R v Hall

[1999] NSWSC 631

CITATION:	R v Hall [1999] NSWSC 631
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	70047/97
HEARING DATE(S):	01/06/99-04/06/99,07/06/99-11/06/99,15/06/99-16/06/99; 24/06/99
JUDGMENT DATE:	5 July 1999
PARTIES :	Regina Brian Morgan Hall
JUDGMENT OF:	Hidden J at 1

COUNSEL :	Barry Newport QC (Crown) Tom Molomby (Hall)
SOLICITORS:	DPP (Crown) Legal Aid Commission (Hall)
CATCHWORDS:	Sentencing - murder (1); malicious wounding with intent to cause grievous bodily harm (1); maliciously inflict grievous bodily harm with intent to cause grievous bodily harm (2).
CASES CITED:	R v Previtera (1997) 94 A CrimR 76 R v Coleman (1990) 47 A CrimR 306 Pearce v The Queen (1998) 72 ALJR 1416
DECISION:	Sentences aggregating 20 years; minimum term 15 years, additional term 5 years.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

No: 70047/97

HIDDEN J

Monday 5 July 1999

Brian Morgan Hall

Remarks on Sentence

1     HIS HONOUR: The prisoner, Brian Morgan Hall, has been found guilty by a jury of a number of serious charges arising from an incident in Roseby Street, Drummoyne on Sunday 15 December 1996. Those charges are the murder of Brooke Webber, maliciously wounding Marc Webber with intent to do grievous bodily harm, maliciously inflicting grievous bodily harm upon Marc Webber with intent to do grievous bodily harm and maliciously inflicting grievous bodily harm upon Wayne Piper with intent to do grievous bodily harm.

Facts

2     In the early evening of that Sunday, the prisoner arrived at Birkenhead Point after an outing on a boat. He and a friend, John Sternbeck, went to the Birkenhead Tavern in Roseby Street, where they remained until the establishment closed at about 10pm. A number of patrons at the tavern left at the same time as they did. Among them were Marc Webber, his sister, Brooke Webber and their friend, Wayne Piper. By this time the prisoner had had far too much to drink.

3     He and Mr Sternbeck went to the prisoner’s car, which was parked at a multi-storey car park next to the tavern. He drove the car over a low barrier separating the car park from the footpath, across the footpath and onto the road. This led to some derisory remarks by patrons of the tavern who were in the vicinity, to which the prisoner responded with insults of some kind. Marc Webber invited him to repeat those insults outside the car. The prisoner alighted, and there was a violent exchange between him and Marc Webber. Marc Webber got the better of the prisoner, the two men were separated and the prisoner got back into the car. Marc Webber punched him through the driver’s window and somebody, possibly Marc Webber himself, kicked the car. The prisoner drove off, shouting words which could be construed as threats to people in the area.

4     He drove in the direction of Victoria Road, but at the next intersection in Roseby Street he did a U-turn and drove back towards the spot where the altercation had taken place. The car struck Marc Webber and Wayne Piper, who were standing together towards the middle of the roadway. This gave rise to the charges of maliciously wounding Marc Webber with intent to do grievous bodily harm and maliciously inflicting grievous bodily harm upon Wayne Piper with intent to do grievous bodily harm. He then continued on to the bottom of Roseby Street, which formed a cul-de-sac.

5     Some people went to the aid of Wayne Piper, who had been thrown some metres by the impact, and removed him to the side of the road. Marc Webber was also thrown into the air by the impact, falling to the ground roughly where he had been standing. His sister, Brooke Webber went to his aid, as did Paul Allen, who did not know either of them. Mr Allen began to lift Marc Webber in an attempt to remove him from the middle of the road.

6     In the meantime, the prisoner had reached the bottom of Roseby Street, where he turned and drove back up the street. On this occasion the vehicle struck Brooke Webber, Paul Allen and, for a second time, Marc Webber. Fortunately, Mr Allen was not seriously injured. However, Brooke Webber was thrown to the side of the roadway and suffered injuries from which she died a week later in Royal Prince Alfred Hospital. This second impact gave rise to the charges of the murder of Brooke Webber and of maliciously inflicting grievous bodily harm upon Marc Webber with intent to do grievous bodily harm.

