Gregory John 'Bluey' Brazel is a convicted
Australian arsonist, armed robber and multiple murderer, currently
serving three consecutive life sentences for the murders of
prostitutes Sharon Taylor and Roslyn Hayward in 1990, and the murder
of Mordialloc hardware store owner Mildred Hanmer during an armed
robbery in 1982 for which he confessed some eighteen years later.
Brazel is often described as one of the most
manipulative and violent prisoners in Victoria's prison system, and
was estimated to be worth more than A$500,000 in 2000. He will be
eligible for parole in 2020.
Enlisted in Australian Army 1974. Trained at 1RTB (Kapooka)
14Platoon B Company. Posted September 1974 to Aust Army medical
training school Healsville Victoria. In 1976, Brazel took five
privates hostage during an army medical corps exercise in Healesville.
Shots were fired before Brazel was persuaded to release the hostages.
He was later dishonorably discharged.
On 28 May 1990, while on early release from prison,
Brazel murdered prostitute Sharon Taylor. Her body was found in a
shallow grave at Barongarook,Victoria, South of Colac on 23 September
On 13 September 1990, Brazel murdered prostitute
Roslyn Hayward at Sorrento. Her body was not discovered until 1
Mildred Teresa Hanmer was shot in the chest on 20
September 1982 during an armed robbery on her Mordialloc hardware and
gift store. She later died in the Alfred Hospital from her injuries.
Her murder remained unsolved until August, 2000.
On 18 August 2000, Brazel voluntarily confessed to
the 1982 murder, seeking to make a deal with police officers that no
life term would be imposed before agreeing to make a statement.
Brazel has continued to regularly offend whilst
imprisoned and is often described as being manipulative and violent.
In November, 1991, Brazel took a staff member hostage while imprisoned
at the HM Melbourne Assessment Prison when he learned of his impending
transfer to HM Prison Pentridge.
In 2003, Brazel conned an elderly woman into
deposting more than A$30,000 into a TAB telephone betting account for
his own personal use. In 2006, Brazel was awarded A$12,000 in damages
in an out of court settlement after suffering a violent attack with a
broken bottle whilst imprisoned at Melbourne's privately operated Port
Phillip Correctional Centre in Laverton in May, 2001. In October 2006,
Brazel was caught collecting personal information relating to senior
of criminal convictions
During the period of March 1983 until August 2000
Brazel was convicted of 37 offences from fifteen court appearances.
Offences since 1992 occurred while Brazel was in prison custody apart
from the 2005 conviction for murder which occurred in 1982.
Contempt of court
Sentenced to 2 years imprisonment
Sentenced to 6 years imprisonment
Sentenced to 20 years imprisonment
Reduced to 17 years on appeal
Sentenced to 20 years imprisonment
Threating to kill
Sentenced to 7 years imprisonment
Sentenced to 2 years imprisonment
Sentenced to 2 years imprisonment
22 March 2005
Sentenced to life imprisonment
Convicted killer to face new charge
By John Silvester
July 5, 2002
One of Australia's most notorious killers is about
to be charged with the 20-year-old murder of a woman who was shot
during an armed robbery in Mordialloc.
Gregory John Brazel, who has already been convicted
of the murders of two women, is to be charged with killing Mildred
Teresa Hanmer, 51. She was shot in the chest in her Warren Road
hardware shop on September 20, 1982, and died two hours later.
Brazel, 43, is expected to be charged within days.
He was first interviewed about the murder nearly
two years ago and has been questioned several times since. It is
believed he has admitted to detectives that he was the gunman.
Some of the original investigators were reassigned
to the case and reinterviewed witnesses before a decision to charge
Brazel was made this week.
Mrs Hanmer's husband Richard was at home in Mount
Eliza recovering from a hernia operation when his wife rang on the day
of the shooting. She could only say: "Dick, I've been robbed and I'm
She collapsed but Mr Hanmer could still hear her
gasping and moaning on the open telephone line. The mother of three
was found by a hairdresser who entered the shop after hearing shots.
