Regina v Dean Anthony Privett and Michael Privett

[1999] NSWSC 1076

CITATION:	Regina v Dean Anthony Privett and Michael Privett [1999] NSWSC 1076
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	70081/98; 70014/97
HEARING DATE(S):	8 October 1999
JUDGMENT DATE:	22 October 1999
PARTIES :	Regina v Dean Anthony Privett Michael Privett
JUDGMENT OF:	Badgery-Parker AJ at 1

COUNSEL :	Cr: Mr P Conlon D (Dean): Mr P Young D (Michael): Mr P Bodor QC
SOLICITORS:	Cr: Crown Solicitors Office, Wollongong D (Dean): Legal Aid Commission of NSW D (Michael): Brezniak Neil-Smith & Co, Sydney
CATCHWORDS:	CRIMINAL LAW - Sentence - Co-offenders convicted of murder - Sentencing rationale and principles to be applied - Measure of criminal responsibility of each offender - Circumstances of killing in remote rural area and with a firearm - Subjective factors - Existence of special circumstances - Effect of one prisoner labelled an "informer" on mitigation of sentence.
ACTS CITED:	Crimes Act 1900
CASES CITED:	Regina v Camilleri (8 February 1990, NSW Court of Criminal Appeal, unreported) Regina v Mills (3 April 1995, NSW Court of Criminal Appeal, unreported) Ibbs v The Queen (1987) 163 CLR 447
DECISION:	See paragraphs 36, 37 and 38 of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BADGERY-PARKER AJ

Friday, 22 October 1999

No: 70081/98 REGINA v Dean Anthony PRIVETT
No: 70014/97 REGINA v Michael PRIVETT

SENTENCING JUDGMENT

1    HIS HONOUR: On 3 August 1999 a jury found Dean Anthony Privett and Michael Privett guilty of the murder of Dr Peter Browne Rowland at Gundaroo on 25 June 1996. At their request, both were remanded for sentence to 8 October 1999; and at the conclusion of the sentencing proceedings on that day, I remanded them until today, in order to give the matter adequate consideration.

2    The sentencing process is founded on well established principles which for present purposes I can conveniently take from the judgment of Allen J (with whom Gleeson CJ and Finlay J agreed) in Regina v Camilleri (8 February 1990, NSW Court of Criminal Appeal, unreported):

In seeking to determine in any case the sentence appropriate to a particular crime it is always of importance to have regard to the gravity of the offence viewed objectively. Unless that is done the other facts requiring consideration in order to arrive at the proper sentence cannot be given their rightful place. A sentence imposed must be commensurate with the seriousness of the crime in the sense that it should, having regard to the all the proved circumstances, accord with the general moral sense of the community. It should also serve as a sufficient deterrent both to the offender and to others. The purpose of that deterrence is to prevent the commission of such offences, and whilst justice and humanity require that the previous character and conduct and the probable future life and conduct of the individual offender should be given most careful consideration, those are factors which are necessarily subsidiary to the main consideration which determines the appropriate amount of punishment, that is the protection of the public. The fundamental purpose of punishment is the protection of society. Unless those basic principles of sentencing are adhered to, errors will occur.

3    Although for the purpose of sentencing the jury's verdicts conclusively establish the guilt of each prisoner, those verdicts do not identify the “proved circumstances” adequately for the sentencing task. In particular, the verdicts do not reveal upon which of several available bases the guilt of each prisoner arose.

4    In those circumstances, the law imposes on me, as the sentencing judge, the task of determining the facts upon which I should act in imposing sentence, that is, of determining the basis and measure of the criminal responsibility of each prisoner respectively. In so doing, I must of course accept the jury's verdicts and must make no finding of fact which is not consistent with those verdicts.

5    It is important that I observe, and that those who listen to or read what I say today should clearly understand, that in sentencing I may proceed only on the basis of facts proved against each prisoner beyond reasonable doubt.

