Regina v Brewer

[2001] NSWSC 99

CITATION:	Regina v Brewer [2001] NSWSC 99
FILE NUMBER(S):	SC 70032/99
HEARING DATE(S):	26/04/00, 27/11/00, 28/11/00,29/11/00, 30/11/00, 09/02/01, 16/02/01
JUDGMENT DATE:	1 March 2001
PARTIES :	Crown Frederick Keith Brewer
JUDGMENT OF:	Bell J at 1

COUNSEL :	Mr L Grey - Crown Mr D Stewart - Accused
SOLICITORS:	SE O'Connor - Crown Ross Hill & Associates - Accused
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
DECISION:	Sentenced to 20 years and 6 months imprisonment. Non-parole period of 15 years and 4 months specified. Sentence is expressed to commence on 3 January 1999. First date eligible for consideration for release on parole 2 May 2014.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BELL J

70032/99 - REGINA v Frederick Keith BREWER

SENTENCE

1    HER HONOUR: On 27 November 2000 the prisoner was arraigned before me on an indictment charging him with the murder of Glen Reay at Kamarah on 2 January 1999. He entered a plea of not guilty and a jury was duly empanelled. On the fourth day of the trial the prisoner indicated that he wished to change his plea to one of guilty. In accordance with s 399A of the Crimes Act 1900 (as it then stood) I accepted the plea and discharged the jury from giving verdict in the matter. I found the accused guilty of the murder of Glen Reay and stood the matter over to 9 February 2001 for submissions on sentence.

2    On the evening of Saturday 2 January 1999 the prisoner together with his co-accused, Jeffrey Wayne Tucker, Richard Charles McNellee and Rodney Joel Dalley, made arrangements to lure the deceased to the vicinity of a wheat silo by a railway siding just outside the village of Kamarah with a view to stealing a relatively small quantity of cannabis from him. The prisoner McNellee, who was not known to Reay, telephoned him and set up the meeting. The four who were variously armed with a machete, a knife and a pick handle planned to confront the deceased at this isolated meeting spot both to steal his drugs and to beat him up by way of a lesson. A short time earlier, the prisoner had purchased a deal of cannabis from the deceased through his co-accused, Jeffrey Tucker. He believed that at least half of the cannabis supplied on that occasion had been worthless. This incident appears to have supplied the motive for the scheme to teach the deceased a lesson.

3    The deceased drove to the meeting place in his Toyota Cressida. He was accompanied by a family friend, Frank Cosson. Prior to his arrival at the scene, the prisoner and his three compatriots had taken up positions in the vicinity of the wheat silo.

4    Mr Cosson gave evidence at the trial. He said that once he and the deceased arrived at the scene a man had got into the back seat of the Cressida and asked to inspect the cannabis. It is common ground that this man was the prisoner Richard McNellee. After looking at the cannabis McNellee alighted from the vehicle saying that he would go and get his money. Shortly thereafter Mr Cosson heard a whistle and there followed a furious attack upon the Cressida. The driver’s front window was smashed and a young man with blonde hair dived through the window. That young man became involved in a struggle with the deceased. McNellee got into the back seat of the vehicle with a machete. The prisoner, Tucker, stood on the passenger side of the vehicle holding a knife and a pick handle. Mr Cosson said that four men were involved in the attack. He saw a pair of hands come in through the driver’s side window and take hold of the ignition key at a time when the blonde headed young man was still partially inside the cabin struggling with the deceased. That young man was making gestures consistent with stabbing the deceased in his side. The deceased told Mr Cosson that he had been “stuck”. Mr Cosson put his arm across the front of the deceased and felt a wet and sticky substance. I will refer to this episode as the first phase of the attack.

5    The deceased started the vehicle and attempted to drive away. By this stage McNellee had alighted from the car. The young blonde headed man levered himself out of the vehicle. The vehicle stalled. It was started again and the deceased commenced to drive off. One of the attackers put his hands through the driver’s window and grabbed hold of the steering wheel pulling the car towards an embankment. The vehicle ended up lodged on the embankment where it came to a halt.

