R v Brilliantes
[2013] NSWSC 1693
•08 November 2013
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 76Category: 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 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.
The murder and the events leading up to it
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.
By this time Roche had joined Crowe and Thompson at the bus stop. He noticed that the three females they had seen before were also there.
Further verbal insults were exchanged between the three females and Thompson. When Roche did not take part, Crowe became annoyed since he saw Roche as siding with the females. Crowe pushed Roche in the chest and made him fall backwards into a large planter box.
During the exchange, FE was taking calls on a mobile phone. In the course of one of these calls, she was heard to say: "I'm waiting at the bus stop". Phone records confirm that FE's mobile number received seven telephone calls from JV's mobile number between 9.45pm to 1.57am. The shortest of these calls lasted 11 seconds and the longest 2 minutes and 49 seconds.
Six phone calls, lasting between 30 and 90 seconds, were made from JV's mobile number to Brilliantes' mobile number that night between 01:40am and 01:50am.
Shortly after these telephone calls, CCTV footage shows five males running towards Crowe, Thompson and Roche. These five males were TC, JV, SL, Godoy and Brilliantes. As the males approached, FE pointed to Crowe and said: "This guy, this guy".
TC, JV and SL circled Crowe and Roche and began to assault them. Brilliantes remained about three metres from where the assault was taking place. Godoy did not approach any of the victims and did not participate in the assault.
Roche attempted to protect Crowe from the assault. The three young persons cornered Crowe and Roche next to the bus shelter. Brilliantes stood towards the back of the group, as did Thompson. Thompson saw Brilliantes produce a knife and point it at him. Brilliantes said: "Don't come any closer unless you want to be stabbed." Thompson backed away in fear. As soon as FE realised that Brilliantes had a knife, she pointed Crowe out to him. When she had done so, she stood on the sidelines and cheered with her fist raised in the air.
Brilliantes lunged towards Crowe and stabbed him with the knife. Crowe sustained a deep stab wound to the left side of his torso.
Crowe collapsed. A witness came to his aid and wrapped his shirt around Crowe's wound. Thompson and Roche called Triple-0. Police and Ambulance arrived. Crowe was taken to Westmead Hospital where he underwent emergency surgery to repair a collapsed lung. At about 6:50 am that morning he died.
Immediately after the stabbing, Brilliantes ran from the scene, as did TC, JV, SL, KE and the three female young persons. Brilliantes tried to give Godoy the knife he had used to stab Crowe, but Godoy refused.
Brilliantes and Godoy ran up Argyle Street where they cut across a pedestrian crossing which led them to Valentine Street. Brilliantes tried to pass Godoy the knife again. Godoy saw blood dripping from the knife. Brilliantes asked Godoy to take the knife and clean it but Godoy refused. Brilliantes picked up a paper bag from the ground, put the knife inside and threw the bag and its contents into a bin.
The pair continued to run towards Brilliantes' home in Parramatta. When they arrived, TC, SL, JV, FE and ZP were already waiting outside. They all went inside and Brilliantes changed his clothes.
About half an hour later the group returned to the unit on Noller Parade. Brilliantes, Godoy, FE and SL went by taxi; the others walked.
The aftermath of the murder
At 4:20 pm on Wednesday 11 July 2012, a search warrant was executed on the unit on Noller Parade. TC, Brilliantes and Godoy were arrested and taken to Parramatta Police Station.
Brilliantes made the following admissions when interviewed by police:
He received a phone call from JV who told him his cousins were in trouble at the bus stop at the Parramatta train station.
He was at a friend's home earlier in the night with Godoy, TC and SL.
He told Godoy, TC and SL at the house that he thought there was going to be a fight.
After receiving the telephone call from JV he ran from the house with Godoy, TC and SL and met JV in front of the crossing at the Albion Hotel.
From the Albion Hotel they ran to the interchange in Parramatta.
TC, JV and SL ran over and fought Crowe and his friends while he and Godoy stayed back.
