Re Queen; Ernest Gerald Brusch v Ernest Gerald Brusch; R [1986] FCA 129 (24 April 1986)

FEDERAL COURT OF AUSTRALIA

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
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.

DECISION

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.

2. 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.

3. 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.

4. 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.

5. 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 unit in Nightcliff, a northern suburb of Darwin. All had arrived in Darwin together. Stanley Brusch owned a 30/30 Winchester rifle which he acquired in October 1984 and brought with him to Darwin for pig shooting. He had a box of ammunition which Mr. Brusch had bought for him in Darwin.

6. About noon on Friday, 28 December 1984, Mr. Brusch left the unit; his brother, Ms. Corby and Ms. Booth remained there. When Mr. Brusch returned that afternoon, his brother was doing some work on his rifle, including fixing a telescopic sight. There was some conversation between Mr. Brusch and Ms. Corby of a mildly argumentative nature and the two women then left the unit to do some shopping. They returned half an hour or so later, Ms. Corby bringing with her some oil for the rifle. Stanley Brusch then cleaned and oiled the rifle, put it away in a vinyl case and left it in the living room of the unit. It was unloaded.

7. For the rest of the afternoon the four persons lazed around. As Ms. Corby was preparing the evening meal, Stanley Brusch heard some remarks pass between her and his brother in which, apparently, Ms. Corby reminded Mr. Brusch that he owed his brother $500. Mr. Brusch then asked his brother to go out with him. Ms. Corby asked Mr. Brusch for the keys of the car as she thought he had drunk too much alcohol to drive. Mr. Brusch left the unit riding a bicycle; Stanley Brusch and the two women remained.

8. A short time later Ms. Corby came downstairs from the bedrooms in the unit, carrying a white canvas bag. It contained some personal items. She left the unit in the car. Stanley Brusch and Joanne Booth had their evening meal.

9. Half an hour or so after Ms. Corby left the unit, Mr. Brusch returned. Ms. Corby herself returned a short time later, bringing with her two persons, Peter Roberts and his girlfriend. Ms. Corby had encountered those two persons at the Nightcliff Hotel. Peter Roberts and Mr. Brusch had known each other some years earlier in Perth. Stanley Brusch and Joanne Booth later left the unit to go to a swimming pool nearby and about half an hour afterwards they returned. Mr. Brusch, Kathleen Corby and the two visitors were still there. According to Stanley Brusch, his brother was drunk. The two visitors left by taxi and Mr. Brusch and Kathleen Corby then left the unit to go to the swimming pool.

10. At about 11 p.m. Stanley Brusch went upstairs to bed, leaving Joanne Booth downstairs watching television. She joined him about half an hour later. Mr. Brusch and Kathleen Corby had not then returned to the unit.

11. Some ten minutes after Ms. Booth joined Stanley Brusch in the bedroom, Mr. Brusch and Ms. Corby returned. Stanley Brusch and Joanne Booth heard them arguing. Ms. Corby was crying; Mr. Brusch was shouting and swearing. Stanley Brusch said he heard the sound of somebody being hit. Joanne Booth heard the sound of a fist on a number of occasions. She said "It just seemed sort of to go on forever. We were just waiting - wishing it would stop".

12. Stanley Brusch and Joanne Booth decided to leave the unit and they packed some things in suitcases. Stanley Brusch carried the suitcases to the verandah of the unit and from there to the roof of the carport. He found the cases too heavy to handle and returned to the verandah. Ms. Booth was with him.

13. Stanley Brusch and Joanne Booth returned to their bedroom. To do so they had to pass the bedroom occupied by Mr. Brusch and Ms. Corby. By this time Mr. Brusch and Ms. Corby had left the livingroom downstairs and gone to their bedroom. Later Stanley Brusch and Joanne Booth heard a sound which the former described as "the sound of my rifle being - being - the lever action being manipulated" and the latter as "the sound of a rifle being clicked". The sound came from downstairs. Stanley Brusch and Ms. Booth left their bedroom and went once more to the verandah. The former got to the ground, partly by climbing down a pillar and partly by jumping. The latter got onto the roof of the carport and crossed to the bedroom of an adjoining unit. She remained with the occupier of the unit for a time. Some five to ten minutes later she heard a shot and the occupier rang the police.