The hardware shop was a State Bank sub-agency and
the bandit stole $2569 from two safes. Both were opened with keys.
Before Mrs Hanmer died she managed to describe the
gunman, telling police he had ginger hair.
Brazel has been known for years as "Bluey" because
of his distinct ginger hair. He has long been considered one of the
most dangerous inmates in the Victorian prison system and is usually
shackled when taken to court.
The former altar boy and son of a New South Wales
detective has more than 75 criminal convictions and a prison record
involving at least 25 violent offences. These include stabbing three
prisoners in separate attacks, breaking the noses of two prison
officers, assaulting police, setting fire to his cell, cutting off the
tip of his left ear, going on a hunger strike, threatening to kill
staff, pushing a governor's head through a plate-glass window and
using jail phones to intimidate witnesses.
In one of his brief periods of freedom since 1978,
Brazel killed two women near Colac. Detectives believe he knew he was
under investigation for the first murder and killed his second victim
purely to taunt the investigators.
He was found guilty of killing prostitutes Sharon
Taylor and Roslyn Hayward, whose bodies were found in shallow graves
near Colac in 1990. He was sentenced to 30 years with a minimum of 25.
In 1976, while in the army medical corps, he took
five privates hostage during an exercise in Healesville. He fired
shots during the siege before a captain persuaded him to give up. He
was dishonourably discharged from the army.
A confidential police report on Brazel said: "He is
cunning and sly and could never be trusted."
He held a Melbourne Remand Centre staff member
hostage with a knife to his throat in November, 1991. Brazel threat-ened
to kill Gunther Krohn because of a decision to transfer him from the
Remand Centre to Pentridge but finally surrendered after a three-hour
He has a history of setting fire to his cells and
has been caught at least three times with smuggled mobile telephones
inside maximum-security divisions.
Brazel lost his position as Victoria's most feared
prisoner after he was bashed and seriously injured by by fellow
inmates in 1998.
But police say he is still violent and erratic. He
has been assessed as one of the state's highest-risk inmates and is
kept in the Barwon Prison's top-security Acacia Unit. His earliest
release date is 2020.
Mrs Hanmer was a triple certificate nurse and her
husband an engineer. They had decided to open their own business and
agreed that if they were ever robbed, they would cooperate and not
risk their lives.
Police interviewed more than 1500 people during the
Supreme Court of Victoria - Court
R v Brazel  VSCA 56 (22 March 2005)
Gregory John Brazel
No. 99 of 2003
1 Mildred Teresa Hanmer was murdered in 1982. The
crime remained unsolved for 18 years. Then, in August 2000, the
applicant, a prisoner at Port Phillip Prison, took the initiative in
voluntarily confessing that he was the murderer. He participated in
an interview extending over two-and-a-half hours and made a full
statement, revealing that the murder was a contract killing. His
identification of the principal was not established but, putting
that to one side, detailed investigations corroborated his statement.
The learned sentencing judge accepted that that was so and accepted
that the applicant came forward through a genuine sense of
contrition. His Honour described the applicant’s remorse as genuine
2 In December 2002 the applicant was committed to
stand trial. The matter proceeded by way of a contested hearing of
one day’s duration, during which two witnesses were called. The
applicant indicated that he would plead guilty. He was arraigned in
the Trial Division on 14th February 2003 and did plead
guilty. He admitted 21 previous convictions from six court
appearances between October 1977 and July 1981. He was sentenced to
six years and nine months' imprisonment with a minimum term of three-and-a-half
years for armed robbery and other offences in October 1978. He was
on parole for those offences at the time he committed the murder.
Although it is not recorded in the return of prisoners, the judge
ordered that, if the Parole Board now cancelled that parole, the
unexpired portion of that sentence be served concurrently with the
sentence he imposed.
