R v Beacham [2006] QCA 268

SUPREME COURT OF QUEENSLAND

CITATION: R v Beacham [2006] QCA 268

PARTIES: R v BEACHAM, Dion Francis (applicant/appellant)

FILE NO/S: CA No 297 of 2005 / SC No 37 of 2003

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Cairns

DELIVERED ON: 28 July 2006

DELIVERED AT: Brisbane

HEARING DATE: 29 May 2006

JUDGES: McMurdo P, Jerrard JA and Jones J / Separate reasons for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as to the orders made, Jones J dissenting in part

ORDER: 1.Application for leave to appeal against sentence granted / 2.Appeal allowed / 3.Set aside the term of 13 years imprisonment and substitute a sentence of 12 years imprisonment

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – applicant pleaded guilty to unlawful killing, rape and robbery with circumstances of aggravation – Mental Health Court ruled that applicant suffered from diminished responsibility when he killed the deceased – applicant was sentenced to 13 years imprisonment for manslaughter, six years imprisonment for rape and six years imprisonment for robbery and declared a serious violent offender – sentences to be served concurrently – whether trial judge erred in concluding that applicant would be guilty of murder but for his diminished responsibility – whether trial judge erred in concluding that a felony murder was as serious, or more serious than, murder with intent to kill or do grievous bodily harm – whether trial judge erred in assessing the future danger posed by the applicant to the community and the impact of that assessment on the sentencing process – whether sentence was manifestly excessive / Criminal Code 1899 (Qld), s 302(1)(a), s 302(1)(b) / Mental Health Act 2000 (Qld), Pt 3 of Ch 3 / Penalties and Sentences Act 1992 (Qld), s 9(4) / R v Duong, Nguyen, Bui and Quoc [2002] QCA 151; CA Nos 343 of 2001, 338 of 2001, 336 of 2001, 344 of 2001, 30 April 2002, considered / R v Milini [2001] QCA 424; CA No 190 of 2001, 9 October 2001, considered / R v Neumann; ex parte A-G (Qld) [2005] QCA 362; CA No 186 of 2005, 30 September 2005, distinguished / R v Schuurs [2000] QCA 72; CA No 403 of 1999, 15 March 2000, considered / Veen v The Queen [No. 2] (1988) 164 CLR 465, considered

COUNSEL: S G Durward SC for applicant/appellant / V P Keegan for respondent

SOLICITORS: Legal Aid Queensland for applicant/appellant / Director of Public Prosecutions (Queensland) for respondent

1. McMURDO P: The facts and issues are set out in the reasons for judgment of Jerrard JA with which I agree.

2. There is nothing I wish to add to Jerrard JA's reasons for rejecting grounds 1 and 2 of the application for leave to appeal.

3. The remaining grounds, which deal with whether the judge erred in assessing the future danger posed by the applicant to the community and whether the sentence imposed was manifestly excessive, are intertwined. They also raise the tension between the criminal justice system and the mental health system in cases like this.

4. The applicant was sentenced on 4 November 2005. The sentencing judge found the applicant did not intend to kill the deceased but to teach him a lesson. He effected this by bashing the deceased on the head, kicking him about the head and neck (none of these assaults was sufficient to cause death or grievous bodily harm), injecting him with Temazepam, tying his hands and feet tightly together and leaving him face down on the floor before pushing a plastic spider into his rectum. With a co-offender he stole drugs and computer equipment from the deceased.

5. On 17 February 2005 the Mental Health Court found that at the time the applicant killed the deceased he was in a state of abnormality of mind caused by mental illness so as to substantially impair his capacity to know he ought not do the act or acts resulting in the death; he was of diminished responsibility.¹

6. The prosecutor at sentence submitted that a sentence in the region of 12 years imprisonment was appropriate. Defence counsel contended that a sentence approaching, but not reaching, 10 years imprisonment was supported by sentences imposed in other cases.

7. Before imposing the sentence, the judge said "Taking into account your early plea and the reduced mental responsibility which you have for your offence would suggest, if there were nothing else, a sentence of about 11 years." His Honour referred to the difficulties in sentencing an offender in cases of this kind where a psychiatric abnormality reduces the moral culpability of an offender but also marks the offender as one likely to offend again so that he should be removed from society for a lengthy or indeterminate period. His Honour also referred to s 9(4) Penalties and Sentences Act 1992 (Qld) which relevantly provides that in sentencing the applicant:

"... the court must have regard primarily to the following -

(a)the risk of physical harm to any members of the community if a custodial sentence were not imposed;

(b)the need to protect any members of the community from that risk;

... ".

