DPP v Brazel [2003] VSC 95

Supreme Court of Victoria|2003-03-28|Before: CUMMINS J.

CRIMINAL LAW - sentence - murder - execution - crime unsolved - accused voluntarily coming forward after 18 years and confessing - plea of guilty - considerations applicable - Sentencing Act 1991 ss 14(2), 16(1), 16(1A), 16(3B), 17(1) and 18(1) - ; - - life imprisonment - minimum term set.

Mr Brazel, this is the third time I have sentenced you for murder.

On this occasion you have pleaded guilty to the murder at Mordialloc on 20 September 1982 of Mrs Mildred Hanmer. The crime was the execution for money of an innocent woman, and as such must be met by severe punishment. Mrs Hanmer at the time of her death was 50 years of age. Her death and its then known circumstances left her two daughters, then aged 13 and 11 years, devastated and bereft of their mother, and the daughters suffer from your crime to this day.

The crime for nearly 20 years remained unsolved. Then, wholly of your own decision and volition, you came forward to police and confessed your involvement in the crime. Subsequent intensive police and forensic investigation demonstrated that in confessing your part in the crime you were telling the truth. Having myself reviewed all the evidence, I am affirmatively satisfied of your truthfulness. The fact that you have now, wholly of your own volition, come forward, told the truth and solved the crime weighs significantly in your favour on the matter of sentence. Your late actions, however, do not undo the terrible effects of the actions you took in 1982.

The deceased and her husband, Mr Richard Hanmer, resided at Mount Eliza with their two daughters in 1982 whom as I have said were then 13 and 11 years of age. The deceased met her husband when he was visiting his first wife at the Frankston Community Hospital, where she (his first wife) was gravely ill. The deceased was a nurse at that hospital. Mr Hanmer's first wife died and later the deceased and Mr Hanmer married. There was one child, a son, of Mr Hanmer's first marriage, and who was 27 years of age at the time of the killing.

The deceased and Mr Hanmer were the proprietors of a hardware and giftware business at 77 Warren Road, Mordialloc which they had purchased in 1981. As part of that business, and operating at those premises, was a State Savings Bank agency and a dry cleaning depot. The whole business operation was financially sound, and the bank agency in particular was profitable. Both the deceased and her husband actively worked in the business on the premises.

On Monday, 20 September 1982 the deceased, having driven her two daughters to primary school, attended the premises at Warren Road at 8.15 am and opened them for business. Mr Hanmer, who had recently undergone surgery for a hernia, was recuperating at their home in Mt Eliza. The deceased was serving at the business alone. During the course of the morning, several customers entered the premises and purchased hardware items or made transactions at the bank agency which operated from a separate counter at the rear of the shop. Customers later told investigating police that Mrs Hanmer that morning appeared bright and untroubled, as was her normal self. Records maintained by the deceased showed that 14 deposits or withdrawals were effected that morning. Calculations showed that the sum of $2,569.00 was held at the bank agency by midday that day. At about 12.50 pm, a woman who was residing in a flat at the rear of the next door premises heard a "bang" and then a woman's voice calling for help. The neighbour entered the shop and found Mrs Hanmer grievously injured and lying on the floor. No other person was in the premises. The ambulance and police were immediately called. Mrs Hanmer was conscious and able to give a description to police of her assailant. She was then promptly removed by ambulance to the Alfred Hospital but despite emergency treatment died that afternoon at 3.20 pm. An autopsy conducted on 21 September 1982 at the then Coroner's Court by the Senior Government Pathologist, Dr J.H. McNamara, found the cause of the deceased's death to be haemorrhage from a gunshot wound and from the left sub-clavian vein. She had been shot once in the right chest between the second and third ribs. The pathologist concluded that the deceased had been shot from the front.

The attacker of Mrs Hanmer was not seen by any witness. She and the attacker were alone in the shop when she was shot.

