R v Brilliantes

[2013] NSWSC 1693

Supreme Court of NSW|2013-11-01|Before: Adamson J, Gleeson CJ, Callinan JJ

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2013-11-01

Before

Adamson J, Gleeson CJ, Callinan JJ

Catchwords

244 CLR 120 Postiglione v The Queen [1997] HCA 26
189 CLR 295 R v Olbrich [1999] HCA 54

Source

Original judgment source is linked above.

Catchwords

244 CLR 120 Postiglione v The Queen [1997] HCA 26189 CLR 295 R v Olbrich [1999] HCA 54

Judgment (17 paragraphs)

[1]

Introduction 1On Sunday 8 July 2012, not long after midnight, Christopher Brilliantes went to the Parramatta transport interchange with some associates. There was an altercation, in the course of which Brilliantes stabbed Patrick Crowe and killed him. 2The movements of many of the people involved were recorded on multiple CCTV cameras installed within Westfield's Shopping Centre and the Parramatta interchange. The Crown tendered the CCTV footage without objection. It was played in open court at the sentence hearing. 3The offender was arrested and charged on 11 July 2012. On 12 April 2013 the Local Court committed the offender for sentence in the Supreme Court. On 3 May 2013 the offender pleaded guilty to murder which was the single count on the indictment.

[2]

Facts 4The following facts are principally taken from the Statement of Agreed Facts that were signed by the offender on 1 November 2013 (the Agreed Facts) as well as admissions made in the Electronically Recorded Interview of Suspected Person (ERISP). The evidence at the sentence hearing included the CCTV footage, the statements of Judel Godoy and Yadira Rengifo, the offender's criminal history and two probation and parole reports dated 16 March 2012 and 13 July 2012. The offender tendered a report of Dr Olav Nielssen, psychiatrist. He also relied on an affidavit sworn by his mother, Charito Brilliantes, whose evidence was not challenged. 5As sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts are agreed or have been established beyond reasonable doubt, but if there are circumstances which I propose to take into account in favour of the offender it is sufficient that they be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ.

[3]

The murder and the events leading up to it 6At about 7.30 pm on Saturday 7 July 2012 Patrick Crowe met with two friends, Joshua Thompson and Dean Roche, at Church Street Mall in Parramatta. In the hours that followed the three attended various licensed premises and consumed alcohol. At approximately 1.00 am, they were refused entry to the Albion Hotel because they were intoxicated. Crowe and one of the other two had to be removed from the premises by force. 7At about 1.45 am on Sunday 8 July 2012, the three men were walking along the Church Street Mall when they passed three young females who were sitting on a park bench. They were FE, HH and ZP. They taunted the three men, who retaliated with verbal taunts and abuse. Crowe threatened the three females. 8Thompson walked ahead of Crowe and Roche, but they soon caught up with him. The three headed towards the Parramatta interchange in Argyle Street to catch a bus home. 9Roche realised that the females were following them at a distance. When Roche went into Hungry Jacks Restaurant to buy food, the three females went in after him. FE's brother, KE, joined them there. By this time Crowe and Thompson had gone ahead to the bus stop. 10Crowe rang Roche from the bus stop to let him know that the bus was nearly due. About this time, FE received a telephone call from young person JV, following which JV telephoned Brilliantes. Brilliantes was at a party in a home unit on Noller Parade with Judel Godoy and young persons TC and SL. They were drinking alcohol and smoking cannabis together. Brilliantes had also smoked ice. 11As a result of what JV told Brilliantes, he announced to the males around him, "There is going to be a punch on." Before they left the unit Godoy noticed that Brilliantes had a knife which had a black handle and a serrated blade that was about 16 cms long. When Godoy asked him why he had the knife, Brilliantes explained that it was in case anyone else had a weapon. 12The four males left the unit and walked to the Parramatta bus interchange to meet JV. Neither SL nor JV was aware that Brilliantes had a knife. 13By this time Roche had joined Crowe and Thompson at the bus stop. He noticed that the three females they had seen before were also there. 14Further verbal insults were exchanged between the three females and Thompson. When Roche did not take part, Crowe became annoyed since he saw Roche as siding with the females. Crowe pushed Roche in the chest and made him fall backwards into a large planter box. 15During the exchange, FE was taking calls on a mobile phone. In the course of one of these calls, she was heard to say: "I'm waiting at the bus stop". Phone records confirm that FE's mobile number received seven telephone calls from JV's mobile number between 9.45pm to 1.57am. The shortest of these calls lasted 11 seconds and the longest 2 minutes and 49 seconds. 16Six phone calls, lasting between 30 and 90 seconds, were made from JV's mobile number to Brilliantes' mobile number that night between 01:40am and 01:50am. 17Shortly after these telephone calls, CCTV footage shows five males running towards Crowe, Thompson and Roche. These five males were TC, JV, SL, Godoy and Brilliantes. As the males approached, FE pointed to Crowe and said: "This guy, this guy". 18TC, JV and SL circled Crowe and Roche and began to assault them. Brilliantes remained about three metres from where the assault was taking place. Godoy did not approach any of the victims and did not participate in the assault. 19Roche attempted to protect Crowe from the assault. The three young persons cornered Crowe and Roche next to the bus shelter. Brilliantes stood towards the back of the group, as did Thompson. Thompson saw Brilliantes produce a knife and point it at him. Brilliantes said: "Don't come any closer unless you want to be stabbed." Thompson backed away in fear. As soon as FE realised that Brilliantes had a knife, she pointed Crowe out to him. When she had done so, she stood on the sidelines and cheered with her fist raised in the air. 20Brilliantes lunged towards Crowe and stabbed him with the knife. Crowe sustained a deep stab wound to the left side of his torso. 21Crowe collapsed. A witness came to his aid and wrapped his shirt around Crowe's wound. Thompson and Roche called Triple-0. Police and Ambulance arrived. Crowe was taken to Westmead Hospital where he underwent emergency surgery to repair a collapsed lung. At about 6:50 am that morning he died. 22Immediately after the stabbing, Brilliantes ran from the scene, as did TC, JV, SL, KE and the three female young persons. Brilliantes tried to give Godoy the knife he had used to stab Crowe, but Godoy refused. 23Brilliantes and Godoy ran up Argyle Street where they cut across a pedestrian crossing which led them to Valentine Street. Brilliantes tried to pass Godoy the knife again. Godoy saw blood dripping from the knife. Brilliantes asked Godoy to take the knife and clean it but Godoy refused. Brilliantes picked up a paper bag from the ground, put the knife inside and threw the bag and its contents into a bin. 24The pair continued to run towards Brilliantes' home in Parramatta. When they arrived, TC, SL, JV, FE and ZP were already waiting outside. They all went inside and Brilliantes changed his clothes. 25About half an hour later the group returned to the unit on Noller Parade. Brilliantes, Godoy, FE and SL went by taxi; the others walked.