6    On the night of his death, Dr Rowland was at his property near Gundaroo. A house was in course of construction but not yet habitable. A shed on the property had been set up as a temporary residence, and in that shed Dr Rowland had gone to bed. He had a bedside light on; he may have been reading or he may have dozed off. He woke when his killer burst into the shed. He sat up, saying words to the effect, "What's going on?", and the killer fired a single shot from a twelve gauge shotgun which struck Dr Rowland in the face causing almost instant death. Four other shots were fired, two of which struck and killed Dr Rowland's large dog which was near the foot of the bed. The other two shots were evidently also fired at the dog, but missed.

7    Before I proceed to more specific findings of fact, I remind myself of the warning I gave to the jury as to the need for caution in acting upon the evidence of the witnesses Spencer and Teale, who were themselves criminally involved in that events of that evening, and the direction as to the need to scrutinise their evidence carefully. So too, I must be cautious about the evidence by either accused against the other, especially the evidence of Michael Privett implicating Dean as the gunman, contrary to his first assertion to police that it was he, not Dean, who killed their victim. I have given great weight to that warning and have scrutinised their evidence with great care. Having done so, I have concluded that I may act upon their evidence, as clearly the jury did, although to the extent that the evidence of Michael Privett was self-serving, attempting to minimise his own guilt, I do not accept it.

8    The evidence establishes that earlier that evening, Dean Privett arranged with one Gary Teale, that Teale should drive Privett to one or more rural properties for the purpose of stealing items of value including, if possible, one or more generators for which Dean had a potential buyer. They drove first to a property known as Yass Plains in Dogtrap Road, Yass. Entry to the property was blocked by a chained gate. They returned to Yass where Dean Privett borrowed some boltcutters. The two men then went to Dean Privett's home, and there Michael Privett and a fourth man Byron Spencer joined them in the car. They returned to Yass Plains, Dean cut the chain and opened the gate, and they entered the property and proceeded to a shed where all four men took an active part in collecting various tools, including some expensive power tools (but not a generator) and placing them in the boot of Teale's car. They transported those items back to Yass where they were secreted in the back yard of Dean Privett's home.

9    The vehicle was then driven from Dean Privett's home to Dr Rowland's property and in the minds of all who participated, the purpose of the trip was to find and steal a generator.

10    Dean Privett denies that he was in the vehicle on this second occasion, but the jury's verdicts imply their rejection of his evidence to that effect. In any event, independently of my duty to act consistently with the jury's verdicts, the evidence of Teale, Spencer and Michael Privett establishes to my satisfaction beyond reasonable doubt that Dean Privett was in the car and also, that he had with him in the car his twelve gauge shotgun and that, shortly before the vehicle arrived at Dr Rowland's property, Dean Privett loaded the weapon. The same evidence satisfies me that Dean Privett took the loaded gun with him when he got out of the car; that he was carrying it as he entered the shed after Michael Privett, at Dean's direction, kicked open the door; and that it was Dean Privett who fired the lethal shot.

11    The Crown submitted that it was open to me to be satisfied beyond reasonable doubt that the killing of Dr Rowland was premeditated by both accused, the subject of a prior agreement between them that, should they find Dr Rowland on the premises, he should be killed. There is some support for that in the evidence, but such a finding could only be made by inference and, especially in the absence of any credible evidence of a motive on the part of Dean Privett to kill, and given the slender nature of the evidence of motive on the part of Michael (namely, his assertion to police that the doctor was killed because of his homosexuality - which, it should be noted, is not evidence against Dean), the evidence is insufficient to discharge the onus of proof of premeditation against either prisoner.

12    However, the evidence does lead to a finding beyond reasonable doubt against each of the prisoner's that they entered the premises with a hostile intent. The matters which lead to that conclusion include the following.

13    It is clear, and neither of the prisoner's counsel disputed, that both men were, from the outset, parties to a joint criminal enterprise to break and enter the property, and steal. It is clear beyond doubt that, at least from the moment he left the car carrying the loaded gun, Dean Privett had the intention of using it in pursuance of their common objective, that is using it to subdue and overcome any opposition from any person in occupation of the shed. It is equally clear that before he commenced to kick open the door, Michael Privett knew that Dean was carrying the loaded gun. The evidence satisfies me of that, quite apart from the fact that a finding to the contrary would be inconsistent with the jury's verdicts.