14. When Stanley Brusch reached the ground, he went around to the rear of his unit and looked through the window. He had a back view of the upper half of his brother's body. Mr. Brusch was sitting in a chair with Ms. Corby sitting in a chair two to three feet from him. Mr. Brusch was holding the rifle in the port position. Stanley Brusch moved back from the window and returned to its righthand side. He then saw the rifle appear to go down between his brother's legs and saw his brother put the barrel of the rifle in his mouth. He heard Ms. Corby plead with his brother, saying "Don't, Ernie" and then saw his brother bring himself up off the rifle so that he was sitting upright in the chair. Stanley Brusch did not at that point see the rifle but very soon afterwards heard the sound of it being discharged. He moved away from the window then returned to see his brother running around the loungeroom, still holding the rifle. The Winchester was a lever-action rifle and Stanley Brusch saw his brother working the ejecting mechanism. He demonstrated this to the jury in what was described by the trial judge as a "rapid operation of cocking lever". Stanley Brusch ran out onto the road and flagged a passing vehicle. Mr. Brusch drove away in his car.

15. In cross-examination Stanley Brusch elaborated on events as he saw them through the kitchen window. He said that when he saw his brother's head go down apparently over the muzzle of the rifle, he became alarmed that he was going to blow his head off. He heard nothing to lead him to think that his brother intended any harm to Ms. Corby.

16. Mr. Brusch did not give evidence at his trial but during the hearing his counsel formally admitted on his behalf "that the muzzle of the firearm was approximately 3 inches from the right temple of the deceased at the time that it discharged."

17. When he left the unit Mr. Brusch drove to a caravan belonging to a friend David Groombridge. He gave an account of what had happened to Mr. Groombridge. Early on the morning of Saturday, 29 December he spoke to Detective Moseley and shortly afterwards spoke to the detective again at Darwin police station. Later that day he was interviewed by Detective Jones and the following morning he spoke again to Detective Moseley. Counsel for the appellant pointed to variations in the accounts given by Mr. Brusch of how the firearm had come to be discharged. It is true that there are variations but the view taken by the trial judge was that the jury must have concluded that the rifle was discharged while Mr. Brusch was attempting to uncock it, not by using the lever but by depressing the hammer with his thumb. That being a view which in all the circumstances the jury was entitled to take and being the basis upon which the trial judge approached the question of sentence, we are of the opinion that we should approach the matter in the same way.

18. His Honour began his remarks on sentence by saying:

"In reaching a verdict of manslaughter as distinct from
murder, the jury must have concluded that you did not
intend to kill the deceased, or to cause her grievous
harm. Nevertheless, the jury must have concluded that
in proceeding to uncock the rifle in all the
circumstances, you must have foreseen her death, or
grievous bodily harm to her, as a possible consequence
of your conduct. Moreover, that a reasonable person
similarly circumstanced, and having such foresight,
would not have proceeded to have done so".

19. Counsel for the appellant criticised the reference to "grievous bodily harm", submitting that this was both wrong in law and inconsistent with the direction that his Honour had given to the jury. However this reference may have been inadvertent. In dealing with manslaughter as an alternative verdict, his Honour had said to the jury:

"So even if the accused did not intend to shoot the
deceased, if you find that he did foresee that death
might result as a possible consequence of his conduct
in discharging the rifle, it would still not be
unlawful if in all the circumstances a reasonable
person, placed in the position of the accused in those
circumstances and having the same foresight he had,
would still have conducted himself as he did."
(emphasis added).

20. Counsel for the appellant invited the Court to contrast the ingredients of manslaughter under s.163 of the Criminal Code with the comparable offence under the Criminal Law Consolidation Act which the Code repealed. The object of this exercise was, as counsel submitted, to conclude that under the Code there can be no offence of manslaughter, at least in circumstances comparable to those in the present appeal, unless the accused foresaw death as a possible consequence of his conduct whereas, it was said, foreseeability of death or grievous bodily harm was the relevant ingredient of manslaughter under the earlier legislation. See Reg. v. Crabbe (1985) 58 ALR 417. The argument was that sentences imposed for manslaughter under the Criminal Law Consolidation Act may not be an appropriate guide to sentences under the Code for some conduct constituting manslaughter under the earlier legislation would now only constitute an offence under s.154 of the Code. That section deals with dangerous acts or omissions and, subject to the question of intoxication, imposes a maximum penalty of imprisonment for ten years where death is caused.

21. We do not think it necessary or appropriate to pursue this matter. In particular, in the absence of a challenge to his Honour's direction to the jury, it is undesirable to discuss the ingredients of manslaughter under the Code. Mr. Brusch was convicted of manslaughter for which the Code prescribes a maximum penalty of life imprisonment. It is the seriousness of his conduct as found by the jury that is to be measured, along with such other considerations as may be relevant. That is not to say that some reference to sentences in other cases of manslaughter, both within the Northern Territory and elsewhere, may not be useful. But the utility of such a reference is to be found in the indication it gives (if it be the case) of a prevailing tariff or range of sentences for comparable conduct. It is not to be found in a comparison of single instances.

