R v Bean [2022] NSWSC 783 | Case summary

Circumstances of offending

Extensive evidence was adduced at trial as to the circumstances leading to Mr Boardman's death. The evidence has, for the most part, been reduced to a statement of facts agreed between the parties for the purposes of sentencing.
My summary comes primarily from the statement of agreed facts.
For approximately 20 years prior to the events of 18 October 2018, the offender had been in a de facto relationship with Ms Carter. At least for part of that period they had lived together at premises owned by Ms Carter at Dundurrabin. Those premises consisted of a driveway which ran to a tandem carport attached to a detached garage that had been converted into a self-contained flat and a three bedroom house and sheds and yards surrounded by bushland.
During that same approximately 20 year period, the offender had been good friends with Mr Boardman. They had undertaken many activities together including playing football, fishing and going shooting together. The offender possessed two .22 calibre rifles that had been given to him by Mr Boardman, one of which was a lever-action rifle.
In late August 2018, the offender learned that Ms Carter had developed a relationship with Mr Boardman. For a period of five days in August 2018, she did not come home and instead stayed with Mr Boardman. Approximately ten days prior to his death, Ms Carter had left the home at Dundurrabin and taken up with Mr Boardman. It emerged that they had been in a relationship for approximately eleven months prior to October 2018.
On the offender becoming aware of that relationship, the friendship between the offender and Mr Boardman ended and their relationship became acrimonious. During the period August 2018 and up to 18 October 2018, Mr Boardman, the offender and Ms Carter, as well as other persons such as Ms Carter's sister, exchanged many text messages which were the subject of evidence.
This included numerous text messages in which both the offender and Mr Boardman abused and threatened each other. Mr Boardman taunted the offender.
After staying with Mr Boardman for a period of five days, Ms Carter returned home and recommenced residing in the premises at Dundurrabin with the offender. They continued to reside together during September and early October 2018. During this time Ms Carter suspected that the offender was having a relationship with a friend, Tamika Bird, although the evidence does not support that suspicion. During the ten days prior to 18 October 2018, the text messages between the offender and Mr Boardman became even more acrimonious, abusive and threatening.
On or around 9 October 2018, Ms Carter and Mr Boardman travelled to Queensland but did not tell anyone where they were going. After this time, the offender slept in the flat at the property with the lever-action .22 calibre rifle under his bed.
On 15 October 2018, Ms Carter texted the offender suggesting they needed to meet and talk about their relationship.
On 17 October 2018, Mr Boardman and Ms Carter travelled down from Queensland because Ms Carter's father was in hospital having surgery. She arranged to see the offender at her property at Dundurrabin. She texted him to say that she was coming. At approximately 1pm, Mr Boardman was observed driving out of the Tyringham Store with tyres screeching. It was suggested that as he left the store and drove through the town, he was driving at about 140 kilometres per hour.
He dropped Ms Carter off at the top of the driveway to the property and went to wait at EJ Fahey Park, about 400 metres from the property. According to Ms Carter, Mr Boardman was anxious and agitated and wanted to purchase Crystal Methylamphetamine (Ice).
The offender was asleep in the flat when she arrived at the property. The rifle beneath the bed had bullets loaded in the magazine. Around this time, Mr Boardman started texting aggressive messages to the offender, threatening him, abusing him, demeaning him and daring him to come down to the park.
Whilst the offender and Ms Carter spoke about their relationship, the offender heard his phone beeping. When he checked his phone, he saw the many messages from Mr Boardman and realised that Mr Boardman was in the vicinity of the area. He then started texting Mr Boardman, similarly threatening and taunting Mr Boardman to come and pick up Ms Carter. Ms Carter similarly texted Mr Boardman, asking him to come and pick her up.