14    There were obvious signs that the building was occupied (a light on, and a vehicle parked directly outside). Michael Privett denies having seen the light on. I reject that evidence, but such rejection does not, of course, prove that he saw the light or, if he did, that he inferred the presence of a human occupant. However, the manner of their entry into the shed is very telling: it comes primarily from the mouth of Michael Privett himself in his police interviews and his sworn evidence at the trial, with some support from the evidence of Spencer and the findings of the scene of crime officer, Detective Turnbull. I find that on arrival at the property but before they left the car, Dean Privett directed Michael to kick the door down. That is what occurred. Michael Privett kicked the door open, and Dean, armed with the shotgun, ran into the lighted room. That manner of entry clearly bespeaks a belief that the shed was occupied, or at the very least, anticipation on the part of both men of a real possibility that the shed was occupied. The evidence satisfies me beyond reasonable doubt that prior to the moment when Michael began his onslaught on the door, the scope of the mutually agreed enterprise had come to include the use of the firearm to overcome the resistance of any person who might be upon the premises - that is, the enterprise had become one of armed robbery.

15    All of the evidence satisfies me beyond reasonable doubt that before he began to attack the door, Michael contemplated that there was a substantial risk that in the course of their committing armed robbery, his brother might discharge the gun (which would suffice to render Michael Privett guilty of felony murder); but more, that he contemplated that there was a substantial risk that his brother would fire the gun at any person present in the shed with the intention of killing or inflicting grievous bodily harm. His evidence to the contrary is not credible. In so saying, I have not ignored the evidence of his extensive consumption of alcohol in the course of the day. However, in that regard I accept in preference to his sworn evidence his answer to question 287 in his first recorded interview:

Q: Where you intoxicated?
A: Some people would call me intoxicated but I wouldn't, I was still pretty coherent, I could understand everything.

Similarly, in respect of his possible affectation by drugs, I prefer his answers in that recorded interview, where he denied having used any drugs that day, to his subsequent self-serving accounts to the contrary.

16    I make that finding as to Michael Privett's contemplation because it appears to be warranted by the evidence; but I do so well aware that in terms of the ultimate sentence it may be of little consequence because, as the Court of Criminal Appeal pointed out in Regina v Mills (3 April 1995, unreported), felony murder is not necessarily to be regarded less seriously than murder done with the intention to kill.

17    I am satisfied that Dean Privett fired the shotgun at Dr Rowland with the intention of killing him. In the absence of any basis for a finding of premeditation, I do not find that that intention was formed before the time when the prisoner entered the shed, but that the intention existed at the time the shot was fired is a compelling inference from the fact the shot appears to have been an aimed shot, fired at a time when the muzzle of the gun was only some 100-180 millimetres (4-8 inches) from the victim's face, together with the fact that, before that shot was fired, Dr Rowland had raised himself from his pillow and spoken to the intruders.

18    I do not overlook Mr Young's submission that there is a theoretical possibility that the gun was fired in panic, not aimed; or that it was aimed away from the victim, but struck him by accident; that is, that there was no intention to kill so that the prisoners are guilty only on the basis of felony murder. Consistently with his denial of any involvement, it could hardly be expected that Dean Privett would give evidence that such is what occurred. The fact remains that, absent any such evidence, there is nothing to displace the obvious inference of an intention to kill.

19    I will briefly summarise my findings as to the objective circumstances of the killings and the objective criminality of each prisoner respectively. I find:

(1) that the killing was not premeditated;

(2) that what began as a joint enterprise to commit the crime of breaking, entering and stealing became a joint enterprise to commit either that crime or armed robbery as the circumstances dictated, that change occurring when the prisoners became aware of the possibility that the shed was occupied and Dean Privett took the loaded gun from the car to the shed.