7     The jury acquitted the prisoner of charges of wounding Marc Webber with intent to murder, and causing him grievous bodily harm with intent to murder, arising from both impacts, and causing grievous bodily harm to Wayne Piper with intent to murder, arising from the first impact. Clearly, then, they found that his intention at the time of both impacts was to cause grievous bodily harm to someone. This, of course, was sufficient to establish the charge of murder.

8     It was not necessary for the jury to find that his intent was directed specifically at Brooke Webber, Marc Webber, Wayne Piper, or any of them. I do not think that it was. I think it more likely that he drove his car towards people at random, motivated by feelings of anger and humiliation engendered by what he saw as the behaviour of the group as a whole or, at least, the men among them. In an electronically recorded interview with police some hours after the event, it appears to have been his recollection that he had been set upon by a number of men (Q21 & Q51). Asked why he did a U-turn and drove back to the scene of the altercation, he answered, “I suppose it was out of anger just ’cause I had the shit kicked out of me and I just wanted to get ’em back, I suppose.” (Q150)

9     In the interview the prisoner said that he had slowed down “a little bit” before the second impact (Q41 & Q77). This is consistent with the observation of a number of eye witnesses that he appeared to apply his brakes immediately before the impact, and it tends to confirm the view I have expressed about his intention. His anger would have been directed at the males in the group and it may well be that he attempted, albeit far too late, to avoid hitting Brooke Webber. Of course, that would in no way absolve him of responsibility for the murder, as an intention at that time to inflict grievous bodily harm upon anyone is sufficient.

10     None of this is to deny the gravity of this criminal conduct. A young woman is dead and two young men have been seriously injured. I received in evidence a Victim Impact Statement by Mrs Carol Webber, the mother of Brooke and Marc, which speaks movingly of the effect upon her and other members of the family of this tragic incident. The Court is conscious of the serious and enduring effects of the premature and senseless death of a loved one, and expresses its sympathy to Mrs Webber and the family in their tragic loss. It is important that the members of the family have the opportunity to express their feelings in these sentence proceedings, although it is well established that it is inappropriate for me to have regard to Mrs Webber’s statement in determining the sentence to be passed: R v Previtera (1997) 94 A CrimR 76 at 84ff.

11     Equally, the Court acknowledges the seriousness of the injuries suffered by Marc Webber and Wayne Piper. From the first impact Marc Webber sustained lacerations to his face and other parts of his body, which have left him with permanent scarring. From the second impact he suffered serious abdominal injuries, which required surgery. Wayne Piper’s injuries were primarily to his knees, requiring a number of surgical procedures. He still has to undergo physiotherapy and is significantly restricted in his activities, both at work and at leisure. He has set out the effect of his injuries in a Victim Impact Statement, which I have considered, but it is unnecessary to look beyond the evidence at the trial to assess the gravity of the crime perpetrated against him.

12     As I have said, the prisoner was well affected by liquor. A breath analysis reading later obtained by police was interpreted by Dr Judith Perl, pharmacologist, as establishing that his blood alcohol level at the relevant time was in the order of 0.170. I have referred to his electronically recorded interview with police, during which there appear to have been significant gaps in his memory of what occurred. In the sentence proceedings he gave evidence, which I accept, that what he told police then was his best recollection and that it has not improved since. That, of course, is not inconsistent with the jury’s finding about his state of mind at the time he was driving, but it is another pointer to his level of intoxication. That intoxication in no way excuses his behaviour, but it does provide some explanation for conduct which, on the evidence, is entirely uncharacteristic of him: R v Coleman (1990) 47 A CrimR 306 at 327.

13     His patchy memory is significant for another reason. I accept that he has no clear recall of what was going through his mind when he was driving, other than that he was feeling angry. It is understandable, then, that he pleaded not guilty to the charges involving a mental element, so as to put the Crown to proof of that element. The only other matter that was not conceded was whether Marc Webber had suffered grievous bodily harm as a result of the first impact, which led to his pleading not guilty to an alternative charge of dangerous driving occasioning grievous bodily harm arising from that impact. No issue was taken with any other matter which the Crown had to prove. As a result the trial was conducted very responsibly by counsel on both sides, focussing on the prisoner’s intent or state of mind. This must have reduced the distress which the trial would inevitably have caused to the surviving victims, their families and the large number of eyewitnesses who gave evidence. The prisoner expressed his remorse in evidence before me, as he had to Dr William Lucas, psychiatrist, whose report I received in the sentence proceedings. I accept it as genuine and, in the circumstances, its sincerity is not undermined by the fact that the matter went to trial. It is consistent with his demeanour throughout the trial. He sat through the entire proceedings with his head bowed, raising it only when I had occasion to address him.