Shortly thereafter, Mr Boardman was observed to be driving Ms Carter's car out of the park and at speeds up to 140 kilometres per hour in an 80‑kilometre zone. He drove down the driveway into the property towards the offender who was standing at the rear of a silver Toyota Hilux parked in the carport. Mr Boardman drove straight at the offender but, before the car could hit him, the offender jumped out of the way. Mr Boardman crashed into the back of the silver Toyota Hilux precisely where the offender had been standing.
Ms Carter came out of the flat as the offender ran into the flat. The offender grabbed the rifle from under the bed. He came back out and saw Mr Boardman sitting in the driver's seat pushing the deployed airbags away. The driver's door was closed and the window was half down. Mr Boardman leaned and reached over to the passenger's side of the vehicle. The offender raised the rifle and pointed it toward him. Mr Boardman stopped reaching over to the passenger's side and turned back to look at the offender. The offender lowered the rifle so it was pointing to the ground. Mr Boardman then suddenly turned back to the passenger's side of the vehicle and reached towards the floor and appeared to be trying to get something. The offender, believing Mr Boardman was reaching for a gun in order to shoot him, aimed the rifle at Mr Boardman and fired once through the open window, hitting him in the right upper back near the shoulder blade.
The offender believed that Mr Boardman always had guns with him and that he would have had a gun with him in the car that day.
It is an agreed fact that the offender believed it was necessary to shoot Mr Boardman in order to defend himself. However, the offender concedes that his actions were not a reasonable response in the circumstances as he perceived them.
Immediately after shooting Mr Boardman, the offender dropped the rifle and went to the driver's side door. He pulled open the door and Mr Boardman got out of the car. The two wrestled briefly. Ms Carter jumped on top of them to break them up. The offender walked away. Ms Carter then realised that Mr Boardman was badly injured and called the offender to help her. The offender tried to move Ms Carter's car but it would not start. He jumped over the bonnet and got a white Toyota Hilux that was used as a farm ute and brought it around to the carpark.
He attempted to disengage Ms Carter's car from the silver Hilux. He and Ms Carter walked Mr Boardman over to the white Hilux and assisted him in climbing onto the tray. Ms Carter put a blanket over him. She observed he was still breathing. She commenced to drive him towards the town and called an ambulance. She stopped at a nearby intersection. By the time the ambulance arrived, Mr Boardman was dead.
The offender texted his friend, Tamika Bird. She came over. He took the two rifles, some clothing and a swag and went to a bush shack at Mt Hyland. At 2.25pm he texted Ms Carter saying, "We're going to have to say he was playing with a gun and it we not off" [sic]. He sent a further text to her that day asking her to respond.
On 20 October 2018, the offender texted Ms Carter saying, "Y did u fucken bring him there I told u what was going to happen".
The offender remained in hiding until he was arrested on 31 October 2018 on his way to his lawyer's office in Coffs Harbour. He was in company with Ms Carter.
The death of Mr Boardman was the culmination of the deterioration in the relationship between Mr Boardman and the offender arising out of the discovery of Ms Carter's relationship with Mr Boardman.
The substantial volume of text messages between the offender and Mr Boardman in the period August to October 2018 demonstrated the level of deterioration and the acrimony which developed between the two men.
The tone and content of the text messages demonstrate the determination of both men to outdo each other in terms of the level of threats and violence which they suggested they would impart on each other. It is apparent that things reached a tipping point in the short period prior to Mr Boardman's death when Ms Carter returned to her former home to speak to the offender whilst Mr Boardman waited down the road. The offender became aware that Mr Boardman was waiting down the road.
It is not necessary to comment in any further detail about these text messages as the parties have agreed that the offender felt it necessary to defend himself when he shot Mr Boardman. However, it is necessary to consider the content and tone of the text messages in context, particularly having regard to the character and background of both men.
The evidence presented at the trial as to their prior behaviour, conduct and character was in stark contrast.
A number of witnesses were called at the trial to attest to the offender's earlier good character. No witnesses referred to any earlier violent conduct on his part and there was evidence that he led a good life prior to the events of that day.