6    Mr Cosson looked over to the deceased and saw that he had sunk well down in his seat and was starting to slump over. He appeared to be losing energy such that he was “almost lifeless”. The deceased looked at Mr Cosson and nodded his head backwards saying the words “houses” and “you go”. As Mr Cosson was about to get out of the car he saw the deceased open the driver’s side door. Mr Cosson got out of the car and ran generally in the direction of the township of Kamarah. He heard the sounds of people pursuing him calling out “stop him” and “kill him”.

7    The deceased’s body was found some distance from the Toyota Cressida. Ambulance Officer Devlin, in a statement dated 12 January 1999, gave an account of the appearance of the body when he saw it at around 10.50 pm that evening. The deceased was lying on the ground on the silo side of the railway close to the tracks. The body was lying on its back with the legs together and straight. The arms were across the chest. Mr Devlin observed a build up of dirt around the thongs worn by the deceased, especially between the soles of the feet and the heel of the thongs. The ground directly in front of the feet appeared to have been flattened for about a metre. Officer Devlin considered the deceased’s position to be an unnatural one. An examination of the photographs of the body in situ supports that view.

8    Dr Botterill conducted the post mortem examination. His findings included (i) that the deceased had suffered a stab wound to the left side of the chest, which pierced the lung and allowed blood to surround the lung (ii) a stab wound behind the right shoulder which cut into the artery to the right arm and allowed bleeding into the adjacent tissues (iii) a stab wound behind the right calf which allowed bleeding into the muscles surrounding the artery in the right calf, and (iv) a number of other stab wounds to the face, torso and limbs. In all, Dr Botterill observed twenty one stab and incised wounds. The attack upon the deceased was plainly one of considerable ferocity.

9    Mr Cosson made good his escape and summonsed help. Police and ambulance officers were on the scene within a short interval. Inquiries rapidly led police to premises at 5 Train Street, Kamarah. These were premises at which the prisoner lived with his father, his co-accused Jeffrey Tucker, and his fiance, Beth Dendtler. Rodney Dalley and Richard McNellee were also staying at the premises at this time.

10    Following the attack on the deceased the offenders made attempts to wash their clothing and to hide the weapons in various locations at the Train Street premises. At 9.40 am on Sunday 3 January 1999 police executed a search warrant at those premises. Each of the four offenders was arrested. The McNellee co-operated with police from the outset taking them around the house and yard pointing out where the weapons had been hidden.

11    The prisoner was interviewed at the premises by Detectives Kreuzer and Blanchard. That interview was recorded on a hand-held tape recorder. The prisoner made some admissions during that interview. I propose to briefly outline the circumstances in which those admissions were made.

12    In the course of evidence given during a voir dire hearing at the trial, the prisoner said that he had felt uncomfortable when he saw McNellee standing near a pole pointing at him. The black handled knife (which the prisoner admitted to having handled) was concealed inside that pole. The prisoner agreed that he had wanted to give his account to the police “I wanted to tell them that I didn’t have to do with that knife, I dropped it down there but I didn’t use it”.

13    In the course of this initial interview, consistent with the evidence I have summarised, the prisoner told police that he had dropped the knife down the big metal pole. He denied stabbing the deceased. He gave an account that the prisoners McNellee, Tucker and Dalley had been trying to ring the deceased for a few hours. He did not know what arrangement had been made. He was told to come over with them. When he asked “why?” they had said “We’re just getting some smoke, just wanna make sure nothing goes wrong”. The prisoner told police he had not wanted to be part of it, but had agreed to go over.

14    He gave an account of the deceased’s car pulling up at the scene and of the man McNellee getting into the car. He had seen a scuffle take place at the car. He did not admit to any involvement in that incident.