8. Because the applicant was sentenced to a custodial sentence, s 9(4)(a) and (b) is of no direct relevance to this application.

9. The judge stated that he had no doubt the applicant constituted a very considerable threat to the community and that nothing had been done to alleviate that threat, comparing the present case to R v Neumann; ex parte A-G (Qld)² where Neumann at his sentence, unlike this applicant, was subject to an involuntary detention order under the Mental Health Act 2000 (Qld). The judge rightly accepted defence counsel's submission that the Mental Health Act 2000 (Qld) provided a mechanism for the applicant's future detention as an involuntary patient for involuntary assessment after his release into the community but concluded that this was not enough to satisfy him that he had performed his duty under s 9(4) in sentencing the applicant; it was not his task to defer or hand this on to some other authority. His Honour considered himself obliged to take the future protection of the community into account based on the applicant's present threat to the community on the evidence before him. His Honour stated that there was no evidence from the applicant that he was willing to undertake any of the courses referred to in the medical reports tendered at sentence. These reports were those placed before the Mental Health Court in February 2005 and were prepared at various dates between June 2003 and January 2005.

10. The report to which his Honour particularly referred, that of Dr Beech, was prepared on 2 December 2003. Dr Beech noted his concern about

"... the possibility that [the applicant] could at some stage be released with an ongoing psychotic disorder ... near the time of his release, he should be fully assessed to clarify the nature of any persisting symptoms and to determine appropriate ongoing management and follow up. If his symptoms were to persist, beyond his date of release, I believe he would have the potential to be of significant risk to others. I believe therefore it would be in order for a forensic order to be made to ensure that Mr Beacham has ongoing treatment and supervision. Depending on the nature of these symptoms, the treatment could reasonably include involuntary inpatient treatment following his release."

11. Dr Beech's observations were superseded by those contained in the reports of Dr Woolridge of 10 November 2004 and 31 January 2005. In the latter report Dr Woolridge considered that Mr Beacham's symptoms supported a diagnosis of schizophrenia but that he had reservations about that diagnosis which only the passage of time would clarify. I note that the Mental Health Court preferred Dr Woolridge's evidence to that of Dr Beech, at least on the issue of whether the applicant had been deprived of or impaired in his capacity.

12. The judge was not asked to sentence the applicant to an indefinite sentence under Pt 10 Penalties and Sentences Act. Section 9(4) of that Act did not require his Honour to predict the applicant's mental state in many years time when he would become eligible for post-prison community-based release. The material before his Honour did not support his Honour's conclusion that the applicant would present a particular future threat to the protection of the community. The judge erred in carrying out this exercise in determining the appropriate sentence in this case. This error means that this Court should exercise its discretion afresh and re-sentence the applicant.

13. None of the comparable cases referred to at first instance or on appeal was similar to the unusual combination of features in the present case. The offence was a planned and violent vigilante-style attack which resulted in the death of another human being. The applicant was a mature man, 32 at the time of the offence and 36 at sentence. He had a lengthy and concerning criminal history. Although he did not have an extensive record for offences of violence, he had previously been sentenced to periods of detention both as a juvenile and as an adult. These features warranted a salutary penalty, mitigated only by the applicant's timely plea of guilty. I would sentence him to 12 years imprisonment.

14. I would grant the application for leave to appeal, allow the appeal and substitute a term of 12 years imprisonment for the term of 13 years imprisonment.

15. JERRARD JA: On 7 October 2005 Mr Beacham pleaded guilty to unlawfully killing David Philpot on or about 19 October 2001 at Cairns, to raping David Philpot at that same time, and to robbing David Philpot when in company with another person and using personal violence to David Philpot at the time of the robbery. His sentence was adjourned, and on 4 November 2005 Mr Beacham was sentenced to 13 years imprisonment for the manslaughter offence, to six years imprisonment for the rape, and to six years imprisonment for the robbery, declared to be a conviction for a serious violent offence. Those sentences are concurrent. The learned judge declared that a total of 1,451 days in custody was time already served under those sentences. Mr Beacham has applied for leave to appeal, on the grounds that:

1.the judge erred in concluding that Mr Beacham was guilty of murder but for his diminished responsibility;

2.the judge erred in concluding that a felony murder was as serious, or more serious than, murder with intent to kill or do grievous bodily harm;

3.the judge erred in assessing the future danger to the community Mr Beacham posed and in the impact of that assessment on the sentencing process; and

4.the sentence imposed was manifestly excessive.