Subjective case

14     The prisoner is a single man who was twenty-two years old at the time of the incident, and is now twenty-four. He had the benefit of a sound upbringing and his family remains supportive of him. He was educated to Year 10 standard, and acquired a creditable work record as a panel beater thereafter. Although he drank heavily at times and used illicit drugs on occasions, Dr Lucas did not detect in his history any significant pattern of drug or alcohol abuse.

15     Character evidence was called in his case at the trial. In addition, in the sentence proceedings I received into evidence a large number of testimonials from people who could attest to his character and his reliability as a worker. Like the witnesses in the trial, many of the authors of these testimonials are mature people who have known the prisoner since he was a child. The effect of this material is that he has been held in the highest regard. He is described as well-behaved, courteous, generous, industrious and trustworthy. In particular, he is said to be a gentle person who, despite his considerable size, has never been observed to act aggressively.

16     One can but wonder, then, how a young man of his character could have embarked upon such a dreadful criminal enterprise. Dr Lucas did not find him to have been suffering from any psychiatric illness or personality disorder. No doubt, the altercation which triggered the incident angered him, but this uncharacteristic behaviour must be attributed primarily to the disinhibiting effects of alcohol. This was the view of Dr Lucas, which I share.

Sentence

17     After his arrest on 15 December 1996 the prisoner remained in custody for a little over a month, when he was released on bail. The bail conditions, which he observed for over two years thereafter, were quite onerous, involving a curfew, twice daily reporting to police, and embargoes upon driving a car and entering licensed premises. His counsel submitted that, for that reason, I should date his sentence from the day of his arrest but, given the length of time he was on bail, I do not think that that is appropriate. I shall recognise the period he spent in custody and the restrictions on his liberty while on bail by deducting six months from the minimum term which I propose.

18     I think it appropriate that I should reflect the whole of the prisoner’s criminality in the sentence for the murder, passing concurrent sentences for the other offences. I consider this to be in conformity with the principles enunciated in Pearce v The Queen (1998) 72 ALJR 1416, and the difficulty with which the High Court was dealing in that case does not arise here. I approach the matter on the basis that this incident would have taken no more than a matter of minutes, although the fact remains that the prisoner drove his car into people on the roadway not once, but twice.

19     Counsel for the prisoner submitted that I should find special circumstances, so as to depart from the normal proportion between minimum and additional terms. For the reasons I have given, I do propose to deduct six months from the minimum term. However, I do not consider that any purpose would be served by a greater departure from the statutory ratio. The global sentence I have in mind is necessarily lengthy, and the additional term produced by the application of that ratio will be more than sufficient to encourage the prisoner’s rehabilitation.

20     Sentencing a young man for crimes as serious as this is never an easy task, and I have found this a particularly difficult exercise. The sentence I impose must reflect the gravity of the prisoner’s criminal conduct and the need for deterrence, while recognising his youth, his general good character and the community’s interest in his rehabilitation. He has asked that I take into account on a Form 1 three summary offences arising from the same incident: driving with the prescribed concentration of alcohol, unlicensed driving and failing to stop after an accident.

21     I have determined that the total sentence must be penal servitude for twenty years, comprising a minimum term of fifteen years and an additional term of five years. Six months will be deducted from that minimum term. All sentences will date from the day of the verdicts, 16 June 1999, when the prisoner was returned to custody.

22     Brian Morgan Hall, on the charge of murder, and taking into account the matters on the Form 1, you are sentenced to penal servitude for nineteen years and six months. That sentence will comprise a minimum term of fourteen years and six months, commencing on 16 June 1999 and expiring on 15 December 2013, and an additional term of five years, commencing on 16 December 2013 and expiring on 15 December 2018. On the charge of maliciously wounding with intent to do grievous bodily harm and on each of the charges of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, you are sentenced to concurrent fixed terms of penal servitude for ten years, each commencing on 16 June 1999.

23     You will be eligible for release on parole on 16 December 2013. Of course, the question of your release on parole is a matter for the Parole Board, not for me. Your sentence will expire in its entirety on 15 December 2018.

**********

Last Modified: