crespo (Crown)
CT Loukas SC (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Proctor & Associates (Offender)

File Number(s): 2012/215971
Publication restriction: Nil Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child witness. Identifying information has been removed from this version of the judgment to comply with the statute.

Judgment

Introduction

On Sunday 8 July 2012, not long after midnight, Christopher Brilliantes went to the Parramatta transport interchange with some associates. There was an altercation, in the course of which Brilliantes stabbed Patrick Crowe and killed him.

The movements of many of the people involved were recorded on multiple CCTV cameras installed within Westfield's Shopping Centre and the Parramatta interchange. The Crown tendered the CCTV footage without objection. It was played in open court at the sentence hearing.

The offender was arrested and charged on 11 July 2012. On 12 April 2013 the Local Court committed the offender for sentence in the Supreme Court. On 3 May 2013 the offender pleaded guilty to murder which was the single count on the indictment.

Facts

The following facts are principally taken from the Statement of Agreed Facts that were signed by the offender on 1 November 2013 (the Agreed Facts) as well as admissions made in the Electronically Recorded Interview of Suspected Person (ERISP). The evidence at the sentence hearing included the CCTV footage, the statements of Judel Godoy and Yadira Rengifo, the offender's criminal history and two probation and parole reports dated 16 March 2012 and 13 July 2012. The offender tendered a report of Dr Olav Nielssen, psychiatrist. He also relied on an affidavit sworn by his mother, Charito Brilliantes, whose evidence was not challenged.

As sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts are agreed or have been established beyond reasonable doubt, but if there are circumstances which I propose to take…

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 Brilliantes

Details

AGLC: R v Brilliantes [2013] NSWSC 1693
Case: [2013] NSWSC 1693
Decision Date: 08 November 2013

CaseChat Overview and Summary

In the case of R v Brilliantes, the defendant was convicted of murder and faced sentencing. The primary issue before the court was the determination of an appropriate sentence for the defendant, considering various factors such as the plea of guilty, the use of a weapon, and the circumstances surrounding the offence. The court also had to weigh the defendant's criminal history, the objective seriousness of the crime, and the potential risk to public safety. The defendant argued for a reduced sentence due to his guilty plea, while the prosecution emphasised the severity of the crime and the defendant's history of violence.

The court found that the defendant's actions warranted a significant discount for his plea of guilty, acknowledging his early admission of responsibility. However, the court also considered the objective seriousness of the offence, particularly the use of a knife which escalated the confrontation and led to the victim's death. The court determined that the defendant's prior criminal record and the circumstances of the offence, including the fact that it was committed while the defendant was on parole, were significant aggravating factors. Additionally, the risk to public safety posed by the defendant's actions was a critical consideration.

Ultimately, the court balanced these factors and imposed a sentence that reflected the gravity of the offence while also considering the discount for the plea of guilty. The court found that the appropriate sentence was one that ensured public safety and provided just punishment for the defendant's actions. The final orders reflected this balance, resulting in a sentence that was both punitive and aimed at protecting the community.

The court ordered that the defendant be detained in custody for a term of imprisonment, with a non-parole period set to ensure that the defendant remains a risk to the community for an appropriate length of time. This decision underscores the importance of considering both the mitigating and aggravating factors in sentencing, particularly in cases involving serious offences committed with the use of a weapon.

Orders

Orders of the court

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Background

Background to the litigation

The following facts are principally taken from the Statement of Agreed Facts that were signed by the offender on 1 November 2013 (the Agreed Facts) as well as admissions made in the Electronically Recorded Interview of Suspected Person (ERISP). The evidence at the sentence hearing included the CCTV footage, the statements of Judel Godoy and Yadira Rengifo, the offender's criminal history and two probation and parole reports dated 16 March 2012 and 13 July 2012. The offender tendered a report of Dr Olav Nielssen, psychiatrist. He also relied on an affidavit sworn by his mother, Charito Brilliantes, whose evidence was not challenged. As sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts are agreed or have been established beyond reasonable doubt, but if there are circumstances which I propose to take into account in favour of the offender it is sufficient that they be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. At about 7.30 pm on Saturday 7 July 2012 Patrick Crowe met with two friends, Joshua Thompson and Dean Roche, at Church Street Mall in Parramatta. In the hours that followed the three attended various licensed premises and consumed alcohol. At approximately 1.00 am, they were refused entry to the Albion Hotel because they were intoxicated. Crowe and one of the other two had to be removed from the premises by force. At about 1.45 am on Sunday 8 July 2012, the three men were walking along the Church Street Mall when they passed three young females who were sitting on a park bench. They were FE, HH and ZP. They taunted the three men, who retaliated with verbal taunts and abuse. Crowe threatened the three females. Thompson walked ahead of Crowe and Roche, but they soon caught up with him. The three headed towards the Parramatta interchange in Argyle Street to catch a bus home. Roche realised that the females were following them at a distance. When Roche went into Hungry Jacks Restaurant to buy food, the three females went in after him. FE's brother, KE, joined them there. By this time Crowe and Thompson had gone ahead to the bus stop. Crowe rang Roche from the bus stop to let him know that the bus was nearly due. About this time, FE received a telephone call from young person JV, following which JV telephoned Brilliantes. Brilliantes was at a party in a home unit on Noller Parade with Judel Godoy and young persons TC and SL. They were drinking alcohol and smoking cannabis together. Brilliantes had also smoked ice. As a result of what JV told Brilliantes, he announced to the males around him, "There is going to be a punch on." Before they left the unit Godoy noticed that Brilliantes had a knife which had a black handle and a serrated blade that was about 16 cms long. When Godoy asked him why he had the knife, Brilliantes explained that it was in case anyone else had a weapon. The four males left the unit and walked to the Parramatta bus interchange to meet JV. Neither SL nor JV was aware that Brilliantes had a knife.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Brilliantes [2013] NSWSC 1693
Hearing dates:	1 November 2013
Decision date:	08 November 2013
Before:	Adamson J
Decision:	For the murder of Patrick Crowe, he is sentenced to a term of imprisonment of 18 years, commencing on 8 January 2013, with non-parole period of 13 years and 6 months.
Catchwords:	CRIMINAL LAW- sentencing- murder- 25 % discount for plea of guilty- objective seriousness- use of weapon- aggravating factors- risk to public safety- offence committed on parole- moral culpability- partial accumulation
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, s 54A(2)
Cases Cited:	Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Previtera (1997) 94 A Crim R 76
Category:	Principal judgment
Parties:	Regina Christopher Brilliantes (Offender)
Representation:	Counsel: J Crespo (Crown) CT Loukas SC (Offender) Solicitors: Solicitor for Public Prosecutions (Crown) Proctor & Associates (Offender)
File Number(s):	2012/215971
Publication restriction:	Nil Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child witness. Identifying information has been removed from this version of the judgment to comply with the statute.