3 The applicant had also committed subsequent
offences. I gratefully adopt the judge’s summary of them in the
sentencing remarks. Addressing the applicant, his Honour said:
"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
4 As a result of the 1992 and 1993 sentences for
murder and sentences for other offences whilst in custody, at the
time the applicant came forward and confessed to this crime he was
serving a total effective term of 34 years' imprisonment and,
putting aside prison management deductions, he would not become
eligible for parole until 24th February 2020. He would
then be aged 65. After hearing a plea for leniency, at which the
applicant appeared in person, he was sentenced for this offence on
28th March 2003 to be imprisoned for the term of his
natural life. A new single non-parole period of 27 years’ was fixed.
His Honour explained to the applicant that the sentence, including
that non-parole period, would operate from the day on which it was
imposed. He would therefore be 75 when he became eligible for parole.
5 The applicant seeks leave to appeal against
sentence on the grounds, first, that in all the circumstances the
sentence is manifestly excessive and, secondly, that the judge
failed to honour an alleged agreement between the Director of Public
Prosecutions and the applicant not to have a life sentence imposed.
6 On 13th February 2004 a single judge
of appeal refused leave to appeal pursuant to s.582 of the Crimes
Act 1958. The applicant gave notice that he elected to have his
application heard by the Court of Appeal. Medical and security
considerations delayed the hearing of that application, which came
on before us on 23rd February 2005. The applicant did not
appear before the single judge but relied on a written submission.
He did appear in person before us and the Director of Public
Prosecutions appeared with Mrs Quin for the Crown. We had a much
better opportunity to investigate the applicant’s complaints and
consider his submissions. We were also provided with the summary
prepared by the police following the applicant’s statement, which I
shall call "the police summary", and a summary of all the
sentences imposed for murder in Victoria from 1986 to the present.
7 Before turning to the applicant’s submissions,
I shall say a little more about the circumstances of the offence and
of his confession. On 20th September 1982 Mrs Hanmer,
aged 51, was working alone in a hardware and giftware store that she
and her husband owned and operated at 77 Warren Road, Mordialloc.
The store also operated a State Savings Bank sub-agency and a dry
cleaning depot. At approximately 12.50 p.m. a person who lived
behind the shop next to No. 77 heard a noise that she described as a
loud bang and the voice of a woman calling for help. She entered the
hardware and giftware store and discovered Mrs Hanmer grievously
injured and lying on the floor. The ambulance and police were called.
8 In the meantime the victim had telephoned her
husband at their home in Mt Eliza. He had not gone to work that day
because he was recovering from a hernia operation. He said that his
wife was gasping on the telephone and finding it difficult to speak
but managed to say, "Dick, I’ve been robbed and I’m dying." The
ambulance and police officers found Mrs Hanmer bleeding from an
apparent gunshot wound to her upper body, but she was still
conscious and capable of some conversation. She described her
attacker as being a man aged around 25, five feet seven inches tall
and with ginger hair. She described the firearm he was carrying and
said that he left through the front door. Mrs Hanmer was treated at
the scene and then conveyed by ambulance to the Alfred Hospital,
where she died at 3.20 p.m. She had been shot once in the right
chest between the second and third ribs. The pathologist who
conducted the post mortem examination concluded that she had been
shot from the front.
9 Notwithstanding an extensive police
investigation, the murder remained unsolved until the applicant
confessed. On 18th August 2000, at his request, Detective
Senior Constable Gerard Hockey attended Port Phillip Prison to speak
with him. The applicant had confidence in Mr Hockey from an occasion
when, in 1998, he had investigated an assault on the applicant in
the Acacia Unit of Barwon Prison. The applicant told Mr Hockey that
he wished to confess to the murder of a woman at a hardware store in
Mordialloc in 1982. On 31st August 2000 he was conveyed
to the offices of the Homicide Squad, where he participated in the
interview to which I have already referred and, at the conclusion of
the interview, made a full statement.