15    Significantly, having regard to a submission advanced on the prisoner’s behalf concerning some admissions he was later to make, it is to be noted that in this initial interview the prisoner said that he thought that Rodney Dalley had been in possession of the machete. In the course of the initial interview, the prisoner agreed that he had gone over to the vicinity of the railway siding with the intention of “ripping off” the deceased. He was aware that at least some of his associates were armed. The prisoner said that Jeffrey Tucker had purchased an ounce of cannabis from Reay about three weeks earlier and that half of it was of no value. The prisoner was aware that they were proposing to take Reay’s drugs without giving him money for it.

16    The prisoner participated in an electronically recorded interview at the Griffith Detectives’ office on the evening of 3 January 1999. During the early stages of that interview the prisoner maintained an account broadly consistent with that which he had given Detectives Kreuzer and Blanchard at the Train Street premises. Towards the conclusion of the interview the prisoner volunteered:

“OK … I got, I might as well tell you. I, I stabbed the cunt.
Q.378 Well, why didn’t you tell us that?
A. Because I’m trying to cover myself up. I don’t know, I think he had a gun and he was going to shoot me.
Q.379 Well, tell us the truth. How many times did you stick him with the knife?
A. I don’t know, about four or five times.
Q.380 And why did you do it?
A. Because I thought, as he got out of the car he was like this, he was gettin’ out of the car and he was going like this with his hand and I thought he had a revolver, a gun or something and he was trying to load it and shoot me.
Q.381 But he didn’t have a gun, did he?
A. I don’t know.
Q.382 So what did you do?
A. So I stabbed him.
Q.383 How did you stab him? Describe how you stabbed him?
A. I just went bang, bang, bang, bang, and then he said, “Oh well I’m fucked” and I pushed him over took his drugs and went home.”

17    It is to be noted that in the course of his evidence before me the prisoner did not seek to maintain that he had thought that the deceased had a revolver as he got out of the car. He said that in the back of his mind he had been thinking that maybe the deceased was armed with some type of weapon. I did not believe him.

18    A little later in the course of the interview, the prisoner gave an account that he had stabbed the deceased probably about four times in the leg and three times in the chest. The stabbing in the leg took place during the first phase of the incident before the Toyota Cressida had moved from its original position. When asked how the prisoner had managed to stab the deceased in the leg he replied that the deceased had put his leg out the window, kicking at him or something and that he had grabbed the leg and stabbed it a couple of times. When asked if he had actually held the deceased’s leg, the prisoner responded, “Oh, I don’t know if I held his leg or if I, I just” and the answer trailed off.

19    In the course of the electronically recorded interview, the prisoner maintained that he had not expected the deceased to die and that he had hoped he was just going to go home. He also told police:

“I didn’t think the knife had actually, I didn’t know if the knife had been in deep, if it was penetrating, if it was hitting bones. I was hoping that he had just got a couple of friggin’ minor wounds and just teach him a lesson”.

20    The prisoner McNellee pleaded guilty at the first opportunity following his arraignment in this court. The prisoner, together with Tucker and Dalley, was charged in an indictment presented before me on 26 April 2000. On that occasion a witness critical both to the Crown and the defence was not available. The Crown and the defence both sought a separate trial for the prisoner. I acceded to that request. The trial of Tucker and Dalley proceeded and they were both convicted of murder on 11 May 2000. On 8 December 2000 I sentenced McNellee, Tucker and Dalley.

21    The Crown case against the three co-accused was conducted upon the basis that each was a party to a joint criminal enterprise, namely the armed robbery of Mr Reay, and that each had contemplated the intentional infliction of grievous bodily harm upon him as a possible incident of the carrying out of that enterprise.

22    The Crown case against the prisoner Brewer, was that he had stabbed the deceased on more than one occasion thereby causing (in the sense of significantly contributing to) his death and at the time of so doing, that he intended thereby either to kill or to do grievous bodily harm. In the alternative the Crown relied on common purpose murder.

23    For the purpose of sentencing I have been invited by the Crown to approach the matter upon the basis that I would be satisfied beyond reasonable doubt that at the time the prisoner stabbed the deceased he intended to kill him. On the prisoner’s behalf it was submitted that I would not be so satisfied. Mr Stewart realistically conceded that the prisoner’s admission as to having stabbed the deceased on more than one occasion made it appropriate to distinguish the objective seriousness of his offending from that of the three co-offenders. I was not satisfied beyond reasonable doubt that any of the co-offenders inflicted any injury upon the deceased.