[4]

The aftermath of the murder 26At 4:20 pm on Wednesday 11 July 2012, a search warrant was executed on the unit on Noller Parade. TC, Brilliantes and Godoy were arrested and taken to Parramatta Police Station. 27Brilliantes made the following admissions when interviewed by police: He received a phone call from JV who told him his cousins were in trouble at the bus stop at the Parramatta train station. He was at a friend's home earlier in the night with Godoy, TC and SL. He told Godoy, TC and SL at the house that he thought there was going to be a fight. After receiving the telephone call from JV he ran from the house with Godoy, TC and SL and met JV in front of the crossing at the Albion Hotel. From the Albion Hotel they ran to the interchange in Parramatta. TC, JV and SL ran over and fought Crowe and his friends while he and Godoy stayed back. He told police that he just snapped and stabbed Crowe in the back and ran straight away "...they were punching on and then I don't know what I was thinking. I was just so smashed that I stabbed the bloke, cause I didn't, I wasn't hitting or I didn't punch on or anything like that. I just ran in and just stabbed him and that's it and then I ran". He told police that they had been smoking marijuana and drinking wine earlier that night. He said that he was "high" but did not admit to taking other drugs. He said: "I just, I felt angry and then once it was over I felt scared and I felt like shit". He ran home afterwards with Godoy and JV and the girls came to his house. He told police he was angry when he returned to the house and said "Because I done that for a stupid reason. I didn't even know these people very well and I came to help them out and oh it's stupid". Brilliantes was asked by police if at the time he thought it was possible that Crowe would die and he stated: "Yeah ... oh, just maybe if I hit him the wrong way, wrong place or like just anything like that yeah ... he'd die". The offender admitted that ten seconds before stabbing Crowe he showed the tip of the blade to one of Crowe's friends so that he would step back and only said, "just don't move" and the friend then screamed out "he's got a knife". There was no discussion prior to going down to the bus stop about stabbing someone. Straight after the stabbing Brilliantes told TC, SL, JV, Godoy and the girls that he had stabbed Crowe. The offender thought that he threw the knife in a bush somewhere but couldn't remember. He said that he did not want to have it in his hand. The offender admitted that he took clothes to his friend's house and was going to stay there because he thought people would know it was him who stabbed Crowe and he wanted to avoid people. The offender stated that he was sad, it was stupid and he regretted what he did. 28In the course of the interview Brilliantes identified photographs of clothing he wore on the night and identified and signed CCTV stills of himself holding a knife as well as stills of the males who had been with him and others he recognised. He also drew a picture of the knife he had used which he described as resembling a steak knife. 29Brilliantes also made the following self-serving statements in the record of interview which are not agreed by the Crown: TC had the knife to begin with and once they got down to the train station TC pulled out the knife and gave it to him. He saw Crowe and his mates hitting and pushing the girls with whom JV was acquainted. When he was 5 meters away he saw Crowe push two of the girls. One of the girls fell into a pot plant when she was pushed by Crowe. The offender stated they targeted Crowe because "he was the loudest one. He wanted to fight. He started fighting everyone". The offender stated that Crowe was "fighting back. He was fighting us first. Like he was fighting SL, TC, JV. He was hitting, fighting them". The offender said that it was just an accident. He said the first he knew that Crowe had died was when he saw it on the news. 30Counsel for the offender accepted that he did not see Crowe push or hit the two girls. However, she contended that Brilliantes might have mistaken the incident where Crowe pushed Thompson into the planter box and believed, incorrectly, that Crowe had assaulted one of the females. I am not satisfied that Brilliantes believed at any time that Crowe had used any violence or direct force against any of the females. In my view, he made this up to excuse his own aggression. 31Counsel for the offender accepted that the knife was in Brilliantes' possession while he was at the interchange although she contended that I ought find that it was provided to him by TC before they arrived at the interchange. I am satisfied on the basis of Mr Godoy's unchallenged statement that it was Brilliantes who was responsible for bringing the knife from the unit to the interchange.