Circumstances of the offences

16. Counsel for the prosecution informed the learned sentencing judge that Mr Beacham had been in the habit of buying cannabis from the deceased David Philpot, and believed that Mr Philpot was a paedophile. Mr Beacham hated paedophiles, and also believed that he had been supplied by Mr Philpot with cannabis which had been sprayed with fly spray. He enlisted the help of a co-accused, Aaron Blenkinsop, to go to Mr Philpot's unit for the purpose of assaulting and robbing him.

17. The plan for 19 October 2001 was that Mr Blenkinsop would wait downstairs while Mr Beacham went upstairs and subdued Mr Philpot. The plan was then that Mr Blenkinsop would walk upstairs with a bag, and collect various electronic gear, together with cannabis, and any money Mr Blenkinsop could find. Mr Beacham said that he would take care of Mr Philpot.

18. Mr Beacham entered the premises and complained to Mr Philpot about the quality of some cannabis. As Mr Philpot inspected it, Mr Beacham punched Mr Philpot, knocking him to the ground. Mr Beacham then stood on Mr Philpot's arm and injected Mr Philpot with Temazepam, equivalent to approximately two Normison capsules. Mr Philpot lost consciousness, and Mr Beacham tied Mr Philpot's hands and feet tightly together, with Mr Philpot's hands tied behind him. Mr Beacham then kicked Mr Philpot in the head and throat area, some seven or eight times. He also pushed a plastic spider into Mr Philpot's anus. Mr Philpot was left tied up, face down, on the floor. He was found the next day some 15 to 16 hours later in the same position, dead.

19. The cause of death was considered to be asphyxiation. The contributing causes to that were the trauma to his head, and (possibly) the result of the injection of Temazepam. What had happened was that Mr Philpot had not rolled over, and had been unable to breathe sufficiently to survive.

Diminished responsibility

20. On 17 February 2005 the Mental Health Court concluded that Mr Beacham was not of unsound mind at the time of any of the alleged offences, but that in relation to the charge of murder, Mr Beacham was in such a state of abnormality of mind, caused by mental illness, as substantially to impair his capacity to know he ought not to do the act, and was accordingly of diminished responsibility. He was considered fit for trial, and the Mental Health Court ordered that the proceedings against Mr Beacham for manslaughter, and the other charges, be continued according to law. On 7 October 2005 the described pleas of guilty were entered, accepted by the Crown in full satisfaction of the charges on the indictment, and counsel for the Crown informed the learned sentencing judge at a hearing on 26 October 2005 that Mr Beacham's willingness to plead guilty to the charges had been notified shortly after the decision of the Mental Health Court. Accordingly, the Crown accepted that he had relevantly entered an early plea.

Grounds 1 and 2

21. The Crown informed the learned judge that their medical evidence was that the blows administered to Mr Philpot were "not such as to cause death or grievous bodily harm",³ which presumably meant not such as to be likely to cause either of those results. The Crown submitted that, it being a planned attack, as part of a robbery, resulting in intentionally inflicted head injuries, in which the victim was tied up and left injured in a condition directly resulting in his death, the appropriate head sentence was one in the region of 12 years imprisonment. The learned judge said in the sentencing remarks that the judge accepted that Mr Beacham did not intend to cause Mr Philpot's death⁴ or to do him grievous bodily harm.⁵ The judge concluded that that absence of lethal intent did not affect the overall criminality of what occurred, because - the judge considered - but for Mr Beacham's condition of diminished responsibility, he would have been guilty of murder pursuant to s 302(1)(b) of the Criminal Code 1899 (Qld). The judge then observed that the criminality involved would have been just as great, if not greater than, that involved in murder under s 302(1)(a).

22. Those observations resulted in the judge concluding that he should assess Mr Beacham's criminality on the basis that he was guilty of manslaughter by reason of diminished responsibility and, but for that, would have been guilty of murder. That conclusion - that violently assaulting another person and injecting that person with a sedative, tying the person up and leaving the injured victim lying face down and unconscious - were acts likely to endanger human life, and capable of constituting murder if done in the prosecution of an unlawful purpose such as robbing the victim of his drugs and electrical equipment, would have been open to a jury on a trial for murder. Counsel for Mr Beacham on his sentence, Mr J Henry, told the learned sentencing judge that counsel was not going to suggest that the matter was one of criminal negligence, and Mr Henry properly pressed the submission that the case was not one where there was any demonstrable intention to cause death or grievous bodily harm.