After Mrs Hanmer was shot, and before the neighbour arrived, Mrs Hanmer struggled to the phone and rang her husband. It was about 12.50 pm. She said, gasping for breath, "Dick, I've been robbed and I'm dying". Because of her condition Mr Hanmer was unable to obtain any further information from her. He remained on the phone for a short time and then he heard another voice which said "It's alright, the ambulance is coming". He then hung up and drove straight to the shop. When he arrived there, his wife was lying on the floor by the bank counter at the rear of the premises. Ambulance officers were in attendance and giving paramedical assistance to her. Mr Hanmer said, "Millie, do you know I'm here with you?". His wife replied, "Yes". Local police, who also were in attendance, ushered him away and he waited in the shop next door. When the ambulance left he followed it to the Alfred Hospital. He remained there and was at the Hospital when he was informed that his wife had died.

To local police who had rapidly arrived at the premises, and before her condition deteriorated, Mrs Hanmer described her assailant as a male, about 25 years of age, Australian, 5' 7" height, with ginger hair and carrying a cut down gun 8" long. She stated that her assailant left the shop by the front door.

Forensic examination at the scene established that the deceased was shot in the rear section of the shop. The cash of $2569.00 had been stolen. No cartridge or bullet was found at the premises.

Homicide officers were called in. An exhaustive investigation followed. Wide- ranging enquiries were undertaken. A police caravan was placed in the street to facilitate witness input. All to no avail. No leads to the killer were found. The deceased's husband was unable to provide any material to assist the investigating police in their enquiries. The crime remained unsolved for almost 20 years.

And then, in August 2000, you came forward to police.

At the time of the murder you were nearly 28 years of age, having been born on 17 November 1954. You are now 48 years of age. At the time you already had a considerable number of convictions, including for violence, the most serious being convictions in the County Court on 26 October 1978 for armed robbery and related charges and for which you had been sentenced to imprisonment for 6 years 9 months with a minimum term before eligibility for parole of 3½ years. You were on that parole when you committed this murder in September 1982. You were not apprehended for the murder but remained at large. In those years after the murder, you committed a series of extremely serious offences for which you were convicted and sentenced. From March 1983 until the time you came forward in August 2000 to confess to this murder, you were convicted of 37 offences on 15 different occasions before the courts. Numerous of those offences were for dishonesty and for serious violence to the person. In June 1983 you were sentenced in this Court to two years' imprisonment for contempt of court. In November 1987 you were sentenced in the County Court to six years' imprisonment with a minimum term before eligibility for parole of four years' imprisonment on two counts of armed robbery. Under the then pre-release scheme you were released under that sentence from prison on 21 January 1990. On 28 May 1990 at Barongarook, south of Colac, you murdered a prostitute and loving mother. Her body was not discovered until 23 September 1990. In the meantime your pre-release had on 21 July 1990 matured into parole. On 13 September 1990 at Sorrento on the Mornington Peninsula you murdered another prostitute who also was a loving mother. Her body was discovered on 1 October 1990. You had been arrested on other matters on 26 September 1990. Ultimately you were tried and convicted of each of those murders. You remained mute at both trials. In August 1992 I sentenced you to 20 years' imprisonment for the May 1990 murder, with a minimum term before eligibility for parole of 17 years. The Court of Appeal reduced that sentence to 17 years' imprisonment with a minimum term before eligibility for parole of 15 years. It declared that the period of 699 days pre-sentence detention be reckoned as already served under the sentence and so certified. In May 1993 I sentenced you to 20 years' imprisonment for the September 1990 murder, with a minimum term of 17 years. I ordered that seven years of the sentence I imposed for the second murder be served concurrently with the sentence for the first murder, making a total effective sentence of 30 years' imprisonment with a minimum term of 25 years before eligibility for parole. The Court of Appeal did not reduce that sentence. You have been in custody continuously since your arrest on 26 September 1990 until today.

While in custody you have continued to offend. In October 1994 you were sentenced in the County Court to seven years' imprisonment for false imprisonment and three years' imprisonment on each of two counts of making threats to kill. In June 1997 you were sentenced in the County Court to two years' imprisonment for arson. In December 1998 you were sentenced in the County Court for 2 years 9 months imprisonment on two counts of bribery of a public official. You have also been convicted of a number of lesser offences while in custody.