10 The applicant told the interviewing police
that he entered the store at around lunch time, carrying a .22 rifle
hidden behind a sports bag. He approached the deceased and asked her
to cut a key for him. Whilst she was occupied with that task, the
applicant closed and locked the front door and turned a sign around
to read "Back in five minutes". He confronted the deceased with the
rifle, stated that it was an armed robbery and demanded money. He
obtained in excess of $3,000 from the safe and cash register. He
then told the deceased to lie on the ground as he was going to tie
her up. While she was lying on the ground, the applicant discharged
a single bullet into her back. A homemade silencer on the firearm
failed and "when the gun went off it sounded like a cannon". The
applicant said that he remembered that blood was seeping through the
deceased’s clothing and knew that she was critically injured and
would not survive. All he wanted was to get away. He did not waste
time reloading and firing another shot.
11 In his interview the applicant told police
that he had been offered $30,000 to murder the deceased. He said a
former prison inmate had given him the name of the person who wanted
her killed. The applicant claimed that that person was the husband
of the deceased. Apart from that, police investigations confirmed
the applicant’s account. Moreover, a forensic scientist analysed the
clothing worn by Mrs Hanmer and confirmed that, contrary to the
opinion of the pathologist who conducted the autopsy in 1982, she
had been shot from behind as the applicant said. The part of his
account that the police rejected was the identity of the person who
allegedly engaged the applicant and, it would appear from the
portions of transcript set out below, other aspects of the contract
killing. In his victim impact statement, tendered on the plea, Mr
Hanmer said that the allegation against him filled him with disgust
and anger. The rejection of that part of the applicant’s statement
is to be borne in mind as background to the stance adopted by the
Crown on the plea.
12 There are two other aspects of the applicant’s
statement to which it is necessary to refer. In the first paragraph
he said that he was making it of his own free will and not under any
threat or enticement from the police. In the second paragraph he
said that he had been told by Mr Hockey that he had received a
letter from the Director of Public Prosecutions to the effect that
anything the applicant said in the interview could not be used
against him in criminal proceedings. The applicant stated, in that
paragraph, that he did not want that immunity. He wished to tell the
truth and was prepared to accept responsibility for what he had
done. The Director accepted that such a letter had been sent to Mr
13 In his written and oral submissions the
applicant emphasized the second ground of appeal. He said that he
had had to disclose all the details, including the fact that it was
a contract killing, thereby placing the crime in one of the worst
categories of murder. The letter of immunity had been offered to
enable him to disclose the full facts without putting his offence in
that category. He had waived the offer of immunity and pleaded
guilty and appeared unrepresented before the learned sentencing
judge in reliance on an understanding with the Crown that he would
not receive a life sentence and that the Crown would ask for no more
than five years to be added to his existing sentence.
14 He said that that understanding was confirmed
in a telephone conversation the day before the plea and that it was
evidenced by the following passage in the police summary:
"On the 2nd of October, 1998, the
accused Gregory John Brazel was assaulted in the Acacia Unit of Barwon
Prison. This assault was investigated by Detective Senior Constable
Gerard Hockey of the Corio Criminal Investigation Branch. On 18th
August 2000, Hockey attended at Port Phillip Prison and spoke to
Brazel. This was as a result of a request by Brazel to speak to Hockey.
In this conversation with Hockey, Brazel indicated that he wished to
confess to the murder of a female at a hardware store in Mordialloc in
1982. He stated that prior to participating in a taped record of
interview, he required an assurance from the Director of Public
Prosecutions that as a result of any subsequent sentence being imposed
in relation to this crime, a life sentence would not be sought. He
further stated that he wished to appear before Justice Cummins and he
wished the interview be conducted outside the prison system.
On 28th August 2000, Chief Crown
Prosecutor Paul Coghlan provided a letter to Hockey stating that any
statement which Brazel provided in relation to the murder may be
provided on the basis that it will not be used in evidence against him.