23. The learned judge accepted the latter submission, remarking nevertheless upon the availability of a charge of murder by reason of s 302(1)(b), and the judge did not err in considering that charge was available to the Crown, but for the diminished responsibility. A conviction for murder (without that diminished responsibility) was not inevitable, because juries tend to be unsympathetic to drug dealers who are victims of violence in the course of their trade, but the charge was open. I do not consider the learned judge erred in concluding it was, which is really all that the judge did; and nor did any over-statement of the possible outcome affect the sentence. That is because the judge made clear that he accepted the absence of an intent to kill or do grievous bodily harm.

Ground 4

26. The learned sentencing judge recorded that Mr Beacham was aged 32 at the time of the offences, and had a substantial criminal history. It included offences committed in both Queensland and in New South Wales, and the judge referred to Mr Beacham having nine prior convictions for breaking, entering and stealing, eight for offences of stealing, three for escaping from lawful custody, one for supplying a dangerous drug, and many other less serious matters. He had been sentenced previously to six separate terms of imprisonment, ranging from one month through to a period of two years, that last sentence being imposed in 1997 in New South Wales for the charge of supplying a dangerous drug. I observe that a number of Mr Beacham's New South Wales convictions for stealing and breaking and entering, and all of the convictions for escaping, were recorded in the New South Wales Children’s Courts. Mr Beacham, as an adult, has at least five convictions for breaking and entering, two for stealing, three for the offence described in New South Wales as malicious injury, one for unlawful use of a motor vehicle, and a number of convictions for drug and driving offences.

Mr Beacham’s life before the manslaughter

27. The learned judge quoted from the judgment of the Mental Health Court, where that court described Mr Beacham's life in terms which the learned sentencing judge respectfully described as accurate, on the material placed before the latter judge; the Mental Health Court judgment reads, regarding Mr Beacham:

"You were born on 30 January 1969. You had a highly prejudicial and disruptive childhood, being neglected and abused. You had attention deficit disorder and conduct disorder. You were forced to leave school on more than one occasion. You left home at a young age and lived on the streets.

From your early teens you used cannabis heavily. You started to use speed at about the age of 17, and occasionally drank alcohol as a binge drinker. You are the natural father of two children, aged about 11 and five, and stepfather to another, aged about 14.

You had an unstable relationship with the mother of the older two children for about 10 years until 1999. It ended when she was murdered, probably as the result of a drug dispute. You then formed another relationship, but it did not last.

In late 2000 you brought your two children to Queensland. You were detained by police after allegedly hitting the children and twisting their ears. You were taken to the Princess Alexandra Hospital and transferred to Saint Vincent's Hospital at Robina. Next day you were discharged with a diagnosis of antisocial personality disorder.

On release you took the children to Brisbane. Again you came to the attention of police and were admitted to Princess Alexandra Hospital from which you were transferred to Robina for a few days. The hospital notes mention ideas of reference and auditory hallucinations, but the discharge summary indicates a conclusion that there was no mental disorder.

The children were taken into foster care, and you hitchhiked north to North Queensland, arriving shortly before Christmas 2000. In February 2001 you were referred to the Cairns Integrated Mental Health program by the Department of Families. You had reportedly been abusive and violent after discussing your children's foster care, and you claimed to be God.

You denied any use of speed, and said you had not used alcohol or marijuana for a fortnight. You denied all psychotic symptoms. You were considered to have a mild psychosis, possibly schizophrenic and possibly drug-induced.

A follow-up note on 22nd June 2001 indicated that you were much improved with no psychotic symptoms, but anxious about a pending Court case. You declined anti-psychotic medication. From about 1998 you had what Dr Beech described as an obsessional over‑valued anxiety about your own safety, and that of the children. You believed that you were under surveillance and were being poisoned, and that your children and stepchild had been sexually abused.

In 1999 or 2000 you concluded that it all made sense. There was a paedophile racket. You had cracked the paedophiles codes, and you were able to see them making various signals about you, and you had been placed under surveillance. Through 2000 and 2001 your delusional system became more grandiose.