24    The prisoner gave evidence at the sentence hearing. It was his account that his admission to stabbing the deceased in the leg during the first phase of the attack was not truthful. He said that Rodney Dalley had stabbed the deceased at this time and that he, Brewer, was simply seeking to protect Dalley. He said that by the time he made this admission he had already admitted to stabbing the deceased in the second phase of the attack. In this context he saw no harm in taking the blame for the earlier assault and, generally, he was protective of Dalley who was like a younger brother to him.

25    I did not accept the prisoner’s evidence concerning the circumstances of the offence as being either truthful or complete. I do not accept that he falsely confessed to stabbing the deceased during the first phase of the attack. I note that the prisoner had from the outset been prepared to nominate Rodney Dalley as the person who was in possession of the machete. In the course of his later video recorded interview he identified the black handled knife, which he knew to have been used in the assault, as belonging to Dalley. He gave an account that Dalley and McNellee had been scuffling with the deceased in the car during the first phase of the assault (Q.328). None of this impresses me as consistent with a view that the prisoner was motivated to shield Dalley from suspicion of involvement in the assault upon the deceased.

26    Mr Stewart submitted that despite my reservations about the prisoner’s evidence I would accept his account that it was not he who stabbed the deceased in the leg since his version of this part of the attack was implausible. Mr Cosson, it was submitted, did not see the deceased kick his leg out of the car in the way the prisoner described during the video recorded interview.

27    Mr Cosson said that the deceased called out “I’ll get you” and that he uttered a name commencing with the letter “B”. This was said at the time the driver’s window was smashed. This was just before the young blond headed man dived through the window. The prisoner was the only one of the four whose name began with the letter “B”. While I cannot be satisfied beyond reasonable doubt that it was the prisoner who dived into the vehicle and who was seen by Mr Cosson to be making stabbing gestures towards the deceased, I am satisfied beyond reasonable doubt that during the initial phase of the attack the prisoner was present in the near vicinity of the deceased. I see no reason not to accept his admission as to having stabbed the deceased in the leg on more than one occasion. It is neither inherently implausible or in any sense inconsistent with the other evidence.

28    I am satisfied beyond reasonable doubt that when Glen Reay alighted from the Cressida after it had come to a halt by the embankment, he was already significantly weakened by virtue of stab injuries inflicted upon him during the first phase of the attack. I accept Mr Cosson’s account that the deceased’s energy appeared to be sapping. It is in this context that I deal with the prisoner’s admission that he stabbed the deceased on several occasions after he alighted from the vehicle.

29    In the course of the interview when asked how many times he had stabbed the deceased, the prisoner replied “About four or five times” (A.379). This was a reference to the second phase of the assault (after the Cressida came to a halt by the embankment). In evidence before me the prisoner was asked if he recalled how many times he had stabbed the deceased and he said “No I don’t. I’m not sure, three or four times” (T.21). He went on to say “I remember stabbing him a few times, I’m not sure if it was three times, it may be more, it might not have been, I can’t tell you” (T.22). When asked what part of the body he had stabbed he said “I think a couple of times in the stomach and once in the arm or something like that, I’m not too sure”. He also said “I can remember hitting him a couple of times in the side or in the stomach area and I can remember him putting his arm up or something like that and I may have hit him in the arm or somewhere in that region”.

30    The prisoner denied that it had been his intention to kill the deceased. I do not accept that evidence. In the course of his evidence, the prisoner was asked whether at the time he stabbed the deceased he had observed that he was already suffering from any stab wounds. He said it was hard to say because it was dark. He went on to say this:

“When he got out of the car he didn’t look too healthy. Like he was, I don’t know, he didn’t look full of energy or anything, so. I think it might be, it might have come to me that he might have been stabbed but, like, this all took place in a short amount of time (T.22)”.

