STATE OF TASMANIA v CHRISTOPHER LEIGH BROWN 31 MARCH 2021
COMMENTS ON PASSING SENTENCE BRETT J
Mr Brown, you have pleaded guilty to one count each of the following crimes:
- Trafficking in cannabis.
- Dealing in firearms without holding a licence, contrary to s 11(1) of the Firearms Act.
- Being an accessory after the fact to murder.
The crime of trafficking was constituted by your conduct of a cannabis selling business between 1 January and 17 August 2019. During that time, you sold cannabis to end users on a regular basis, in deal-sized quantities ranging in value between $50 and $90 per sale. You were selling at various locations, including from your home. From time to time, your children were staying there and would be present in the home when sales of cannabis took place. Some indication of the scale and regularity of the dealing can be derived from text messages recovered by police from your mobile phone and evidence recovered during searches of your home and other relevant locations. In the five days prior to your arrest, which was on 17 August 2019, there are daily text message conversations with customers concerning the purchase of cannabis. In total over this period, you dealt with eight separate customers, some on more than one occasion. The messages clearly relate to the retail sale of small quantities of cannabis. It can be inferred that the purchased drugs were intended for the customer’s own use.
You stored the cannabis awaiting sale in a locked duffel bag in the house of a friend. According to your counsel, you did this in order to avoid the cannabis being located in the house where your children resided. Police found cannabis with an aggregate weight of 277.8 grams in the duffel bag. A very rough estimate of the value of this cannabis, based on the sale price of deal-sized quantities, is something in excess of $3,000. I note that on the same day police found cash in your possession in the sum of $3,165, which you concede to be the proceeds of sale of cannabis.
In addition to selling to end users, you also sold larger quantities to a person who you knew was on selling the cannabis to others. The person concerned is R, a youth aged 17 years the time. You knew him to be a drug user. You were aware that R was selling or supplying the cannabis to a number of young persons of a similar age to him. You sold to R on this wholesale basis on four separate occasions, commencing in mid-2019. On each occasion, the quantity supplied was half a pound, for which you were paid $1,600.
I infer from this evidence that the crime of trafficking committed by you involved the conduct of a low level but active commercial enterprise in the sale of cannabis. Your case can be distinguished from those involving perpetrators at a higher level in the hierarchy of supply. However, it is still a serious matter. Cannabis is an illegal drug with the potential to cause significant harm to those who use it. The courts no longer regard trafficking in cannabis as less serious than trafficking in other illegal drugs. It is clear that you were deriving continuous commercial benefit from your commission of this crime. The seriousness of the crime is also aggravated by the fact that you were supplying cannabis on a wholesale basis to a person who you knew to be on selling to a number of young people, and you were conducting this business from the home in which your children sometimes resided. It is also a significant factor of aggravation that at the time of commission of this crime you were subject to a community service order which had been imposed on 11 April 2018 for offences which included selling a controlled plant. I will say more about your background shortly.
The crimes of dealing in a firearm and being an accessory after the fact to murder are related to the murder of Billy Ray Waters. Mr Waters was murdered by R and B during the evening of Sunday, 4 August 2019. He was 19 years of age at the time of his death. R and B were each 17 years of age when they committed this crime. I do not intend to canvas the circumstances of the murder in any great detail. These were comprehensively explained by Pearce J when he imposed sentence on R and B for the murder. It is sufficient to note that this was a brutal and premeditated killing. The deceased was initially shot in the leg with a 12 gauge shotgun and then bashed repeatedly in the head with the barrel of the firearm and a wooden bat. He was then stabbed in the head, neck and body at least 18 times. Finally, he was shot from close range in the back of the head with the shotgun. This final act caused his death.
You had known both R and the deceased for some time before the murder because you sold each of them cannabis from time to time. Prior to the murder, both you and R had formed a belief that the deceased had stolen cannabis from each of you. You discussed this with R in July 2019, and during that discussion, you made a comment which suggested that Mr Waters deserved to be killed, presumably for stealing the cannabis. Your counsel concedes that you said this to R, but submits that it was nothing more than hyperbole. You did not intend that R or anyone else should give effect to such a thought. Although you are not to be sentenced on the basis that you instigated the murder, the circumstances which I had described thus far provide the context in which you committed the crimes alleged in counts two and three of the indictment.