You believed that because of your knowledge you had been chosen by forces of good, that there were signs of advanced technology which indicated that Satan, God, or perhaps aliens were involved. From June or July 2001 through to the events of 19 October 2001 you had a fully developed grandiose paranoid psychosis."

28. The pending court case about which Mr Beacham had anxiety on 22 June 2001 was presumably his forthcoming appearance in the Childers Magistrates Court on 19 July 2001, where he was sentenced for the unlawful use of a motor vehicle, and for stealing. He was placed on 12 months probation, and was on probation at the time of the killing. He next appeared in the Cairns Magistrates Court was on 5 September 2002, when he was dealt with for possessing dangerous drugs and utensils or pipes used for administering dangerous drugs, those offences being committed on 24 October 2001, the day he was taken into custody for the killing, the robbery, and the rape. The various medical reports placed before the Mental Health Court, the learned sentencing judge, and this Court, disclose that Mr Beacham has been a heavy user of cannabis for a long time, and an amphetamine user. On 19 October 2001 he and his accomplice stole cannabis, and some lap-top computers and other equipment, from Mr Philpot, after knocking him down, drugging him, assaulting him, and tying him up. Mr Beacham was sufficiently astute after learning of Mr Philpot's death when watching television, to meet with his accomplice Blenkinsop and a third person, who knew beforehand of the plan, and who had lent them surgical gloves before they went to Mr Philpot’s, and to tell the accomplice to "burn the gear", remarking that "This is between us. We will take this to our grave".⁶

29. Against that background the learned sentencing judge, in assessing the overall criminality of Mr Beacham's combination of offences, described them as an appalling display of thuggery and predatory behaviour. The judge referred to the planning involved in the offences, to Mr Philpot being only a minor drug trafficker who would be helpless in the face of Mr Beacham's superior strength, weight and height; and the judge concluded that if sentence was being imposed after a contested trial, ignoring all discounting factors, the range of sentence would be in the order of 15 to 18 years imprisonment. The judge reached that conclusion, in part, by reference to the sentence imposed after a plea - 12 years imprisonment - in the matter of R v Duong, Nguyen, Bui and Quoc [2002] QCA 151.⁷ I respectfully agree with that assessment of the range of sentence after a trial, not challenged on the application by Mr Durward SC for Mr Beacham, and accepted by Ms Keegan for the Director. Orthodox sentencing practice in this State allows a reduction of an otherwise appropriate sentence of imprisonment, by between one-quarter and one-third, to reflect an appropriately early plea of guilty. On that basis the appropriate range for the manslaughter sentence here, after an early indication of a plea, would have been 10 to 12 years.

30. The learned sentence judge then referred to Mr Beacham's criminal history, to his notification of an early plea, and to the fact that Mr Beacham had committed the offences while in a state of mental disability. Taking those matters into account, the judge concluded that the appropriate sentence, if there were no other relevant matters, would be one of about 11 years. The applicant challenged that conclusion in ground 4, and argued that nine years was the proper sentence, without any declaration of a serious violent offence, but I agree with the learned judge. The manslaughter resulted from deliberately created incapacitating condition, imposed in a planned and brutal robbery of a small-time drug dealer whose services Mr Beacham had previously used.

Ground 3

32. The consideration which then moved the learned judge, leading to this application, was the conclusion that Mr Beacham's mental disability resulted in his constituting a very considerable threat to the community, which nothing had happened to alleviate, and that potential alleviation of the otherwise appropriate sentence by reason of diminished responsibility had to be partially offset by the need, legislated for in s 9 of the Penalties and Sentences Act 1992 (Qld), to protect the community. Accordingly the judge increased the sentence to 13 years.

33. The learned sentencing judge had been given the medical reports provided to the Mental Health Court. Those reports were prepared to assist that Court in determining whether in October 2001 Mr Beacham had then suffered either from insanity or a substantially diminished responsibility for his actions. They were not prepared for the assistance of a sentencing court. There are two reports from a Dr Kingswell, one from a Dr Fama, one from a Dr Beech, and two from a Dr Woolridge. Dr Woolridge is the visiting psychiatrist at the correctional centre where Mr Beacham has been held, and has seen him, inter alia, on 20 November 2001, 20 January 2004, 13 April 2004, 27 April 2004, 1 June 2004 (none of those were for the purposes of the report to the Mental Health Court), and then, for the purposes of that report, on 9 November 2004, 16 November 2004, 23 November 2004 and 11 January 2005. He has seen Mr Beacham both before and after Mr Beacham was treated in custody with anti-psychotic medication (Olanzapine), which seems to have happened for a period of about three months somewhere between September 2003 and March 2004, and he has seen Mr Beacham both before and after a degeneration into his more florid symptoms of psychosis, which happened in the period December 2004 to January 2005. The fact of that relapse, and the fact that Mr Beacham has continued to hold his delusional belief system about paedophiles, has swung the general body of psychiatric assessment of him to the conclusion that he suffers from paranoid schizophrenia. That condition is, it seems, in remission, but has reappeared at least once since Mr Beacham has been in custody. He is generally assessed as without insight into his own disorder. He took himself off his medication because he disliked its effects.