[8]

Objective seriousness of the offence 40The sanctity of human life is of great significance. The unlawful and intentional taking of a human life is a heinous crime. 41The offence of murder carries a maximum sentence of life imprisonment. The applicable standard non-parole period (SNPP) is 20 years. The SNPP represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness (s 54A(2) of the Crimes (Sentencing Procedure) Act 1999) whereas the maximum sentence is to be given only in the most severe of cases. The SNPP and the maximum sentence are considerations that are relevant to the exercise of sentencing discretion: Muldrock v The Queen [2011] HCA 39; 244 CLR 120, at [27]. 42The Crown, in my view correctly, did not contend that this murder is in the category of offences for which a life sentence ought be imposed. 43I am not satisfied beyond reasonable doubt that Brilliantes intended to kill Crowe. I am, however, satisfied that he intended to cause Crowe grievous bodily harm when he inflicted the wound that proved to be fatal by stabbing him in the chest with a knife and puncturing his lung. 44Before Brilliantes revealed that he had a knife, he had the opportunity to assess whether anyone in the opposing group was armed. As soon as he brandished the knife, Roche, Thompson and Crowe backed away. Brilliantes took advantage of the physical supremacy that the knife afforded him by stabbing Crowe. It was an impetuous, senseless, cowardly act of violence against someone who happened to be in the wrong place at the wrong time and who posed no immediate or relevant threat to Brilliantes or, at that time, to anyone else. 45It is of significance to the objective seriousness of the offence that the offender brought the knife to the scene and produced and used it in circumstances where he had reason to believe that the members of the opposing groups would otherwise assault each other with their bare fists. 46Brilliantes produced and used the knife at an interchange, where members of the public who use public transport are required to assemble and wait, sometimes for a substantial period. There was a risk of members of the public endangering themselves to help a victim of such violence or by fleeing from the scene to escape being caught in a confrontation between groups. The risk to public safety presented by Brilliantes' conduct is an aggravating factor.

[13]

Subjective circumstances 58The matters concerning the offender's early life, which I am about to recount, come from the unchallenged evidence of the offender's mother, Charito Brilliantes. 59The offender was born in the Philippines. His father left his mother when he was one year old. In 1997, when he was seven, he came to Australia and lived with his grandmother, her partner and other relatives at a house in Hurstville. Mrs Brilliantes came to Australia herself a few months later and went to live in the family home. The following year, Mrs Brilliantes had a daughter, of whom the offender became very fond. 60In 2000, the offender's grandmother separated from her partner and moved away from the Hurstville house, leaving the offender there with his step-grandfather for a few months. In the same year, Mrs Brilliantes met her current partner. She became pregnant the following year. Friction developed between her new partner and the offender as a result of which the offender was no longer welcome to live with his mother. 61The offender was passed from relative to relative. From the ages of 10 until 16 he was always on the move between different houses and different schools. He wanted to live with his mother. When she made it clear that this was impossible, he became aggressive and began stealing. Some of his prior offending is referred to above. He left school at 15. He has never done any paid work. 62Although Mrs Brilliantes telephoned the offender regularly and saw him from time to time, he told her that he felt that he had no family in Australia. The offender now has four half-sisters, all of whom live with their mother. 63These matters are relevant to the sentence, although not to the objective seriousness of the offence. Justice demands that allowance be made for life's adversities, particularly when, as here, they have deprived the offender from a young age of any real opportunity in life. 64The offender started using cannabis at the age of 13 and, in recent years, has smoked methamphetamine known as ice, when out of gaol, including at around the time of the murder. I accept Dr Nielssen's diagnosis, based on the offender's use of methamphetamine, that the offender suffers from substance abuse disorder. I also accept that he was affected by marijuana, ice and alcohol at the time of the offence. His drug-taking explains, at least in part, his impulsive and aggressive conduct but it is not a mitigating factor. 65The offender was 21 years and 9 months at the date of the offence. Generally speaking in the case of a young offender, there is a limited role for general deterrence and the emphasis should be on rehabilitation, particularly where the offender's immaturity has contributed to the commission of the offence. However leniency should not be so readily afforded to the offender where, as here, the offence is one more commonly expected of an adult. 66I accept that the offender feels a degree of remorse and regret for the consequences of his actions which is distinct from his feelings of self-pity and concern for himself. 67He has completed two courses in gaol: a work place safety course and a barber hygiene course.

R v Brilliantes

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