Count 2 is constituted by your act in selling the firearm which was used to commit the murder, to R a few days before the commission of that crime. The said firearm is a 12 gauge single barrel sawn off shotgun. The weapon had originally been acquired by the deceased but had been taken from him by an associate, who was concerned about his possession of the firearm at a time when he was using methylamphetamine and acting irrationally. This associate gave the firearm to you because he knew you were experienced with firearms and presumably expected that you would keep the firearm safely.
A short time before the murder, R, who knew independently of the existence of the firearm and that it was in your possession, asked you if he could have it. You agreed to sell it to him for $500. The transaction was carried out on 31 July 2019 in your car, while your 12-year-old son was present. In addition to the firearm, you also provided R with a single shotgun cartridge.
It is apparent with the benefit of hindsight that R’s purpose in acquiring the firearm from you was to give effect to a plan which he had developed with B to murder Mr Waters. However, it is accepted that you did not know of this plan nor his intention when you supplied the firearm to him. I will proceed on the basis that despite your knowledge of R’s grievance with the deceased, and your earlier discussion about your own grievance with him, you had no expectation that he intended to harm Mr Waters at all. If you had done so, you would be liable for the probable consequences of carrying out the act instigated by you, which may well have included the murder. You cannot be sentenced on this basis because, although you were originally charged with the murder on the basis that you instigated R and B to commit that crime, the prosecution has not proceeded with that charge. However, your moral culpability for selling the firearm to R is still extremely high. He had told you that he and Mr Waters were planning to commit the crimes of aggravated burglary and stealing, and he intended to use the firearm for this purpose. R was a 17 year old user of illicit drugs, and to supply him with this weapon, as well as ammunition capable of being discharged from it in these circumstances, aggravates your culpability to a significant extent. Further, the objective seriousness of the crime was high. The weapon was actually used to murder Mr Waters. The use of a weapon for criminal and violent purposes is consistent with the harm which this crime is intended to address. The fact that the legislature has seen fit to provide for such conduct to be punishable on indictment indicates the seriousness with which the community regards illegal dealing in firearms. On this occasion, the said risk manifested in a most serious way. This consideration leads to the conclusion that both denunciation and general deterrence are important sentencing factors for this crime.
The final crime to which you have pleaded guilty is being an accessory after the fact to the murder. After they had killed Mr Waters, R and B hid his body in bushland. They took various items of personal property from him, including his ring and house key. R telephoned you to inform you of the murder within hours of its commission. You and R continued to communicate by text message over the next couple of days about arrangements for the supply of cannabis to R. On 7 August, you had a face-to-face conversation with R during which he provided you with a detailed description of the murder. Your 12-year-old son overheard this conversation. On 9 August, R and B came to your house and handed you the firearm and the deceased’s house key. They showed you the ring to confirm the truth of their claim that they had killed him. It is clear that you agreed to dispose of or hide the firearm and you also agreed to return the house key to the deceased’s flatmates. The purpose of both actions was to cover up the murder and prevent the identification of the perpetrators. Further, you, of course, had a personal motive to dispose of the firearm, because it linked you to the murder. You arranged for another person to return the house key, and gave the shotgun to your brother-in-law and told him to “hide or destroy it”. He attempted to destroy and/or hide various parts of the disassembled weapon, but was only partly successful. The police were able to recover some of those parts, with the co-operation of your brother-in-law.
In the end, the attempt to cover up the fact that the deceased was dead was unsuccessful. Returning the key to the deceased’s flatmates just heightened their concern arising from the fact that he was missing, and the police also heard about the murder from a number of other sources. On 16 August 2019, R and B were arrested, and Mr Waters’ body was located soon after. You were arrested the next day.