34. An alternative diagnosis, the one first advanced, was of an amphetamine or drug-induced psychosis. The diagnosis of schizophrenia is now preferred, on the assumption that the re-emergence for a period in late 2004 and early 2005 of his overt symptoms did not reflect drug use in gaol. The general description of him is that, when in remission in custody, he has no acute treatment needs, but further episodes of psychosis are a significant risk if he resumes using non-prescribed drugs. He has ongoing delusional beliefs.

35. The summary of his life in the Mental Health Court judgment shows that in late 2000 he had two short admissions to hospital for mental illness, and was diagnosed with a mild psychosis in Cairns (on 1 February 2001) when seen at the Cairns District Service of the Integrated Mental Health Programme. Then on 22 June 2001 a follow-up note recorded that his mood and mental state were much improved, with no psychotic symptoms. It thus appears that both when not in custody and when in custody he experiences both acute periods of psychosis and remission from those.

Mentally ill prisoners

36. Part 1 of Chapter 3 of the Mental Health Act 2000 (Qld) (the “MHA”) provides for a prisoner's detention in an authorized mental health service for assessment, on the recommendation of a doctor or authorized mental health practitioner who has examined the prisoner within the preceding three days.⁹ A prisoner removed to an authorized mental health service for that assessment becomes a classified patient,¹⁰ and may be detained in the health service; s 69(3) provides that the patient is a classified patient until, relevantly, the director of the health service returns the prisoner to the care of the correctional service, under s 90 and s 94. A prisoner who is a classified patient can remain classified and detained while on parole, but at the end of the prisoner's period of imprisonment, or parole, the prisoner ceases to be a classified patient. If the prisoner is not an involuntary patient (as defined), the health service administrator must immediately either release the person, or make arrangements for the person's admission to an authorized mental health service that is not a high security unit. If the prisoner on ceasing to be a classified patient is an involuntary patient then that person, if already detained in a high security unit, may continue to be so detained. Mr Beacham is not an involuntary patient as defined in the MHA, but can be treated and detained as described for an ongoing mental illness at the end of his sentence, if necessary.

37. If at large in the community, and mentally ill, Mr Beacham can be made an involuntary patient in a mental health service. The disadvantaged and deprived life he has experienced, with fractured relationships, prison sentences, and significant drug abuse, is similar to that of many people who are sent by courts to prison. Those deprivations, disadvantages and other experiences predictably damage mental health. I accept Mr Durward's submission that Mr Beacham does not show a significantly greater risk to the community on his eventual release, after serving all or the greater part of a lengthy prison sentence, than the risk posed by other long-term prisoners with similar histories of deprivation, abuse, and self‑abuse. The danger for the community will come from his not taking medication prescribed for him, and his consumption of unprescribed drugs. The latter is a risk for many prisoners; a very large percentage of the recidivist armed robbers who are sentenced in Australian courts commit those offences because of addiction to drugs.

38. In my respectful opinion it was an error for the learned sentencing judge in this matter to make the sentencing process a two step one, and to increase the otherwise appropriate sentence by two years because of the need to protect the community. I would allow the application and appeal on this ground, and re-sentence Mr Beacham.

Re-sentencing

39. Had Mr Beacham's delusional beliefs responded to the medication he took for a relatively short period in custody, and if he had both taken medication as prescribed and remained free of the psychosis for at least two years prior to being sentenced, then his diminished responsibility when he offended would have justified a very substantial reduction in the otherwise appropriate sentence, such as the sentence this Court imposed in R v Milini [2001] QCA 424.¹¹ That reduction would reflect both his diminished responsibility and the considerable lessening in the risk he would pose on release. Whatever that risk will be, the mental health system provides some protection, and the risk is not shown to be so significant as to warrant what is essentially preventative detention.