He told police that he just snapped and stabbed Crowe in the back and ran straight away "...they were punching on and then I don't know what I was thinking. I was just so smashed that I stabbed the bloke, cause I didn't, I wasn't hitting or I didn't punch on or anything like that. I just ran in and just stabbed him and that's it and then I ran".
He told police that they had been smoking marijuana and drinking wine earlier that night. He said that he was "high" but did not admit to taking other drugs.
He said: "I just, I felt angry and then once it was over I felt scared and I felt like shit".
He ran home afterwards with Godoy and JV and the girls came to his house.
He told police he was angry when he returned to the house and said "Because I done that for a stupid reason. I didn't even know these people very well and I came to help them out and oh it's stupid".
Brilliantes was asked by police if at the time he thought it was possible that Crowe would die and he stated: "Yeah ... oh, just maybe if I hit him the wrong way, wrong place or like just anything like that yeah ... he'd die".
The offender admitted that ten seconds before stabbing Crowe he showed the tip of the blade to one of Crowe's friends so that he would step back and only said, "just don't move" and the friend then screamed out "he's got a knife".
There was no discussion prior to going down to the bus stop about stabbing someone.
Straight after the stabbing Brilliantes told TC, SL, JV, Godoy and the girls that he had stabbed Crowe.
The offender thought that he threw the knife in a bush somewhere but couldn't remember. He said that he did not want to have it in his hand.
The offender admitted that he took clothes to his friend's house and was going to stay there because he thought people would know it was him who stabbed Crowe and he wanted to avoid people.
The offender stated that he was sad, it was stupid and he regretted what he did.
In the course of the interview Brilliantes identified photographs of clothing he wore on the night and identified and signed CCTV stills of himself holding a knife as well as stills of the males who had been with him and others he recognised. He also drew a picture of the knife he had used which he described as resembling a steak knife.
Brilliantes also made the following self-serving statements in the record of interview which are not agreed by the Crown:
TC had the knife to begin with and once they got down to the train station TC pulled out the knife and gave it to him.
He saw Crowe and his mates hitting and pushing the girls with whom JV was acquainted.
When he was 5 meters away he saw Crowe push two of the girls. One of the girls fell into a pot plant when she was pushed by Crowe.
The offender stated they targeted Crowe because "he was the loudest one. He wanted to fight. He started fighting everyone".
The offender stated that Crowe was "fighting back. He was fighting us first. Like he was fighting SL, TC, JV. He was hitting, fighting them".
The offender said that it was just an accident. He said the first he knew that Crowe had died was when he saw it on the news.
Counsel for the offender accepted that he did not see Crowe push or hit the two girls. However, she contended that Brilliantes might have mistaken the incident where Crowe pushed Thompson into the planter box and believed, incorrectly, that Crowe had assaulted one of the females. I am not satisfied that Brilliantes believed at any time that Crowe had used any violence or direct force against any of the females. In my view, he made this up to excuse his own aggression.
Counsel for the offender accepted that the knife was in Brilliantes' possession while he was at the interchange although she contended that I ought find that it was provided to him by TC before they arrived at the interchange. I am satisfied on the basis of Mr Godoy's unchallenged statement that it was Brilliantes who was responsible for bringing the knife from the unit to the interchange.
Cause of death - Injuries
An autopsy was completed on 8 July 2012. The direct cause of death was found to be a stab wound to the chest. At the time of death Patrick Crowe was 22 years old, 170cm tall and weighed 58kg.
A sharp force injury was identified on the left chest wall, extending through the left lower lobe of the lung from the lateral to the medial surface and continuing through the pericardium to the posterior left ventricular wall to a depth of 5mm involving the vital portion of the circumflex coronary artery. There was also a wound on the left shoulder, which was not causative of death and which cannot necessarily be attributed to Brilliantes.
Toxicology
The deceased's blood alcohol was found to be 0.051g/100ml and his urine alcohol 0.161g/100ml. These results are likely to be lower than the actual concentrations since tests were performed following blood transfusions and fluid replacement. No drug of abuse was detected.