I regard the crime committed by you as a serious example of being an accessory after the fact to murder. It can be distinguished from more serious cases in which an accessory has assisted in disposing of the body or has committed the crime of being an accessory after the fact with a commercial motive. However, there are a number of aggravating factors, including the disposal of the murder weapon and an attempt to cover up the death of Mr Waters by returning his house key to his flatmates. I also accept the prosecutor’s point that the assessment of your culpability for this crime must also take into account its context. Although you cannot be sentenced on the basis that you counselled or even anticipated commission of this crime by R, the fact remains that when you decided to help the murderers after finding out about the crime, you must or ought to have realised that R’s motive may, at least in part, have arisen from or been related to his relationship with you. I cannot be satisfied beyond reasonable doubt of the precise motive for the murder, but it seems to me that the conclusion that his relationship with you was interrelated with his motive to some extent, is inescapable. This is not a case of a person with no prior involvement in the events leading up to a murder, who subsequently becomes involved because of the immediate circumstances. Your relationship with R was ongoing, both before and after the murder, and had included the provision of the firearm to him, for a criminal purpose. You knew he was upset with Mr Waters and was aware of your claim that the deceased had stolen cannabis from you. R told you about the murder within hours of it happening, and showed you the ring as proof of its commission. You must have realised that they had killed Mr Waters, at least in part, for your benefit and with a weapon supplied by you. You may well have been shocked by their actions, but your close, albeit unintended connection to what they had done demanded, as a matter of conscience and decency, that you refuse to make things worse by helping them. Instead, by agreeing to help these men escape punishment, you demonstrated apparent approval of their actions, and provided them with comfort and solace in respect of their criminal conduct. There was, at least from their perspective, an ongoing complicity, notwithstanding that you did not actually have prior knowledge of what they were going to do. The comfort and support they received from you, in all probability, was anticipated by them. This context, in my view, aggravates your moral culpability and the objective seriousness of your conduct to a considerable extent. It also demonstrates why general deterrence is such an important sentencing factor in respect of this crime. Those who decide to commit premeditated murder find it easier to carry out their intention if they can anticipate assistance in evading punishment.
The murder itself was brutal and callous. The impact statements I have received from the deceased’s mother, grandmother and sister vividly described the enormous but entirely understandable impact that his death has had on his family and, I am sure, many others who knew him. Your actions directly resulted in the partial destruction and dispersal of a critical piece of evidence implicating the murderers. Further, although you were not involved in hiding the body, the reality is that it was some 12 days before the body and the fact that Mr Waters had been murdered was discovered. You contributed to this delay. This delay undoubtedly prolonged the uncertainty and consequent additional suffering experienced by the loved ones of the deceased.
You were 33 years of age at the time of commission of these crimes and are now 34. Your criminal record is lengthy, but consists largely of traffic and drug offences. As already noted, on 11 April 2018, you were sentenced to community service for a number of offences, which included drugs and firearms offences. However, it is fair to say that there is nothing in your record which is as serious as the crimes to which you have pleaded guilty. You have a good family background and a reasonable employment history. You were diagnosed with post-traumatic stress disorder as a result of witnessing an accident involving a colleague during your last employment. You have three children aged 12, 10 and three. Your eldest child has been diagnosed with serious psychological disorders and as a result you have been unable to work for some time due to the need to contribute to his care. Of course, your criminal conduct has already and will result in your incarceration, and this means that you have placed yourself in a position where you are unable to discharge your responsibilities to your children. It is not suggested that this is a mitigating factor.
The high level of objective seriousness of each crime, and the need for general deterrence, requires the imposition of a significant sentence of imprisonment. However, I must take into account the principles of totality. In particular, it is necessary to impose an overall sentence which is proportionate and responsive to the totality of the criminal conduct. There is an overall relationship between each of the crimes, although it must be noted that each individually was constituted by serious and discrete criminal conduct. You should receive appropriate credit for your plea of guilty, which the prosecution properly concedes should be regarded as an early plea. It has had significant utilitarian benefit and I think can also be regarded as some evidence of a remorseful attitude. Of course, the mitigatory weight to be attributed to remorse is limited given the serious, deliberate and relatively prolonged nature of the offending, and the need to emphasise general deterrence.
Christopher Brown you are convicted of each of the crimes to which you have pleaded guilty. You are sentenced to a global term of imprisonment of six years. That sentence will be backdated to commence on 17 August 2019. Because of your plea of guilty and lack of a prior history of serious offending, I will provide for your early release on parole. However, having regard to the serious nature of this offending, I think that the minimum period you should spend in actual custody is a period of four years. Hence, I order that you not be eligible for parole until you have been in custody for that period.
I make the following consequential orders:
- I am satisfied that the sum of $3,165 seized by Tasmania Police from you on 17 August 2019 is tainted property. I order that this sum be forfeited to the State.
- Pursuant to s 38 of the Misuse of Drugs Act, I order that items 1, 3 and 10 on property receipt number 159393, and items 6 and 7 on property receipt number 175510 be forfeited to the Crown.