On the other hand, a number of witnesses gave evidence of acts said to have been committed by Mr Boardman of a threatening nature in the years prior to his death. He was described as a man who had a short temper and could get angry, a standover man. He had been taking Ice. He was also known to have guns. There was evidence, in particular, of some intimidatory and threatening conduct towards a young woman.
On my review of the evidence as a whole and the general exchanges between the men during the period August to October 2018, I have the impression that the offender was in some way trying to stand up to Mr Boardman or match his threats with threats against the background of Mr Boardman being known to be an aggressive and threatening individual and the offender not being that type of person at all.
There are two matters which remain in dispute which are relevant to the exercise of the sentencing discretion being: 1. Whether the offender intended to kill Mr Boardman; and 2. Where in the range the offender's conduct might fit in terms of assessment of the level of not being reasonable.
In his submissions, the offender emphasises that immediately prior to being shot, Mr Boardman had driven a car straight at him as he waited unarmed outside the premises in front of the silver Hilux. Only after jumping out of the way did he go inside to retrieve the rifle. The offender also emphasises (and it is an agreed fact) that after pointing the rifle at Mr Boardman when he was leaning over towards the passenger's side of the vehicle, Mr Boardman straightened up and looked at him. The offender then lowered the rifle so it was pointing at the ground.
Only when Mr Boardman moved quickly back towards the passenger's side of the vehicle did he raise the rifle in one hand and shoot him once in the upper right side of the back. He did so in the belief that it was necessary to prevent Mr Boardman from shooting him.
As it turns out, there was no gun in the car at the time. That is, the offender wrongly believed that Mr Boardman was reaching for a gun and was going to use it to shoot him. However, it is the offender's perception that is important and the Crown accepts that the offender believed that it was necessary to defend himself.
The offender submits that he did not form the intent to kill Mr Boardman at that moment, albeit he must have contemplated causing grievous bodily harm. The offender submits that he responded to Mr Boardman's sudden movement. Further, his response was contributed to by the medical condition which he suffered from being complex post-traumatic stress disorder (complex PTSD). The offender also emphasises that he did not shoot Mr Boardman again, although there were more bullets in the rifle. He dropped the rifle and engaged in a wrestle with the offender before helping Ms Carter place the offender onto the tray of another Hilux vehicle for the purpose of being driven away to seek medical attention.
I should not make a finding adverse to the offender unless I am satisfied beyond a reasonable doubt.
The Crown submits that considering the nature of the threats the offender had been making against Mr Boardman, the offender contemplated that Mr Boardman could be fatally wounded and, having regard to the fact that he shot Mr Boardman in the back, the Court would be satisfied beyond a reasonable doubt that the offender intended to kill Mr Boardman.
I am not so satisfied.
As I have already identified, I am not satisfied that the threats against Mr Boardman contained in the offender's text messages to Mr Boardman were anything more than attempts to stand up to Mr Boardman and match him threat with threat. I am not satisfied that he intended to kill Mr Boardman when he saw him and I am not satisfied that he formed the intention to kill him when he shot him. I accept the submission of the offender that he only raised the rifle again (after lowering it to the ground) when he saw Mr Boardman reach over to the passenger side.
His response was to shoot Mr Boardman as he believed that he was going for a gun and that it was necessary to defend himself. He did not intend to kill him in doing so but must have intended to cause grievous bodily harm.
The second issue about which the Crown and the offender disagree is the degree of unreasonableness of the offender's actions. A relevant sentencing consideration is the extent to which the offender's conduct deviated from what might have been reasonable in the circumstances as the offender perceived them. [1]
The Crown submits that the actions of the offender in shooting Mr Boardman were grossly unreasonable.
As identified in Smith v R, [2] for the purposes of assessing the degree of unreasonableness (noting that the offender accepts that his conduct was unreasonable) it is necessary to consider: 1. What were the circumstances as the offender perceived them to be? and 2. What was the conduct that the offender believed was necessary in order to defend himself?