At 2:50am on 8 July 2012, when Crowe was still alive, a high blood alcohol level was detected in his blood. This is likely to reflect some level of intoxication shortly before death, depending on individual tolerance.
Based on autopsy findings, including a review of the medical records and evaluation of the toxicology reporting, the cause of death was the stab wound to the deceased's chest. A blade of an approximate minimum length of 10cm would have been required to inflict this injury.
Factors relevant to sentence
The purposes of sentencing include punishment, specific and general deterrence, protection of the community, rehabilitation of the offender and a recognition of the harm done to the victim and to the community.
The Court has to take into account the fact that the offender has pleaded guilty, the time at which the offender pleaded guilty and the circumstances in which he did so. The plea entitles me to impose a lesser sentence than I would otherwise have imposed as long as the sentence is not thereby rendered unreasonably disproportionate to the nature and circumstances of the offence. The discount for the utilitarian value of the plea is largely determined by its timing.
The offender contended that he ought be regarded as having pleaded at the earliest available opportunity and is therefore entitled to a discount of 25%. The Crown submitted that a discount between 15% and 20% was appropriate. I consider a reduction of 25% to be appropriate since the offender pleaded guilty at an early stage and the utilitarian value of his plea is high.
Objective seriousness of the offence
The sanctity of human life is of great significance. The unlawful and intentional taking of a human life is a heinous crime.
The offence of murder carries a maximum sentence of life imprisonment. The applicable standard non-parole period (SNPP) is 20 years. The SNPP represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness (s 54A(2) of the Crimes (Sentencing Procedure) Act 1999) whereas the maximum sentence is to be given only in the most severe of cases. The SNPP and the maximum sentence are considerations that are relevant to the exercise of sentencing discretion: Muldrock v The Queen [2011] HCA 39; 244 CLR 120, at [27].
The Crown, in my view correctly, did not contend that this murder is in the category of offences for which a life sentence ought be imposed.
I am not satisfied beyond reasonable doubt that Brilliantes intended to kill Crowe. I am, however, satisfied that he intended to cause Crowe grievous bodily harm when he inflicted the wound that proved to be fatal by stabbing him in the chest with a knife and puncturing his lung.
Before Brilliantes revealed that he had a knife, he had the opportunity to assess whether anyone in the opposing group was armed. As soon as he brandished the knife, Roche, Thompson and Crowe backed away. Brilliantes took advantage of the physical supremacy that the knife afforded him by stabbing Crowe. It was an impetuous, senseless, cowardly act of violence against someone who happened to be in the wrong place at the wrong time and who posed no immediate or relevant threat to Brilliantes or, at that time, to anyone else.
It is of significance to the objective seriousness of the offence that the offender brought the knife to the scene and produced and used it in circumstances where he had reason to believe that the members of the opposing groups would otherwise assault each other with their bare fists.
Brilliantes produced and used the knife at an interchange, where members of the public who use public transport are required to assemble and wait, sometimes for a substantial period. There was a risk of members of the public endangering themselves to help a victim of such violence or by fleeing from the scene to escape being caught in a confrontation between groups. The risk to public safety presented by Brilliantes' conduct is an aggravating factor.
Other matters relevant to sentence
Offender on conditional liberty when offence committed
It is an aggravating factor that the offence was committed while Brilliantes was on conditional liberty. He was on parole for offences that included two counts of aggravated break and enter that were committed on 14 July 2010. Brilliantes was released to parole on 13 March 2012. His parole was due to expire on 17 July 2013.
The commission of the offence of murder was not the only breach of the offender's parole. On 10 May 2012 a urinanalysis test detected amphetamine and methamphetamine. On 18 June 2012 he was accepted into a Drug and Alcohol Addiction Programme but he was withdrawn from the programme on 10 July 2012 for breach of the attendance requirements. He changed his address without notifying probation and parole.