Further, that if Brazel were to plead guilty to one count of murder,
it would be the Crown’s submission that although an additional term
should be added to his present minimum term, he would still be a
person in respect of whom a minimum term should be fixed." (Emphasis
15 The plea began on 14th February
2003, when Mr Morgan-Payler, Q.C. appeared for the Crown, and
continued on 14th March 2003. On that date Mr Morgan-Payler
was part-heard in another case and Mr Elston appeared in his stead.
Reverting to the language of the police summary that I emphasized in
above, the Crown did not, on either occasion, seek a life sentence
and, on both occasions, the prosecutor submitted that the applicant
was still a person in respect of whom a minimum term should be fixed.
16 In addition, the Crown submitted that his
Honour could not be satisfied beyond reasonable doubt that this was
a contract killing. The following exchange occurred on 14th
"MR MORGAN-PAYLER: May I say this, Your
Honour: that matter has been extensively investigated. For the
purposes of these proceedings if this killing were a paid
execution that would be an aggravating factor in my submission
to Your Honour.
HIS HONOUR: Of course.
MR MORGAN-PAYLER: Being an aggravating factor
that is something Your Honour would have to be satisfied of
beyond reasonable doubt. Without canvassing the details, I
simply submit to Your Honour that on the material available,
both in the depositions and further material that I choose not
to advance in respect of these proceedings, Your Honour would
not be so satisfied of that matter.
HIS HONOUR: What other rational hypothesis is
open, if any?
MR MORGAN-PAYLER: An armed robbery that had
gone wrong, or a killing committed as a planned or an accidental
consequence. In that a - - -
HIS HONOUR: What is the Crown’s position,
does it say (a) it rejects Mr Brazel’s explanation for the
reason behind the killing and (b) it doesn’t advance any
particular hypothesis because of the lack of evidence; or what
does it say?
MR MORGAN-PAYLER: The Crown does not advance
any particular hypothesis because of a lack of evidence. May I
simply assert in a general manner that where the Crown has
endeavoured to pursue the hypothesis advanced by the prisoner, a
number of matters have been found to be incorrect.
HIS HONOUR: We will come - - -
MR MORGAN-PAYLER: Unless pressed, I don’t
want to go into that. Suffice it to say as distinct from the
details of the killing itself, where investigators were able to
independently confirm those details; where possible in respect
of the motive behind the killing and a number of areas there,
the account given by the prisoner has been shown to be
inaccurate or false.
HIS HONOUR: We may or may not come to those
in due course. I will wait upon what Mr Brazel would like to say
in writing first and we can revisit this matter if we need to.
MR MORGAN-PAYLER: Yes. In a way that works to
his advantage, in that in my submission if Your Honour had not
been satisfied, and I submit Your Honour would not on the
materials available, if Your Honour had been satisfied it was a
paid execution, Your Honour would regard it as a far graver
example of the crime of murder rather than a killing in the
course of an armed robbery, which of it itself is a serious
example of the crime, but perhaps not as serious as the scenario
advanced by the prisoner.
HIS HONOUR: Well - - -
MR MORGAN-PAYLER: The Crown says other than
the fact you can be confident that the prisoner killed the
deceased and you can accept his admission that he had a
murderous intent at the time he did so, Your Honour really can
probably not further reliably find facts on the material
presently available to you."
17 At the end of that exchange the judge observed
that what Mr Morgan-Payler had said might or might not be right. He
raised the matter with Mr Elston when the plea resumed and the
following exchange took place:
"HIS HONOUR: Mr Morgan-Payler put to me on
the last occasion that I could take a view of the facts here
that this was an armed robbery gone wrong and Mr Morgan-Payler
commended that view of the facts to me in part because it would
assist Mr Brazel because normally an armed robbery gone wrong
would receive a lower penalty than an execution for an external
Now that’s not what Mr Brazel says and what I’m putting to you
is do you wish to maintain that hypothesis to me and if so, is
there any evidence to support it?
MR ELSTON: The hypothesis put was at the
bottom of p.17 by Mr Morgan-Payler, but it did not advance any
particular hypothesis because of a lack of evidence. That
position is still the one maintained by us.