The reasonableness of the offender's conduct must be measured against the offender's perception of the circumstances in which he found himself. [3]
The primary submission of the Crown is that the offender's conduct in shooting Mr Boardman as he sat in the driver's seat of the car must be considered grossly unreasonable because he shot him without warning. That is, although he may have believed that he was reaching for a gun, the offender could have called on Mr Boardman not to move or attempted to make an escape.
On the other hand, the offender submits that his perception was informed by the fact that Mr Boardman had just driven directly at him with the intention of ramming him with the vehicle, possibly killing or seriously injuring him, at a time when the offender was on his own property and remained unarmed. The offender highlights that he lowered the rifle when he observed Mr Boardman reaching toward the passenger's side. He only raised it again and shot Mr Boardman when Mr Boardman reached towards the passenger's side with the offender believing he was reaching for a gun in the footwell of the car and was going to shoot him.
The offender says he reacted instantly without the opportunity for calm reflection. He shot Mr Boardman once even though there were more bullets in the rifle. He then dropped the rifle. The offender submits that whilst his conduct was disproportionate, it was not grossly so.
It is important to reiterate that any assessment of the offender's conduct must be undertaken in the context of the circumstances as the offender perceived them. The Court is not looking backwards in the knowledge that Mr Boardman did not actually have a gun. The Court must assess the offender's conduct having regard to the offender's belief that Mr Boardman was going for a gun, in circumstances in which the offender knew that Mr Boardman had guns and knew how to use them and in the context of both: 1. The threats made by Mr Boardman towards the offender in the minutes before Mr Boardman arrived at the property and indeed on many occasions prior thereto; and 2. The fact, which is not disputed, that Mr Boardman had driven directly at the offender as the offender stood in front of another vehicle. Even though the offender had been able to jump out of the way, Mr Boardman collided with the vehicle meaning that either he did not have time to stop or he quite deliberately drove into the vehicle.
Calm reflection might have suggested to the offender that he should have warned Mr Boardman before again pointing the gun at him or that he might have thought about the best way of escaping rather than firing. However, that rather ignores the offender's perception that Mr Boardman was going for a gun and was going to use it on him.
This is not a case where an offender brought a weapon to what was known to be a fist-fight or where an offender used a gun in response to some less dangerous weapon being used by the deceased person.
The offender retrieved his gun from under his bed only after Mr Boardman had driven the vehicle straight at him at speed, plainly with the intention of at least causing him serious injury.
In my view, the Crown's description of the offender's conduct as being grossly disproportionate is an inapt description. It was unreasonable and excessive but, I do not consider it to have been grossly disproportionate in the circumstances as the offender perceived them.
In the end, as the response was not grossly disproportionate, it is not necessary to use other words to describe the level of disproportionality. The parties agree that it is not appropriate or necessary to identify where within the broad range of objective seriousness this offending might sit.
As submitted by both the Crown and the offender, the offender's offending is objectively serious. Given the wide range of conduct that can be captured by the offence of manslaughter, neither party suggested that it is necessary to make any other finding about the serious nature of the offending.
Further, I accept the submission of the offender that, based on the report of Ms De Santa Brigida, which was not the subject of any challenge by the Crown, the offender was suffering from complex PTSD at the time of the offending. Ms De Santa Brigida explained this as follows: "(6.9). It is the assertion of this author that Mr Bean would meet the criteria for a Type II trauma (Complex PTSD). … (6.11). It is noted that the diagnosis of PTSD is related to the shooting of the victim in the current proceedings which would be a type 1 trauma, referring to a single event, Mr Bean's experiences in childhood would be a Type II trauma, and this underlies the effects of trauma, especially when the trauma has happened during the individual's early twenty years before the shooting and this would be anticipated to have significant effect on him."