31    I consider the prisoner’s admission to stabbing the deceased on several occasions (at least twice in the region of the stomach) with the black handled knife at a time when it was apparent that the deceased was already injured bespeaks an intention to kill. This view is reinforced by the prisoner’s answer to Q383 in the ERISP. I approach the matter of sentence upon the basis that I am satisfied beyond reasonable doubt that at the time the prisoner stabbed the deceased during the second phase of the attack he intended to kill him. I am not satisfied beyond reasonable doubt that the prisoner went to the vicinity of the railway siding that night with that intention.

32    A report prepared by Ms Duffy, psychologist, dated 1 February 2001 was tendered on the prisoner’s behalf on the sentence hearing. In that report Ms Duffy outlines the history given to her by the prisoner concerning the incident. She set out this account:

“When discussing this later, Fred said they had no intention of killing him, but had wanted to “teach him a lesson” for selling such inferior cannabis to them. He said the idea had been to bash him up, take the drugs that he was going to sell to Richard and that would be his lesson. He did admit that he was very angry with Glen at the time, as were his co-offenders, and they were all extremely intoxicated with cannabis that they had smoked for days prior to the offence”. (p.7)

33    In his evidence before me, the prisoner sought to resile somewhat from this account of the venture. He maintained that it had been his understanding that the man McNellee was to get into the deceased’s car and obtain the drugs. The only purpose of the others being armed and present at the scene was in case Mr Reay got out of the car and gave chase. When pressed on the matter he maintained that there had been no plan to teach the deceased a lesson by beating him up and that it was only if the deceased pursued them that he would have been bashed to teach him a lesson. The prisoner said this was the account he had given Ms Duffy. I do not accept that. I consider that Ms Duffy’s report fairly summarises that which the prisoner told her and that when he came to give evidence he chose to paint a more favourable picture of the enterprise. As I have noted I was not impressed with the prisoner’s evidence concerning the offence. He put forward an account that he had been something of a reluctant party in going over to the railway siding that night. To my mind that stands in the face of the evidence.

34    The prisoner was the person who arranged for the purchase of the original deal of cannabis from the deceased which proved to be bad. I think he was truthful when he told Ms Duffy that he was very angry with Mr Reay. In his ERISP the prisoner agreed with the proposition that “it was in fact your idea and that you planned to rip him off” (Q and A 290/291). I accept that to be the case.

35    I sentence the prisoner upon the basis that he was a prime mover in the plan to rob the deceased and to beat him up in order to teach him a lesson. In the event, during the course of the assault upon the deceased, the prisoner formed the intention of killing him and stabbed him on more than one occasion with that intention. These findings carry with them a view that the prisoner’s culpability for the murder of Glen Reay is of a greater order than that of his co-offenders.

36    The prisoner is aged 24 years. Just following his 18th birthday he was convicted of two stealing offences before the Local Court at Leeton and in each case placed on a recognisance to be of good behaviour for 12 months. On 2 October 1995 he appeared before the District Court at Maroochydore where he was convicted of an offence described as “steal with actual violence whilst armed with an offence weapon and then use personal violence”. It appears this offence was committed in June 1995 at a time when he was subject to the bond imposed in the Local Court.

37    The prisoner’s background is helpfully summarised in Ms Duffy’s report. She noted that the prisoner’s parents separated when he was about four years of age. Both of his parents were described as alcoholic and the prisoner gave an account that he “grew up with violence all around me”. The prisoner suffered episodes of sexual abuse which are outlined in Ms Duffy’s report. I should note that the prisoner gave evidence concerning the unsatisfactory circumstances of his childhood and of the episodes of sexual abuse. I accept his evidence concerning these matters.

38    The prisoner had difficulties at school both with reading and writing. I note that Ms Duffy assessed the prisoner’s general intelligence as falling within the lowest five percent of population norms. The result was consistent both with the prisoner’s presentation and with the history he gave concerning his education and his employment.