22. In our view the proper factual basis for approaching the question of sentence was that Mr. Brusch determined to kill himself or, more likely, threatened to do so to gain sympathy from Ms. Corby or perhaps persuade her to some course of action. He loaded and cocked the rifle, placed the butt on the ground and put his mouth over the barrel. At Ms. Corby's insistence, he took his mouth from the barrel, brought the rifle into the port position and attempted to uncock it by depressing the hammer. He did so while the muzzle of the rifle was some three inches from Ms. Corby's head, his conduct thereby amounting to criminal negligence in circumstances where he must have foreseen the possibility that Ms. Corby's death might result from his actions.

23. We are of the opinion that the head sentence of seven years was neither manifestly inadequate (as the appellant contended) nor manifestly excessive (as the respondent contended). It was, we think, within the permissible range of sentences that might have been imposed. The respondent was guilty of appalling negligence in handling the rifle in the way that he did with Ms. Corby so close. However, given his acquittal on the charge of murder, it must be accepted that he had no intention to kill Ms. Corby or to do her grievous bodily harm. He was undoubtedly in a highly emotional state; just how far that was brought about by the consumption of alcohol can only be a matter for speculation. Certainly he inflicted violence on Ms. Corby before her death. She showed no signs of any injuries before she and Mr. Brusch went to the swimming pool on the evening in question. Both Stanley Brusch and Joanne Booth heard noises consistent with Mr. Brusch striking Ms. Corby. Dr. Cooney, who carried out the post-mortem, observed, in addition to the gun-shot wound, small bruises and swelling on the face over the outer aspect of the left eye and the left upper lip. His conclusion was:

"They could be consistent with someone being punched;
perhaps backhanded. Positively not slapped with the
open hand. I think the knuckles and the backhand might
give that type of an injury, or any object that wasn't
particularly hard. I mean I don't think there's an
object involved like that - a stick, or instrument of
that nature".

24. What gave rise to Mr. Brusch's emotional state on the evening of 28 December is not known with any certainty. There had been arguments between him and Ms. Corby earlier that day but those arguments do not appear to have been of a serious nature. It may be that his state was a reflection of tension in the relationship between the two persons. There was no evidence of earlier quarrels or violence although the antecedent report says of the relationship that it "appears to have had its problems". This statement, apparently based on information supplied by Mr. Brusch, is not elaborated.

25. Mr. Brusch was born in Hobart and spent most of his life there. He, as did Ms. Corby, belongs to a well-known Tasmanian family. He left school at the age of fifteen and began work as an apprentice electrician. He gave this up after a few months and for the next six years worked for his father in the hotel business. Since then he seems to have followed a somewhat nomadic lifestyle, travelling around Australia and working in various jobs. In sentencing Mr. Brusch, his Honour referred to evidence given by Mr. Hodgman, Q.C., M.P. who spoke of Mr. Brusch's general reputation for honesty and integrity.

26. Counsel for Mr. Brusch provided the Court with a schedule of sentences for manslaughter imposed in the Supreme Court of the Northern Territory sitting at Darwin since 1 January 1982. Counsel submitted that in only four of the cases noted had there been a head sentence heavier than that imposed on Mr. Brusch. Some sentences were as high as twelve years, some as low as three years and one or two even lower. We have found this schedule useful in giving us a picture of the view taken by judges of the Supreme Court of the Northern Territory to sentences for manslaughter in a variety of situations. In our view, the head sentence imposed by his Honour was not inconsistent with the approach shown in those decisions. As we have said, it was within the permissible range and we see no justification for interfering with it.

27. Having determined upon the head sentence, his Honour fixed a non-parole period and directed Mr. Brusch's conditional release at the end of that period in the manner indicated earlier in these reasons. In our view, that course was not open.

28. Sub-section 4(1) of the Parole of Prisoners Act requires a court sentencing an offender to a term of imprisonment of twelve months or longer to specify a lesser term during which the offender is not eligible to be released on parole. However sub-s.4(5) reads:

"(5) For the purposes of this section, a reference to a
term of imprisonment to which an offender is
sentenced shall be read as including a period that
an offender is ordered to undergo imprisonment
under section 12(2) and a term of imprisonment that
an offender has been committed to undergo under
section 6 of the Criminal Law (Conditional Release
of Offenders) Act, but shall not be read as
including a term of imprisonment in respect of
which an order has been made under section 5(1)(b)
of that Act".

29. The effect of sub-s.(5) is, we think, that once an order has been made under the Criminal Law (Conditional Release of Offenders) Act for conditional release, there is no term of imprisonment for the purposes of s.4 of the Parole of Prisoners Act, hence no term in respect of which a non-parole period may be fixed. Counsel for Mr. Brusch did not argue against this view of the relationship between the two statutes. Counsel had argued, at the trial, for the suspension of the entire head sentence but that was a course his Honour was not prepared to take and it was not urged before us that he was wrong in so declining.