Further, and of greater significance, the offender committed additional offences on 27 June 2012, 11 days before the murder. He was with a group of males at Westfield Shopping Centre, Parramatta at about 2.30 pm when he participated in an affray by challenging a male to fight and punched him twice to the upper body area.
Criminal history and other offending
Brilliantes' criminal history, set out in the table below, is relevant to the sentence to be imposed.
Date of Offence
Date of Sentence
Court
Offence
Sentence
8/02/09
16/10/09
Parramatta District Court
Aggravated Break & Enter & CSIO H357147641
2 yrs 3 mths imprisonment, NPP 12 months
Commence 8/02/10
NPP expires 7/02/10
Sentence expires 7/05/11
14/07/10
16/05/11
Parramatta District Court
Aggravated Break & Enter & CSIO
H41624021
Aggravated Break & Enter & CSIO
2 yrs 7 mths imprisonment, NPP 1 yr 3 mths
Commence 14/12/10
NPP expires 13/03/12
Sentence expires 13/07/13
2 yrs 7 mths imprisonment, NPP 1 yr 4 mths
Commence 14/09/10
NPP expires 13/01/12
Sentence expires 13/04/13
14/07/10
18/05/11
Parramatta Local Court
6xDeal with Proceeds
H43643451
9 mths imprisonment
Commence 18/05/11
Sentence expires 17/02/12
27/06/12
12/04/13
Parramatta Local Court
Affray H48325147
Furnish False Info/Statement
Goods Suspected Stolen
6 mths imprisonment
Commence 8/11/12
Sentence Expires 7/05/13
Section 10A
1 mth imprisonment
Commence 13/03/13
Sentence expires 12/04/13
As the table set out above indicates, Brilliantes was in custody from 8 February 2009 until 7 February 2010. He was returned to custody on 15 July 2010 and was released on 13 March 2012. He was returned to custody on 12 July 2012 when he was arrested and charged with murder. When his sentence for past offences, including the affray committed on 27 June 2012, expired on 17 July 2013, he remained in custody on remand for this offence from 18 July 2013. He has spent most of his short adult life in gaol.
Brilliantes murdered Crowe in circumstances that demonstrate his continuing attitude of disobedience to the law, disregard of the safety and wellbeing of others and his practice of resorting to violence. These matters illuminate his moral culpability. They also show the need to impose an appropriate punishment to deter the offender himself and other offenders from committing further offences of similar kind.
The offender submitted that I should take into account as a mitigating factor that he has good prospects of rehabilitation and was unlikely to re-offend. I am not satisfied of this matter. Although he will be older when he is eventually released from custody, I am not satisfied that he will either be wiser or more able to control his impulses or more able to express them in a non-violent way.
Accumulation or concurrence with sentences imposed for prior offending
The offences committed on 27 June 2012 for which the offender was sentenced, after his arrest on 12 July 2012 for murder, involved another assault against a young male. The sentences imposed on him for the offences committed on 14 July 2010, for which he had been on parole since 13 March 2012, had not yet expired at the time he was taken into custody and were not due to expire until 13 July 2013.
The Crown submitted that I should at least partially accumulate the sentence for murder with these earlier sentences so as not to undermine the recognition of criminality of the more serious offence of murder. Ms Loukas submitted on behalf of the offender that there should be substantial concurrence.
There is no general rule that determines whether sentences ought be dealt with concurrently or consecutively. The principle of totality is an overriding principle by reference to which sentences are to be measured. It requires me to consider the total criminality involved, not only in the offence for which the offender is being sentenced, but also in any offences for which the offender has already been sentenced: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 308 per McHugh J.
I propose to allow for some degree of concurrence consistent with the principle of totality. I propose to commence the sentence for murder on 8 January 2013. I do not propose to adjust the ratio of the non-parole period to the total sentence to take account of the time spent in custody for other offences before that date.