As a consequence of the 1992 and 1993 sentences for murder and of sentences for other offences while in custody, at the time you came forward and confessed to this crime you, at the age of 46 years, were serving sentences of imprisonment of a total effective term (allowing for partial concurrency of those sentences) of 34 years' imprisonment, with a term of 28 years' imprisonment before you first would become eligible for parole. Allowing for time served in pre-sentence detention, your earliest possible parole date was 24 February 2020. You would then be 65 years of age. You are now in poor health.

The reason you came forward when you did, in August 2000, and confessed to the murder of Mrs Hanmer was to tell the truth. It was to seek to purge, partially, your guilt. It was, in your words, to confront your demons. I am satisfied that that was the true reason for your coming forward. You came forward through a genuine sense of contrition. I am satisfied that there was not a collateral or hidden reason for your coming forward. The only benefit you sought to gain was the partial expurgation of your guilt. You well knew that the consequence of your coming forward would be a significantly increased term of imprisonment upon the already lengthy terms you were then serving.

When you first came forward to confess your guilt of the murder nearly 20 years before of Mrs Hanmer, the investigating police, rightly responsibly and properly were cautious of your confession. They rightly examined it with great care. They rightly were scrupulous to look for verification. They rightly looked for other explanations - for lateral advantage to you, for any hidden agenda, for manipulation, for notoriety, for unreliability, for untruthfulness. But in the end, save as to one matter, the investigating police came to the conclusion that you were telling the truth. Accordingly, after a full investigation over nearly 2 years, on 7 July 2002 you were charged with the murder of Mrs Hanmer. A committal hearing was held at the Melbourne Magistrates' Court in December 2002 at which you pleaded guilty to the charge of murder. Then you were presented in this Court on 14 February 2003 when again you pleaded guilty to the count of murder.

The one matter as to which investigating police were not satisfied as to your truthfulness was the identity of the principal for whom you committed the execution. I shall return to that matter.

When you came forward to police in August 2000 you gave an account of the murder of Mrs Hanmer and of its antecedents and sequelae. On 31 August 2000 you were interviewed at the Homicide Squad office about the murder, over 2½ hours in an 823 question interview which was videorecorded. Later that day you made a 4 page typed statement. What you said to investigating police on all those occasions was consistent. In substance it was the following.

In 1982 you were on parole and not travelling well. In September you chanced to meet a former prison inmate who said to you that he had a person who needed something done. After discussion he gave you the telephone number of that person, whom I shall call the principal. You rang the principal and as a consequence met him three times in the Frankston area. He said he wanted the deceased killed, and to make it look like an armed robbery gone wrong. He gave you directions to the premises where the killing was to take place. He agreed to pay you $30,000 for the killing, $15,000 before and $15,000 after the killing. You then made arrangements, went to the deceased's work premises initially posing as a customer and killed her by shooting her in the back. She did not die immediately. Because the silencer on your gun did not work and there was a loud explosion when you fired, and because the victim screamed, you did not reload and fire another shot but left immediately through the front door. You took the cash from the premises. You knew the victim would die. Some days later you again met the principal. He had paid you $15,000 in cash before the shooting and at that last meeting he paid you the remaining $15,000, in cash. He said "Well done". You never saw the principal again.

Every detail of your statements was investigated by police and where other evidence was available that other evidence corroborated your statements. A distinguished forensic scientist, Mr Peter Ross, confirmed your statement as to how the deceased was shot, in contradistinction to the pathologist who conducted the autopsy in 1982 and whose opinion on that matter was shown to be erroneous. Investigating police attended a prison in Brisbane and interviewed a prisoner there who was the person who originally told you he had a person who needed something done. That prisoner in a detailed statement confirmed with particularity all that you had told the police. There had been no contact between you (in prison in Melbourne) and that person (in prison in Brisbane) prior to the police interviewing him and there had been no contact between you both for years.