30. It would, of course, have been possible for his Honour to have sentenced Mr. Brusch to imprisonment for seven years and to have directed that after he had served two and a half years of his sentence, he be released upon his giving security in accordance with sub-s.(5)(1)(a) of the Criminal Law (Conditional Release of Offenders) Act. The question now for the Court is whether conditional release is appropriate after Mr. Brusch has served part of his sentence or whether it is preferable to approach the matter in terms of a non-parole period. In our view the latter is the appropriate approach to take, having regard to the seriousness of the offence. While it is true that release under the Criminal Law (Conditional Release of Offenders) Act is conditioned upon the offender giving security to be of good behaviour for such period as the court specifies in the order and to comply with such conditions as the court thinks fit to specify in the order, conditional release takes effect automatically at the time specified by the court so long of course as the offender is prepared to enter into the required recognizance. We endorse his Honour's approach that Mr. Brusch should be given the opportunity of proving himself capable of resuming a responsible attitude to life but we think that can best be achieved by the imposition of a non-parole period and an assessment at the relevant time by the Parole Board of his eligibility for release on parole.

31. Where the Crown appeals against sentence, considerations may arise that are not present in the case of an appeal against sentence by a convicted person. Reg. v. Tait and Bartley (1979) 46 FLR 386; Reg. v. Stach (1985) 5 FCR 518. This is particularly so when the Crown seeks the imposition of a custodial sentence in lieu of a non custodial one. There was of course a non custodial element in the sentence imposed by his Honour but it arose only after a term of imprisonment had been served and it reflected an error in approach to the relationship between non-parole periods and periods of conditional release. We are of the firm view that an order for conditional release in the present case, even in respect of part of the sentence, would fail to give adequate recognition to the ultimate purpose of criminal sanctions as the protection of society from conduct which the law proscribes Channon v. The Queen (1978) 20 ALR 1.

32. Incidentally when, as in this case, conditional release is subject to the offender entering into a bond to be of good behaviour for a period less than the balance of the head sentence to be served, it would seem that once the period of the bond has passed, there is no means by which an offender may be returned to prison if he ceases to be of good behaviour during the remaining period. In our view, it is undesirable for the Court to lose control of the situation in that way.

33. His Honour fixed a non-parole period of two and a half years. It was suggested to the Court that in the Northern Territory non-parole periods tend to equate one half of the head sentence. If that be so as a general proposition, it seems to be less true of sentences for manslaughter. The schedule of sentences for manslaughter provided to us shows varying relationships between head sentences and non-parole periods. Nevertheless it is apparent that if a non-parole period approaches too closely the time at which a prisoner will be released in accordance with his entitlement to remission (in the Northern Territory, one third of the head sentence), there would be little incentive for a prisoner to apply for parole release. In Bain v. The Queen (1983) 47 ALR 472 at 475 a Full Court of this Court spoke of "the desirability of a non-parole period being duly proportioned to the head sentence and of it not being so close to the remission date as to make it unlikely that a prisoner would seek parole". See also Reg. v. Eckhardt (1971) 1 SASR 347; Rich and Bourke v. The Queen (unreported decision of Full Court of Federal Court delivered 7 September 1981); Antoniazzi and Smith v. The Queen (unreported decision of Full Court of Federal Court delivered 10 May 1985).

34. We have given careful consideration to the appropriateness of the period of two and a half years fixed as the non-parole period by the trial judge. If Mr. Brusch qualifies for ordinary remissions, he will in any event be released after serving a term of four years and eight months. Thus a non-parole period much in excess of three and a half years would be inconsistent with the principle expressed in the authorities to which we have referred. On the other hand, the non-parole period must also give effect to the purposes for which punishment is imposed. As King C.J. pointed out in Reg. v. Creed (1985) 37 SASR 566 at 568:

"The non-parole period, no less than the head sentence,
must reflect the basic consideration of justice that
the punishment should fit the crime, having regard both
to the offence and the offender, and it must reflect
the community's sense of justice, what in some of the
cases is called 'the moral sense of the community'.
For that reason alone the non-parole period, no less
than the head sentence, should be properly
proportionate to the gravity of the crime."

On that approach it may be said that a non-parole period of two and a half years was the least that could have been imposed in the circumstances of the present case. In our view, an appropriate non-parole period might lie anywhere between two and a half years and three and a half years. On that view it cannot be said that the period fixed by his Honour was outside the permissible range or that it reflects any error in the sentencing process.

35. In the circumstances the sentence imposed by the primary judge should be varied by deleting the direction that Mr. Brusch 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 should each be dismissed.