40. While Mr Beacham's moral culpability for his offences is significantly reduced because of his substantially reduced capacity to know that he ought not to act as he did, and while it is accordingly inappropriate that his sentence should be used as a deterrent to others, the need to protect the community is just as relevant when sentencing Mr Beacham as when sentencing other deprived and disadvantaged people who have suffered the effects of significant drug abuse and who have committed violent, dangerous, and dishonest acts. Two relevant cases to which Mr Durward referred this Court support the (11 year) sentence first suggested by the sentencing judge. One matter is the decision of this Court in R v Schuurs [2000] QCA 72.¹² That offender was sentenced for manslaughter after a trial. He was one of three people who went armed to the home of a drug associate, to demand payment of a debt. The victim, on seeing them arrive, armed himself with two knives, and Mr Schuurs called upon one of the accomplices to shoot the victim in the leg. The accomplice fired, on Mr Schuurs' instruction, but shot the victim in the chest, and he died. Mr Schuurs had supplied the rifle and the ammunition, and the jury returned a verdict of manslaughter. This Court's judgment records that Mr Schuurs had shown no remorse, and described it as a serious example of the offence of manslaughter, while upholding the sentence of 10 years imprisonment. In that offender's favour was that he was not the person who fired the weapon, and this Court's judgment does not refer to his having any prior convictions. Then there is the 12 year sentence imposed in the case of Duong described earlier.

41. I agree with the President that a sentence of 12 years is justified.

42. JONES J: The applicant relies upon four grounds to contend that he should have leave to appeal against the sentence of 13 years for the offence of manslaughter.

“Mr Beacham has only recently commenced treatment for his psychosis. From his description, his symptoms have been present since 1998 and have continued in the two years of detention on remand. This disorder has therefore pursued a chronic and most likely unremitting course, and it appears to be well-entrenched. I believe that he requires significant and ongoing psychiatric management, including antipsychotic medication. If he is found of unsound mind, I believe he should be transferred to a secure mental health inpatient unit. His lifestyle is not consistent with community treatment. If he is not found of unsound mind, of concern is the possibility that Mr Beacham could at some stage be released with an ongoing psychotic disorder.”¹⁶

The applicant was commenced on antipsychotic medication in January 2004 but by April 2004 declined to continue with it saying he felt better without it and that he did not accept the diagnosis of paranoid schizophrenia.¹⁷

49. Dr Woolridge, visiting psychiatrist to the Correctional Centre, where the applicant is detained, has seen the applicant on nine occasions both for treatment and for the purposes of providing reports. In the latest of his reports tendered before the learned sentencing judge, Dr Woolridge expressed his opinion in the following terms:-

“The recurrence of Mr Beacham’s symptoms after approximately nine months off medication makes a diagnosis of schizophrenia more likely. However I retain reservations about this diagnosis. These reservations are based on the absence of any reported behavioural change during the period leading up to the recurrence of symptoms and the intactness of Mr Beacham’s personality. I think only the passage of time will clarify Mr Beacham’s diagnosis.”¹⁸

50. Consistent with the approach adopted by the High Court in Veen v The Queen [No. 2]¹⁹ and the Court of Appeal in R v Neumann; ex parte A-G (Qld)²⁰ it was necessary for his Honour to make an assessment not only of how mental impairment affected the level of the applicant’s criminality but also “how any impairment should affect the sentencing process”.²¹ In Veen [No. 2] the majority decision includes the following passage:-

“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”²²

Referring to the decision in Veen [No.1] the judgment continues:-

“But all justices other than Murphy J accepted that, in a case where a verdict of manslaughter is returned on the ground of diminished responsibility, the risk that the offender’s mental abnormality may lead him to kill again is a material factor in determining the sentence to be imposed.”²³

51. In Neumann, Fryberg J (then sitting as a member of the Court of Appeal, with McPherson JA agreeing) said at [30]):-

“In my judgment it cannot be doubted that a sentencing judge in Queensland may now take the protection of the community into account in a case involving violence. He or she may do so not only in determining whether a sentence of imprisonment should be imposed but also in determining how much imprisonment to impose. However it must be remembered that protection of the community is not a mantra to be chanted automatically in every case of violence. There must be evidence from which a threat to the community can be inferred. Such an inference is not to be drawn without a foundation of substance. This is particularly the case when consideration is given to the question whether the threat will exist at the end of a lengthy determinate sentence. Account must be taken of what is likely to occur during the course of the sentence, for example attendance at anger management programs and sexual offender treatment programs.”