39    The prisoner’s employment history as related to Ms Duffy is outlined at pages 3 and 4 of her report. Since leaving school he has held down jobs on occasions for several months. In the course of his evidence, and in his discussions with Ms Duffy, he gave a detailed account of employment in a timber yard. He had left this employ following a dispute brought on by his belief that he was being ripped off over his wages. The prisoner’s continuing concern about this matter seemed to me, consistent with Ms Duffy’s observations relating to his personality features. Ms Duffy notes that “Across the measures of more severe personality pathology, he revealed high elevations on measures of paranoid and borderline features”. (p.8)

She went on to observe:

“The paranoid features of the profile reflect ongoing suspiciousness and defensiveness. He may be constantly vigilant to criticism and deception and even innocuous events can be perceived as insults or the workings of a world where others are continually trying to “get at him”. The passive/aggressive aspect of his personality reinforces his resentment and discontent characteristics which may be expressed as intense feelings of jealousy or claims that he is cheated and misunderstood”.

40    The prisoner reports both alcohol and cannabis dependence. His alcoholism appears to have begun in his early teens. Ms Duffy notes that his later cannabis dependence may have been used as a means of avoiding the painful memories of his past, including the physical and sexual abuse to which he had been subject.

41    The prisoner claims to have been affected by cannabis at the time of the killing. I accept that he may have been affected to some degree by this drug however I see no basis for treating this as a circumstance of mitigation.

42 The prisoner’s childhood was characterised by rejection, abuse and violence. This provides some context for his subsequent criminal behaviour. Ms Duffy’s report does not, to my mind, engender a great deal of optimism concerning his prospects of rehabilitation. However, she is of the view that he may benefit from formal programs designed to assist him develop greater control over his impulses and to learn more effective means of communication. In his evidence the prisoner spoke warmly of his relationship with his girlfriend, Beth Dendtler. He appears to have maintained this relationship for some period of time and to be committed to it. He also described in positive terms recent attempts to re-establish a relationship with his mother. I accept that the prisoner has some prospects of rehabilitation, however, I am not of the view that the evidence discloses special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 such as to justify a departure from the statutory proportion as between the sentence and the non parole period.

43    The length of the sentence which I must necessarily impose upon him will produce a long period during which he will be subject to supervision in the event of his release on parole.

44    I was invited to sentence the prisoner upon an acceptance that he has evidenced remorse for his conduct. He gave evidence in those terms. I was not able to accept him as demonstrating wholehearted remorse for his conduct since I considered that his evidence relating to the offence was selective and in some respects plainly untruthful. However, having regard to the contents of Ms Duffy’s report and, in particular, to the contents of the reference prepared by Captain Carter, the Anglican Chaplain at the MRRC, I am inclined to accept that the prisoner does feel some real remorse for his terrible crime.

45    As I have noted, the prisoner pleaded guilty during the course of his trial. This followed a voir dire hearing concerning the admissibility of the interview between the prisoner and Detective Senior Constable Littame. At the conclusion of that hearing I ruled that I would admit that interview subject to a number of passages which were to be excised from it. The prisoner thereupon signified his intention of pleading guilty. At this stage in the trial Mr Cosson had given evidence and been cross-examined.

46    The prisoner’s plea of guilty came very late in the day in the face of a strong Crown case. In this latter regard, I note that the admissions made in the course of the initial interview with Detectives Kreuzer and Blanchard were not the subject of any challenge.

47    Nonetheless, the prisoner should receive some credit for his belated plea of guilty. I propose to reduce the sentence which I would otherwise have imposed on him by six months to reflect the utilitarian considerations, which attach to a plea of guilty entered on the fourth day of a trial (which in my estimate would otherwise have run for three weeks). I have included in this discount such limited credit to which I consider he is entitled for his prompt but selective admissions made to detectives Kreuzer and Blanchard.

48    Frederick Keith Brewer I sentence you to 20 years and 6 months imprisonment. I specify a non-parole period of 15 years and 4 months. The sentence is expressed to commence on 3 January 1999. The first date on which you will be eligible for consideration for release on parole is 2 May 2014.

*****

Last Modified: 03/09/2001