The Queen v Brusch, E.g - [1986] FCA 154

Re: THE QUEEN; ERNEST GERALD BRUSCH
And: ERNEST GERALD BRUSCH; THE QUEEN
No. NT G31 and G32 of 1985
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY OF AUSTRALIA
DISTRICT REGISTRY GENERAL DIVISION
Toohey J.
Beaumont J.
Wilcox J.

CATCHWORDS

Criminal Law - manslaughter - Crown appeal against sentence - cross appeal by respondent prisoner - negligent use of firearm - respondent sentenced to term of imprisonment - whether adequate - whether excessive - direction for release of respondent on good behaviour bond at expiration of non-parole period - whether authorized by statute - appropriateness of conditional release

Criminal Code Act s.167

Criminal Law (Conditional Release of Offenders) Act s.5

Parole of Prisoners Act s.4

HEARING

PERTH

#DATE 24:4:1986

ORDER

The sentence imposed by the Supreme Court of the Northern Territory be varied by deleting the direction that the respondent be released, after serving the non-parole period, upon his entering into a bond of $2,000 in his own recognizance to be of good behaviour for three years.

Otherwise the appeal and cross appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The Court has before it an appeal and cross appeal from a sentence imposed on Ernest Gerald Brusch by the Supreme Court of the Northern Territory on 8 November 1985.

Mr. Brusch was indicted for the offence of murdering Kathleen Mary Corby on or about 29 December 1984 at Darwin. He was convicted of manslaughter, an offence for which s.167 of the Criminal Code prescribes a maximum penalty of imprisonment for life. He was sentenced to a term of seven years' imprisonment with hard labour, to run from 29 December 1984. The primary judge fixed a non-parole period of two years six months and, pursuant to s.5 of the Criminal Law (Conditional Release of Offenders) Act, he directed that after the prisoner had served the non-parole period he be released upon his entering into a bond of $2,000 in his own recognizance to be of good behaviour for three years.
The Crown appealed against the sentence on the ground that his Honour erred in law in imposing a sentence which was manifestly inadequate and in his direction for the release of the prisoner after the non-parole period. Mr. Brusch countered with an appeal on the ground that his Honour erred in law in imposing a sentence which was manifestly excessive.
Mr. Brusch was born at Hobart on 16 March 1958 and, at the time he was sentenced, he was 27 years of age. The material before the Court makes no reference to any previous conviction and it must be taken that this was Mr. Brusch's first offence. He had been living with Ms. Corby for about three years before her death. They had been in Darwin about six months.
At the time of the offence, Mr. Brusch, together with Ms. Corby, his brother Stanley and Stanley Brusch's fiance Joanne Booth were staying in a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Brusch, E.g

Details

AGLC: The Queen v Brusch, E.G. [1986] FCA 154
Case: [1986] FCA 154
Decision Date: 24 APRIL 1986

CaseChat Overview and Summary

The Queen brought an appeal against the sentence of Brusch, who was convicted of manslaughter in the Supreme Court of the Northern Territory. Brusch also filed a cross-appeal against the adequacy of his sentence. The case was heard in the High Court of Australia, which was required to determine whether the sentence imposed by the Supreme Court was appropriate and whether the direction for the respondent’s release on a good behaviour bond was lawful. The Court had to consider the principles of sentencing in relation to manslaughter and the statutory authority for conditional release.

The legal issues that the Court needed to resolve were whether the sentence was adequate or excessive, and whether the direction for the respondent's release on a good behaviour bond was authorised by statute. The Crown argued that the sentence was inadequate and did not reflect the seriousness of the offence. Brusch contended that the sentence was excessive and that the statutory provisions did not permit the release on a good behaviour bond after the non-parole period. The Court had to interpret the relevant statutory provisions and consider the principles of sentencing in light of the facts of the case.

The Court held that the sentence imposed by the Supreme Court was adequate and not excessive, taking into account the principles of sentencing for manslaughter. However, the Court found that the direction for the respondent’s release on a good behaviour bond after serving the non-parole period was not authorised by statute. The statutory provisions did not permit such a direction, and the Court held that it was beyond the power of the Supreme Court to make such an order. The Court varied the sentence by deleting the direction for the respondent’s release on a good behaviour bond and dismissed the appeal and cross-appeal otherwise.

The Court's final orders were that the sentence imposed by the Supreme Court of the Northern Territory be varied by deleting the direction that the respondent be released, after serving the non-parole period, upon his entering into a bond of $2,000 in his own recognizance to be of good behaviour for three years. The appeal and cross-appeal were dismissed otherwise. The orders were to be settled and entered in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

The sentence imposed by the Supreme Court of the Northern Territory be varied by deleting the direction that the respondent be released, after serving the non-parole period, upon his entering into a bond of $2,000 in his own recognizance to be of good behaviour for three years.

Otherwise the appeal and cross appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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