20    As to Dean Privett I find further:

(3) that he intended to use the gun if necessary to subdue any person who was found in the premises and to overcome any opposition to their criminal purpose; and

(4) that in fact he fired the gun at Dr Rowland from close range with the intention of killing him.

21    As to Michael Privett I find further that he was alive to the substantial risk that, in the course of their joint criminal enterprise, Dean might discharge the shotgun and might do so with intent to kill.

22 Punishment for murder is prescribed by s19A of the Crimes Act 1900 which, as now relevant, provides as follows:

1 A person who commits the crime of murder is liable to penal servitude for life.
2 A person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person's natural life.
3 Nothing in this section affects the operation of s442 (which authorises the passing of a lesser sentence than penal servitude for life).

23    The imposition of the maximum penalty for any offence, including murder, is a sentencing option reserved for cases which can properly be characterised as falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-2. In the course of the sentencing proceedings the Crown prosecutor conceded that this does not fall into the worst category of case for which the maximum penalty might be appropriate. In my view, that concession was properly and responsibly made. Nevertheless, the objective circumstances are such that this crime must be treated as a very serious one indeed. It involved the prisoners entering on a criminal activity in a relatively remote rural area. The residents of such locations are particularly vulnerable to theft and crimes of violence, and sentences imposed by courts in respect of offences committed in those circumstances must necessarily give considerable weight to the need for deterrence in order to protect such persons so far as the courts can do. The crime involved the carrying of a loaded firearm in the course of the criminal enterprise. In the case of Mills referred to earlier the sentencing judge, Wood J, said:

The offence of murder involved is one of felony murder arising out of the use of a shotgun in the course of an armed robbery. The use of a firearm in the commission of any form of offence is a circumstance which always calls for a heavy sentence; particularly is that so where it leads to the death of an entirely innocent shop attendant who, in this case, offered not the slightest resistance to the prisoner.

Those words which were expressly endorsed in the Court of Criminal Appeal are obviously applicable in the present circumstances. The crime did not involve premeditated killings, but the decision to carry the loaded gun was clearly made at a time when both men were alive to the possibility that the premises were occupied. No doubt each was emboldened by the liquor he had taken, for which reason perhaps they chose to proceed with their plan to force entry into the premises, despite the possibility that it was occupied - but disinhibition by reason of intoxication does not mitigate the seriousness of their offence. Clearly Dean Privett was ready to use the gun as necessary to overcome resistance, and Michael Privett well knew of the risk that he would do so.

24    So far as objective criminality is concerned, I conclude that the case is of a most serious nature, though falling short of such a case as would attract a maximum penalty. As between the two prisoners, I regard the criminality of Dean Privett as the greater in that he was, as I find, the instigator of the whole criminal enterprise, and was the one who saw fit to bring the weapon, to load it and, eventually, tragically, to fire it.

25    I turn then to consider, so far as the evidence goes, the previous character and conduct and the probable future life and conduct of each of the prisoners.

26    Dean Privett was born on 27 August 1968. Thus, he was almost twenty-eight at the date of the murder and is thirty-one years of age. He was educated to School Certificate level at Yass High School and then undertook a twelve month farm business management course at Yanco.

27    His father was employed as the manager of a property at Yass and Dean was employed from time to time on that property and in a local timber mill until 1986 when he sustained head injuries in a motor vehicle accident. He made a good recovery although, according to his mother, he was thereafter "a little bit restless". In any event, he was able to return to farm work and then to work in the field of landscape gardening. More recently, he has developed his own business as a concreting contractor and landscape gardener. From about 1984 to 1997 he was in a relationship with a young woman by whom he had two children. He has since been in another relationship but remains supportive of his first partner and their children. His mother described him as good tempered, calm and non-violent although she acknowledged, of course, his conviction for an assault occasioning actual bodily harm which, she said, occurred in the course of a family argument between him and his sister. His counsel was able to place before the Court a substantial number of very favourable references which show him to have been a pleasant young man, hardworking, diligent and trustworthy, and which demonstrate that his involvement in crimes of dishonesty and in a crime of hideous violence was foreign to his character as known to those with whom he associated. None of those who provided testimonials seems to have been aware of his minor criminal record which reveals convictions at age twenty-four for high level PCA and unlicensed driving, and cultivation of cannabis. As well, there is the assault on his sister in 1994, and a minor conviction in July 1998 on a charging of remaining on enclosed lands. That record does him no credit but is of little significance in this sentencing process and knowledge of it would probably not have affected the opinion held of him by those who have provided testimonials. He is entitled to be described as a person of generally good character and as a person for whom criminal activity of the kind which took place on 25 June prior to the killing and involvement in the killing itself were completely out of character. I am unable to find in the evidence any satisfactory explanation for his conduct on this particular occasion.