HIS HONOUR: All right, I follow that. Then do
you concede that it is relevant in imposing sentence upon Mr
Brazel that if properly on the evidence a conclusion could be
reached that an execution for an external principal on the one
hand and an armed robbery gone wrong on the other would normally
attract somewhat different sentences?
MR ELSTON: Yes.
HIS HONOUR: But your submission is I can’t
discriminate on the evidence as to – I can’t conclude on the
evidence as to what the true situation is.
MR ELSTON: Yes, there’s no evidence which –
it’s virtually an aggravating feature which you’d need to be
satisfied to a circumstance about and there is nothing to assist
you in that regard.
HIS HONOUR: Well, one thing that assists me
is Mr Brazel has told the truth about everything else.
MR ELSTON: Well, in so far as the other
aspects of it are concerned, I can certainly say there has been
a full and very exhaustive investigation and but for his
confession as to him being involved, this could have remained an
unsolved matter and even taking into account his confession
there is still an exhaustive inquiry that had taken place and
subsequently occurred and nothing further was forthcoming,
dealing with that aspect of it."
18 The applicant submitted that, if his Honour
had read all the material in the depositions, as he did, he would
have learned from the police summary that there was an agreement
that the applicant would not receive a life sentence and that the
Crown would ask that no more than five years be added to his
existing sentence. The difficulty with that submission is that an
agreement in those terms, or even to that effect, is not revealed by
the summary. It showed that a life sentence would not be sought.
The Crown did not seek a life sentence and it invited the judge to
take a view of the facts that might have enabled a determinate
sentence to be imposed. Further, the summary showed that it would be
the Crown’s submission that the applicant was still a person in
respect of whom a minimum term should be fixed. That was the Crown’s
position at the plea.
19 The applicant argued eloquently, both in his
written and oral submissions, that he was in an impossible dilemma.
The only way that he could make a full confession and persuade the
authorities of its truth was not simply to admit that he killed Mrs
Hanmer but also to give chapter and verse for the circumstances,
thereby bringing his offence into one of the worst categories of
murder. He was offered immunity to facilitate the necessary
investigations but waived that immunity. The Crown left it open to
the judge to take a more favourable view of the facts, but his
Honour declined to do so. I do not stay to consider what course I
might have taken in the light of the Crown’s concessions had I been
the sentencing judge. In my opinion, we are bound by the finding his
Honour made, which was open to him and is not challenged.
20 On the material to which it is proper for us
to have regard on this application, we cannot uphold the second
ground of appeal, but it is still incumbent upon us to consider the
first ground. Only a little was said about it in the applicant’s
written submissions and nothing in his oral submissions. Indeed he
went so far as to say that he could accept an additional ten years
provided he was not given a life sentence. Nevertheless, as the
Director properly conceded, we must consider for ourselves whether
either the head sentence or the non-parole period is manifestly
21 One of the principles to be applied appears
from the following passage in the judgment of Street, C.J., with
whom Hunt and Allen, JJ. concurred, in R. v. Ellis:
"When the conviction follows upon a plea of guilty,
that itself is the result of a voluntary disclosure of guilt by the
person concerned, a further element of leniency enters into the
sentencing decision. Where it was unlikely that guilt would be
discovered and established were it not for the disclosure by the
person coming forward for sentence, then a considerable element of
leniency should properly be extended by the sentencing judge. It is
part of the policy of the criminal law to encourage a guilty person to
come forward and disclose both the fact of an offence having been
committed and confession of guilt of that offence.
The leniency that follows a confession of guilt in
the form of a plea of guilty is a well recognised part of the body of
principles that cover sentencing. Although less well recognised,
because less frequently encountered, the disclosure of an otherwise
unknown guilt of an offence merits a significant added element of
leniency, the degree of which will vary according to the degree of
likelihood of that guilt being discovered by the law enforcement
authorities, as well as guilt being established against the person
22 As Street, C.J. said, the leniency that
follows a plea of guilty is well recognized. In the first place,
such a plea has utilitarian value. Secondly, it may evidence remorse.