As I have said, when in August 2000 you spoke to the police they then proceeded to investigate the matter. In order to further that investigation, the Director of Public Prosecutions in writing on 28 August 2000 informed you that any statement made by you in relation to the murder would not be used in evidence against you. You have not sought the benefit of that proposition, properly made to further the investigation, but rather you proceeded to waive it and to speak without its protection and to come to court and plead guilty.

I have studied the video of the homicide interview of you of 31 August 2000 a number of times. It occurred over 2½ hours and involved 823 questions and answers. I consider you were answering the questions asked, truthfully and genuinely. You were not evasive, opportunistic or dissembling. Your tone was one of genuineness, resignation and some world-weariness. You were remorseful. Your answer to question 18 at 11.00 am was full and your answer to questions 557 at 12.54 pm and 808 at 1.25 pm were genuine.

You stated that the principal who retained you to do the killing was the husband of the deceased. The police, having investigated the allegation, reject it. Mr Hanmer totally rejects it. In his victim impact statement, tendered before the Court, he stated that the allegation "fills me with disgust and anger, at times difficult to control".

On this plea, it was inappropriate to call for material on the police investigation as to the identity of the principal and I did not. I make no finding as to the identity of the principal, because there is insufficient further material before me responsibly and properly to do so. Every citizen, of course, rightly is presumed innocent of any crime until proven guilty.

The living victims of the murder, the two daughters of the deceased, have provided moving and impressive victim impact statements, tendered before the Court. I accept those statements fully. Unfortunately the annexures to one statement as provided by the prosecution to the Court are incomplete, but in the part provided of a psychological report as to one daughter the psychologist noted:

"Unfortunately, following her mother's death, (the daughter) was not allowed to grieve properly, due to her father's own unusual reaction to this tragic event. Indeed, she and her sister were forced to suppress their emotions, were not allowed to cry and were encouraged to avoid any reminders of their mother, such as visiting her gravestone or remembering her birthday".

At the time you committed this murder (1982) the sentence for murder was life imprisonment. No lesser term of imprisonment was available, and no minimum term of imprisonment was available, by parole or otherwise. Today, the sentence for murder is life imprisonment or imprisonment for such lesser term as the sentencing Judge, acting on criteria known well to the law, decides. By operation of the common law and s. 114(2) Sentencing Act 1991 and s. 8 Crimes (Amendment) Act 1986 that is the sentence which now is available for disposition in this case. Also, in this case a minimum term of imprisonment before eligibility for parole may now be ordered.

I turn to the provisions governing the imposition and serving of the sentence I today impose upon you. Under s. 17(1) Sentencing Act 1991 a sentence commences on the date it is imposed. Because you committed this crime while you were on parole, the usual statutory rule of concurrency with uncompleted sentences does not apply: s. 16(1) and (1A)(d) Sentencing Act 1991. You are already serving lengthy sentences of imprisonment. The latest relevant sentencing order is that of the County Court of 3 December 1998 on two counts of bribery of a public official. You were there sentenced to two years' imprisonment on count 1 and nine months' imprisonment on count 2, with 12 months of the sentence on count 1 being ordered to be served cumulatively with the sentences you were then undergoing, and making a new total sentence of 34 years' imprisonment. The Court ordered that you serve a new minimum term of 29 years' imprisonment before becoming eligible for parole. That was on 3 December 1998. Four years and four months of that sentence have now been served by you, Mr Brazel. As I have previously stated, by reason of pre-sentence detention (of 699 days) and prison management deductions, until today your earliest possible date under that sentence (picking up as it did previous sentences and calculations) was 24 February 2020. The sentence, including the minimum term, I impose today does not itself involve any deductions for pre-sentence detention (because you have not spent any time in pre-sentence custody in relation to this offence: s. 18(1) Sentencing Act 1991): see also R. v. Rich (2002) VSCA 17 per Brooking J.A. (in whose judgment Winneke P. and Charles, J.A. agreed) paras. 99-107 especially at 106. Thus the sentence, including the minimum term, which I impose today operates from today and will be served from today. Your prison management deductions, however, remain unaffected: R. v. Rich per Brooking J.A. at para. 99.