28    The strength of the favourable character evidence (which, incidentally, was not adduced before the jury at the trial) points strongly towards a finding that Dean Privett is unlikely to offend again after his release and that, notwithstanding that he will necessarily be out of the community for very many years, the probability is that he will be able to rehabilitate himself and reinstate himself in the good regard of the community in a relatively short time after his release. It does not appear to me that there is anything in the circumstances of his case which requires the adjustment of the length of the additional term of his sentence to provide for a longer than usual period on parole.

29    In the course of the sentencing proceedings Dean Privett asked that I should take into account, in sentencing for the crime of murder, the offence of break, enter and steal at Yass Plains in respect of which for the purpose of this sentencing procedure he admitted his guilt. The necessary documentation having been prepared, I will take that matter into account in determining the sentence to be imposed upon Dean Privett.

30    I shall also take into account the fact that he was in custody in respect of the charge of murder from 29 June 1996 to 18 September 1996, a period of almost three months. On 22 October 1998 he appeared before the Supreme Court upon the return of an ex officio indictment in respect of this matter. Bail was refused and he has been in continuous custody since. It is appropriate therefore that the sentence that I impose should be expressed to commence on 22 October 1998.

31    Michael Privett was born on 28 June 1967 so that he is now thirty-two years of age and was twenty-nine years of age at the date of the murder. Michael Privett is the fifth child in the family of seven. He appears to have had a troubled childhood and many behavioural problems which severely strained the relationship with his parents and siblings and interfered with his education. He was several times sent away by his parents to live with one or other of his older brothers; he had a series of placements in boys' homes from time to time; and on many occasions when he was at home he ran away. In his early teens, he began to abuse drugs including marijuana, cocaine and heroin, and alcohol. He has worked from time to time in casual labouring positions but has no record of regular employment. He is, according to him, ostracised from his birth family and I accept that that is the case. He has a long criminal record which reflects his troubled childhood and his inability since childhood to fit into society. In particular the record reflects his drug- and alcohol-ridden lifestyle. Numerous appearances before the Children's Court led to detention orders being made on several occasions. His adult court appearances, although numerous, are in the main for offences which appear not to have been of great seriousness and relate to his drug and alcohol abuse. On two occasions he has been sentenced to terms of imprisonment, namely six months for break, enter and steal, a sentence imposed in early 1998, and a further sentence of three months in respect of a conviction for failure to appear which was served between 28 April 1999 and 27 July 1999.

32    About a year ago Michael Privett entered into a relationship with one Cindy Ray who is the mother of four children from a previous relationship and a son, of whom Michael is the father, born in July this year during the course of the trial. Material placed before me from Ms Cindy Ray and from some of her older children satisfies me that the relationship between her and Michael Privett is a genuine relationship valued by both parties and a relationship which, despite his inevitable lengthy imprisonment, she wishes to continue.