Both those factors were operating here, but there was the additional
factor that, although it was known that the offence had been
committed, it was not known that the applicant was the offender and
his guilt would not have been revealed but for his coming forward
and confessing. In oral argument the applicant made the point that
he had pleaded not guilty to the murders he committed in 1990, so
that he had attracted none of the principles to which I have just
referred, but on both occasions he received a determinate sentence.
It was ironic, he submitted, that, having done the right thing this
time, he should be visited with a life sentence.
23 The Director’s response was that, but for the
applicant’s confession and plea of guilty, the appropriate sentence
would have been life without parole. Although the applicant’s other
convictions for murder were subsequent offences, they were still
antecedents. The applicant would have stood to be sentenced as a man
without remorse. Due weight had been given to mitigation not only in
the length of the new non-parole period but in the fact that a non-parole
period was fixed. I have carefully considered that submission and
looked at cases where life without parole has been imposed. I accept
that that might well have been an appropriate sentence if the
applicant’s guilt had been discovered independently and denied, but
that hypothetical case highlights the very different circumstances
in which the applicant in fact stood to be sentenced.
24 I shall return to the question whether a life
sentence was still appropriate in those circumstances. It is
convenient to deal first with the non-parole period. I do not repeat
all that the Court said in R. v. VZ, but only that the non-parole
period is the minimum time that the judge determines that justice
requires a prisoner to serve having regard to all the circumstances
of his offence, that it is the public interest that is primarily to
be served and that the non-parole period requires discrete
consideration having regard to all the relevant factors, including
the fact that it has a penal element and that general deterrence
should not be undermined by an unduly short non-parole period.
25 In the present case totality and the need, if
possible, to avoid a crushing sentence were important considerations.
(They are not the same thing. A relatively short sentence may
infringe the principle of totality without being crushing, in the
sense of destroying any reasonable expectation of useful life after
release. Where a crushing sentence cannot be avoided, it does not
infringe totality.) The applicant is now aged 50 and, as the judge
accepted, is in poor health. He would have been eligible for parole
when he was 65. As I mentioned earlier, the effect of the sentence
imposed on 28th March 2003 is that he will not be
eligible for parole until he is 75.
26 The judge summarized the mitigating factors as
follows in his sentencing remarks:
"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
27 It cannot be said that his Honour overlooked
those factors. In such a case, an appellate court must be especially
cautious not to fall into the error of substituting its own opinion
for that of the judge in the absence of error. I have given careful
consideration to that aspect of this application, as well as to the
heinousness of the applicant’s offence and the principles relating
to non-parole periods to which I referred earlier. I differ with
great respect from the learned and very experienced sentencing judge,
but I am persuaded that a shorter non-parole period is necessary
both to do justice to the applicant and to serve the broader aims of
the criminal law.
28 Three points have particularly weighed with me
in reaching that conclusion.
29 First, a life sentence for a man in the
applicant’s state of health coupled with no possibility of release
before the age of 75 is crushing. This is not one of those cases
where a crushing sentence must, unavoidably, be imposed. Secondly,
there is merit in the applicant’s submission that, on the one
occasion when he did the right thing, he was severely punished. The
legal formulation of that submission is to be found in R. v.
Ellis. Thirdly, and very importantly, where a non-parole period
is fixed with an eye to the principle to which Street, C.J. referred,
that is done in the public interest for utilitarian reasons. Few, if
any, prisoners serving long sentences will confess to unsolved
murders unless a discount is given and seen to be given. If a life
sentence is appropriate, that can only be done by fixing a shorter
non-parole period than would otherwise have been the case.