52. The learned sentencing judge was required to sentence the applicant having regard to s 9(4) of the Act. He said:-

“In the present case, section 9(4) of the Penalties and Sentences Act requires that in sentencing you, I must have regard primarily to a number of factors, the first two of which are the risk of physical harm to any members of the community if a custodial sentence were not imposed, and the need to protect any members of the community from that risk. That is the second edge of the sword to which Justice Brennan referred. There is, in my judgment, no doubt that you constitute a very considerable threat to the community. I reject your counsel’s submission that there is no positive evidence of future danger.

The problem in sentencing you is that nothing has happened to alleviate that threat. In contrast to Neumann, no involuntary detention order has been made in relation to you. As your counsel pointed out there is a mechanism in existence under the Mental Health Act, but it seems to me that, by itself, is not enough to enable me to be satisfied that I have performed the duty which the law casts upon me in sentencing you. It is not my position to defer the task or to hand it on to some other authority. I am obliged to take the protection of the community into account, and I must do so on the basis of the threat as it now stands and the evidence as it now is.”²⁴

53. Though his Honour’s regard for paragraphs (a) and (b) necessarily ended once he determined to impose a term of imprisonment²⁵ it was highly relevant in this case to consider the future risk to the community.

54. By reason of the requirement that the applicant serve 80 per cent of his sentence in actual custody, the period for review whilst on parole is relatively short. Whilst in custody and whilst at large on parole there are ample means of assessing the appellant’s mental state and if necessary having him classified under the Mental Health Act 2000. When the term of imprisonment expires the applicant will be in the community unsupervised. The Court has to assess the risk to the community by having regard to the circumstances prevailing at the time of sentencing. A relevant fact is the provision of Mental Health services in the community and the court’s assessment of their effectiveness in meeting the risk as perceived by the Court. The only protection provided by the present regime under the Mental Health Act at the end of the applicant’s term of imprisonment, unless he is further detained, is limited to his being made an involuntary patient pursuant to Chapter 4 of the Mental Health Act.

55. The applicant’s pre-offence history shows that he had enforced hospitalisation and treatment between November and December 2000 and was treated again at the Cairns Community Mental Health Service between February and July 2001 a few months prior to his commission of this offence. He was at the time also subject to a probation order made on 19 July 2001. He is a non-complying patient with respect to taking medication, a feature which occurred again whilst he was in custody. Dr Kingswell assesses him as being at “greater risk of recidivism than most”.²⁶ In the latest of the many reports from psychiatrists, there are details of the applicant’s continuing delusional episodes which caused Dr Woolridge to suggest that a diagnosis of schizophrenia was more likely. Such a diagnosis coupled with the applicant’s life history of poor self control, and the risk of not taking medication, caused his Honour to identify a need for a “firm determination of [his] status and for [his] habituation into a socially acceptable mode of behaviour”.²⁷ To allow time for this to occur was a proper consideration in assessing the term of imprisonment. This consideration justifies a sentence at the higher end of the sentencing range.

56. Whilst it is accepted, as Mr Durward SC submits, that many long term prisoners have mental health problems arising from personal deprivations and drug abuse, not often is there available such direct and frank evidence of risk to the community. By adopting the approach he did, the learned sentencing judge was simply exposing his reasoning for the sentence imposed. I do not regard the approach as constituting an error.

Footnotes

1. R v DFB [2005] QMHC 28; CA No 180 of 2003, 17 February 2005. ↩

2. [2005] QCA 362; CA No 186 of 2005, 30 September 2005. ↩

3. AR 12. ↩

4. AR 54. ↩

5. AR 61. ↩

6. AR 169, in the judgment of the Mental Health Court. ↩

7. R v Duong, Nguyen, Bui and Quoc [2002] QCA 151; CA Nos 343 of 2001, 338 of 2001, 336 of 2001, 344 of 2001, 30 April 2002. ↩

8. AR 104. ↩

9. Section 50 of the MHA. ↩

10. Section 69 Div 2 Pt 4 of the MHA. ↩

11. CA No 190 of 2001, 9 October 2001. ↩

12. CA No 403 of 1999, 15 March 2000. ↩

13. AR 63/25. ↩

14. CA Nos 343 of 2001, 338 of 2001, 336 of 2001, 344 of 2001, 30 April 2002.