Any non-parole period ordered by me today replaces the County Court non-parole period of 29 years ordered by that Court on 3 December 1998 and by law must not render you eligible to be released on parole earlier than that period: s. 14(2)(a) & (b) Sentencing Act 1991.

As also I have said, when you committed this murder you were on parole. You had been sentenced in the County Court on 26 October 1978 on armed robbery and related charges to 6 years 9 months imprisonment with a minimum term before parole of 3½ years. If, by reason of subsequent convictions and sentences the Adult Parole Board cancelled that parole and you served the balance of that sentence in custody, there is no time now due to the Adult Parole Board on that 26 October 1978 sentence and this conviction and sentence does not involve that any further sentence be served for breach of that 1978-derived parole. If the Adult Parole Board did not cancel your 1978-derived parole, this offence of murder constitutes a breach of that parole. Ordinarily therefore, if the Adult Parole Board now cancelled that parole, you would be required to serve the balance of that term of imprisonment cumulatively upon the term of imprisonment I today impose: s. 16(3B) Sentencing Act 1991. However I order that the unexpired portion of the 26 October 1978 sentence (if the Adult Parole Board now cancelled that parole) be served concurrently with the sentence I today impose. That is because of the exceptional circumstances (s. 16(3B)) of the time lapse between the imposition of the 1978 sentence and now, and particularly because of the fact that you have now come forward voluntarily and of your own initiative to confess your guilt of this crime.

The crime you committed, Mr Brazel, is in the most serious category of the most serious crime - the execution for monetary gain of an innocent person, indeed a loving mother of two young daughters. That categorisation necessarily involves severe punishment being imposed upon you.

There is however a cluster of mitigating factors in your present situation and which is relevant to the proper sentence to be imposed upon you. First, after nearly 20 years you have come forward wholly of your own volition and confessed to the crime. Second, your coming forward and confession was motivated by contrition and true remorse. Third, the authenticity of that motive is not deflected or derogated from by any collateral purpose or seeking by you of advantage. Fourth, your confession has solved a long unsolved crime. Fifth, it has brought some partial finality to the suffering of the living victims; but they will suffer for as long as they live. Sixth, you have pleaded guilty to the crime. Seventh, you have genuine and plenary remorse. Eighth, you have not at any time since you came forward and confessed, sought to avoid full responsibility for your actions. You also waived the benefit of a possible indemnity. Ninth, you told the truth to the police, involving as that did the placing of this crime in the most serious category of murder, a paid execution. Tenth, you have been in continuous custody since September 1990 and face lengthy further imprisonment and you are in a state of poor health.

Earlier I set out your criminal history since this offence. That was not for the purpose of now punishing you again for those later crimes - which I do not - and not for the purpose of increasing the proper sentence for the 1982 offence (R v. Rumpf [1988] VicRp 55; (1988) VR 466 at 475 per McGarvie J. and in whose judgment Young C.J. and Murray J. agreed) - but was for the purpose of explaining your circumstances when you came forward and confessed, and for the purpose of ascertaining your present position as to sentences now being served, relevant to the application of and serving of the sentence now to be imposed upon you. Together with the well known principles of sentencing - of condemnation, punishment, general and special deterrence, and reformation, principles governing and guiding this sentence - I must also have regard to, and I do have regard to, the principle of totality.

This was a paid execution of an innocent woman. The proper sentence for that crime is life imprisonment. For the murder of Mrs Elizabeth Hanmer I sentence you, Mr Brazel, to life imprisonment.

It is proper that I set a minimum term. That is because at the time you committed the murder you did not have a heinous criminal record, and because at the age of 46 years you came forward, voluntarily and truthfully, and with no advantage to you other than the partial purging of your guilt, and confessed to the crime, thus bringing some finality to it and for its living victims after all these years. I direct that you serve a minimum term of 27 years' imprisonment before you are eligible for parole.

---------------------------------------------------

At a glance

Court

Decision date

Before

Source

Judgment (39 paragraphs)

Parties