Subjective circumstances
The matters concerning the offender's early life, which I am about to recount, come from the unchallenged evidence of the offender's mother, Charito Brilliantes.
The offender was born in the Philippines. His father left his mother when he was one year old. In 1997, when he was seven, he came to Australia and lived with his grandmother, her partner and other relatives at a house in Hurstville. Mrs Brilliantes came to Australia herself a few months later and went to live in the family home. The following year, Mrs Brilliantes had a daughter, of whom the offender became very fond.
In 2000, the offender's grandmother separated from her partner and moved away from the Hurstville house, leaving the offender there with his step-grandfather for a few months. In the same year, Mrs Brilliantes met her current partner. She became pregnant the following year. Friction developed between her new partner and the offender as a result of which the offender was no longer welcome to live with his mother.
The offender was passed from relative to relative. From the ages of 10 until 16 he was always on the move between different houses and different schools. He wanted to live with his mother. When she made it clear that this was impossible, he became aggressive and began stealing. Some of his prior offending is referred to above. He left school at 15. He has never done any paid work.
Although Mrs Brilliantes telephoned the offender regularly and saw him from time to time, he told her that he felt that he had no family in Australia. The offender now has four half-sisters, all of whom live with their mother.
These matters are relevant to the sentence, although not to the objective seriousness of the offence. Justice demands that allowance be made for life's adversities, particularly when, as here, they have deprived the offender from a young age of any real opportunity in life.
The offender started using cannabis at the age of 13 and, in recent years, has smoked methamphetamine known as ice, when out of gaol, including at around the time of the murder. I accept Dr Nielssen's diagnosis, based on the offender's use of methamphetamine, that the offender suffers from substance abuse disorder. I also accept that he was affected by marijuana, ice and alcohol at the time of the offence. His drug-taking explains, at least in part, his impulsive and aggressive conduct but it is not a mitigating factor.
The offender was 21 years and 9 months at the date of the offence. Generally speaking in the case of a young offender, there is a limited role for general deterrence and the emphasis should be on rehabilitation, particularly where the offender's immaturity has contributed to the commission of the offence. However leniency should not be so readily afforded to the offender where, as here, the offence is one more commonly expected of an adult.
I accept that the offender feels a degree of remorse and regret for the consequences of his actions which is distinct from his feelings of self-pity and concern for himself.
He has completed two courses in gaol: a work place safety course and a barber hygiene course.
Special circumstances
It was submitted on behalf of the offender that there were special circumstances in that the offender required a greater opportunity than others to adapt to society on his release. I am not persuaded that there are special circumstances in the instant case. The non-parole period needs to be of sufficient length having regard to the factors referred to above, of which the most significant are the objective seriousness of the offence and the need to protect the public. The length of the overall sentence accommodates the desirability of having a parole period of some length to assist the offender to adjust to life in the community.
Loss of the deceased
The deceased's mother and sister read statements to the Court in which they told of the effect on them of the deceased's death. Such statements bear witness to the grief, pain and loss suffered by those who survive the deceased.
Under the law, the loss suffered by the deceased and his loved ones cannot be reflected by any sentence I impose. However, before I impose a sentence, I wish to pause to acknowledge the loss of Patrick Crowe to his mother and his sister and to the other members of his family and to his friends. I take this opportunity to extend my personal condolences to them. I hope that in some small way they feel some benefit in having their loss acknowledged in a public way.
Retribution is one of the many aspects of punishment and is particularly significant when a life has been taken. However, under laws that have been in existence for a long time now, the loss suffered by the deceased and his family cannot be reflected by any sentence I impose: R v Previtera (1997) 94 A Crim R 76 at 87-88 per Hunt CJ at CL.
Sentence
Christopher Brilliantes:
For the murder of Patrick Crowe, I sentence you to a term of imprisonment of 18 years, commencing on 8 January 2013, with non-parole period of 13 years and 6 months.
The earliest date on which you are eligible for release to parole is 8 July 2026.
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Decision last updated: 18 November 2013
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