30 It should be emphasized that this is a very
unusual case. It is not just a plea of guilty or a confession. It is
a confession made by a man in prison who already cannot be released
before the age of 65, who waives an offer of immunity and who knows
that his confession will, at the very least, add a number of years
to his existing non-parole period. Such a decision is not easily
made, all the more so in a prison environment where it is unlikely
to be well regarded by fellow prisoners. It is also to be borne in
mind that, if the life sentence stands, the non-parole period is not
the only penalty. The punishment for Mrs Hanmer’s murder is
imprisonment for life together with an extended non-parole period.
It is trite law, reinforced by s.5(2AA) of the Sentencing Act
1991, that the significance of the head sentence is not to be
undervalued by trying to predict what the Parole Board may do.
31 Strictly speaking, that re-opens the
discretion; but I consider that no different head sentence should be
passed. I realize that that will be disappointing to the applicant,
for the whole thrust of his submissions was directed to the life
sentence. It will be no comfort to him for me to say that only a
life sentence would serve the purposes of the law, and the needs of
society, in a case such as this. There is, however, a factor that
was not mentioned on the plea, which makes a life sentence more just
than the applicant may at first be willing to accept. If he had been
sentenced shortly after the murder, he would have been given a life
sentence. Because he did not confess until 2000, he avoided 18 years
of that sentence. If he had not been in prison for other reasons,
they would have been 18 years of his life in which he was at liberty.
A life sentence now is, in truth, life minus 18 years.
32 In turning my mind to the non-parole period
that I should propose, I have not overlooked the fact that, although
the applicant admitted his guilt in August 2000, it was not until
July 2002 that he was formally charged and December of that year
that he was committed to stand trial. In all the circumstances, I
would fix a non-parole period of 22 years to have effect from 28th
33 I would not, I hope, yield to anyone in
recognising the importance of the discretion committed to sentencing
judges and in allowing that discretion the full operation to which
it is entitled. But, despite the dissenting view of Murphy, J. in
R. v. Yates, a sentence which is crushing where that is
avoidable should not be allowed to stand. Whether the non-parole
period here answers that description is, as I see it, the ultimate
question raised by ground 1 in this application. After anxious
consideration I have come to the conclusion that, whilst the non-parole
period would have been well within the sentencing judge’s discretion
in light of all the aggravating and mitigating factors were it not
for the applicant’s age and poor health, those two factors require
the question to be answered affirmatively. To put the matter another
way, his Honour having decided, properly as the Director accepted,
to fix a new single non-parole period, the length chosen is such
that the two factors mentioned mean that, even if parole is granted
as soon as the applicant becomes eligible, there cannot be any
meaningful expectation of any useful life after conditional release.
34 For these reasons and those given by Callaway,
J.A. (whose judgment I have had the benefit of reading in draft) I
agree with the disposition his Honour proposes.
35 I gratefully adopt the statement of the facts
and relevant principles of law set out in the judgment of Callaway,
J.A. which I have had the benefit of reading in draft form.
36 I agree that the second ground upon which the
application is based should not be upheld. In relation to the first
ground, I also agree that the learned sentencing judge did not err
in imposing a head sentence of life imprisonment upon the applicant.
However, I regret that I am unable to agree that the judge erred in
fixing a new non-parole period of 27 years.
37 A sentence of life imprisonment with no
prospect of release before the age of 75, imposed on an applicant in
ill health, may properly be described as "crushing" because it
"connotes the destruction of any reasonable expectation of useful
life after release". However, a crushing sentence will not be
manifestly excessive on that ground alone if an "offender has by his
criminal act or acts forfeited his right to any such hope or
expectation." I am not satisfied that this was not such a case, in
light of the heinous nature of the offence, a contract killing
committed whilst on parole, and the numerous serious crimes (including
the two murders) in respect of which the new minimum term was being
38 In my opinion, bearing in mind the need for
general deterrence and retribution and the 18 year gap between the
offence and the applicant’s voluntary confession, the sentence was
within the legitimate range of the judge’s sentencing discretion,
notwithstanding the applicant’s age and the mitigating factors which
his Honour took into account.
39 I am not satisfied that the sentence was
manifestly excessive and would dismiss the application.