33    Since the jury's verdicts, the prisoner has undergone a clinical psychological assessment carried out by Professor Susan Hayes whose report is before me. Her opinion, based both on her interview with him and on the results of various psychometric tests which she administered, is that he is in the borderline category of intellectual ability, functioning overall at a level lower than ninety-four per cent of the population, and that his intellectual deficits may possibility be due in part to minor brain damage possibly related to drug and alcohol abuse. Certainly she sees substance abuse as his main problem in the past and in the future in terms of his ability to rehabilitate himself into the community following his release from prison. In that regard she is able to point to a number of positives. While in prison he has commenced an agriculture course which he says he is enjoying. He has been prescribed spectacles six months ago and that has made a dramatic change in his ability to read and to write and presumably to learn. She notes that he has undertaken drug and alcohol courses and, in her opinion, he is realistic in his determination to become abstinent from drugs and alcohol in order to maintain his relationship with Cindy Ray and her family. She notes, and I take into account, expressions by him of appropriate remorse about the murder. It is obvious that after release he would need to be supported and monitored by drug and alcohol services on a continuing basis and I accept her opinion that he would be at particular risk if his relationship with Ms Ray and her family deteriorated. Perhaps the most that could be said at this stage is that he is presently well motivated towards his own rehabilitation, he has taken some positive steps in that regard and his prospects of achieving rehabilitation during and after his term of imprisonment are better than his record would suggest.

34    His counsel submitted that there are special circumstances which would justify the setting of an additional term longer than one-third of the minimum, namely the existence of prospects of rehabilitation and the likely need for intensive supervision upon his release to ensure that he does not relapse into drug and alcohol abuse. I accept that such special circumstances exist but the reality is that notwithstanding everything that can be said in favour of Michael Privett's prospect of rehabilitation, the sentence which will be imposed will necessarily be a lengthy one, and application of the statutory formula would produce a lengthy additional term in any event.

35    Michael Privett was arrested on 30 June 1996 and remained in custody to 19 February 1997 when he was admitted bail. He was again taken into custody on 22 April 1999 and has been in custody to the present. However, of this latest period three months represented, as noted earlier, service of a fixed term sentence imposed in respect of a conviction of fail to appear. Making that adjustment, the situation is that he has served almost eleven months in jail in respect of the present matter. Appropriate allowance will be made if I reduce by eight months the total of the sentence which would otherwise have been imposed and commence the sentence from 27 July 1999 which is the time when he completed service of the fixed term of three months to which reference has been made. Material adduced in the sentencing proceedings satisfies me that, because he made statements incriminating Dean Privett and also gave evidence adverse to Dean, Michael Privett has been tagged by fellow prisoners as an informer. For that reason he is at risk of harm from other prisoners, and indeed, although he disclaims any present intention to do so, he may at some time be compelled to seek admission to a protection unit within the prison. Whether he does or not, it is clear that for him imprisonment will be, to a degree, more onerous than would otherwise have been the case. That is a circumstance that I take into account in mitigation of his sentence.

36    Dean Anthony Privett, you have been convicted by the jury of the murder of Peter Browne Rowland. In respect of that crime you are sentenced to penal servitude for a term of seventeen years and nine months, which sentence is deemed to have commenced on 22 October 1998 and will expire on 21 July 2016. That sentence is constructed as follows. There will be a minimum term of fourteen years and six months which, having commenced on 22 October 1998, will end on 21 April 2013. There will be an additional term thereafter of three years and three months during which you may be admitted to parole. The earliest date upon which you will be eligible parole is 21 April 2013.

37    Michael Privett, you have been convicted by the jury of the murder of Peter Browne Rowland. In respect of that crime you are sentenced to penal servitude for fourteen years and eight months. That sentence is deemed to have commenced on 27 July 1999 and will expire on 26 March 2014. That sentence is constructed as follows. There will be a minimum term of eleven years which, having commenced on 27 July 1999, will end on 26 July 2010, and an additional term thereafter of three years eight months during which you may be admitted to parole. The earliest date upon which you will be eligible for parole is 26 July 2010.

38    I have referred earlier to the importance to the rehabilitation prospects of Michael Privett of his continuing relationship with Ms Cindy Ray and her family. I recommend to the Corrective Service authorities that, as early as possible in his sentence, consideration be given to locating him at a prison as close as reasonably possible to the area where Ms Ray and her family reside.

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Last Modified: 11/10/1999