The principles to be applied when an offender suffers from a mental illness are summarised in Director of Public Prosecutions (Cth) v De la Rosa; [4] Lawson v R. [5]
As I accept that the offender's mental health condition (being complex PTSD) materially contributed to the offending, that is, it made him hypervigilant and overreactive, then this has the effect of reducing his moral culpability and impacts upon the objective seriousness of the offending.

Subjective Circumstances

There is really no dispute about the offender's subjective circumstances.
The offender's background is set out in the report of Ms De Santa Brigida. The offender gave evidence on the sentencing hearing but his evidence was limited to the issue of remorse.
The offender is currently 46. He was born and grew up in New Zealand. He came to Australia at the age of 21. His childhood was troubled and difficult. He was subjected to physical and verbal abuse from his father until his father left the family unit when he was 5 or 6. He has had no further contact with his father.
He has two siblings, being older and younger sisters. His older sister was raised by her maternal grandparents because his mother was only 15 when she gave birth. When he was 15, his mother started a relationship with another man and had three children from this relationship. He went to reside with his grandfather. He moved out of his grandfather's premises at 18 and has lived independently since that time.
The offender had been in a relationship with Ms Carter for 20 years. There were no children from that relationship but the offender and Ms Carter raised the daughter of Ms Carter's sister.
During his childhood in New Zealand, his family moved around a lot. He attended school until Year 8. He attempted study at TAFE commencing at the age of 15 but that was unsuccessful. Since arriving in Australia he has worked various jobs including on a potato farm and at a sawmill.
He first used cannabis at the age of 12. He first consumed alcohol at the age of 15. He continued to use cannabis up to the time of his current offending. He consumed ever-increasing quantities of alcohol until the age of 33. At the age of 25 he first experimented with Ice.
Ms De Santa Brigida opined that the offender had a history of trauma which was relevant from two perspectives. During his early childhood, safety was always a concern. He recalled that his father often hit him because he was always trying to protect his little sister.
Further, between the ages of 5 and 10, his older cousin would always try and kiss him as he would to his little sister. His cousin committed suicide at around the age of 18.
According to Ms De Santa Brigida, the offender's complex PTSD arose from his exposure to trauma during his early childhood. The sources of trauma appear to have been multifactorial. Further, his early trauma rendered him more vulnerable to addiction. He informed Ms De Santa Brigida that whilst he had reduced his Ice intake in the years prior to the offending, the discovery of Ms Carter's relationship with Mr Boardman led to an increase in Ice use.
Although the offender has not had any treatment for any psychological illness (which is not unusual for long-term sufferers of previously undiagnosed PTSD), I am satisfied that the offender was suffering from complex PTSD at the time of the offending and that it has impacted upon him in the ways suggested by Ms De Santa Brigida.
Firstly, as I have already said, there is a relationship between the condition from which he suffered and the offending.
Secondly, she opines that because of his overriding symptoms of hypervigilance, his time in custody would be more onerous. He is in an environment where danger is ever-present due to the nature of the environment. He would be in a state of constant hypervigilance with concerns for his safety.
I am also satisfied that although he suffered from complex PTSD and developed drug and alcohol addictions consequent thereon, he was, prior to the offending, a person of good character.
His criminal history is limited to the offences of cultivating a prohibited plant and supplying a prohibited drug in 2006, for which he received a bond. He otherwise has only been fined for driving without a licence and not wearing a seatbelt and speeding in 2007 and 2013. There is thus no criminal history which would otherwise disentitle him to leniency.
Further, all persons who have provided testimonials or character references speak glowingly of the offender. He was not known to be violent and was considered a quiet, loyal and generous person. According to his sisters and friends, he was a much loved and valued member of his family. They all speak of his kindness. One of his friends describes him as gentle and thoughtful. They describe him as being truly ashamed and sorry for what he has done and determined never to offend again.
Having regard to all the material presented on sentencing, I accept that prior to this offending, the offender led a quiet and purposeful life. He was well-regarded by his friends and was a valued member of his extended family. He had been in a constant and stable relationship with Ms Carter for 20 years and was a good friend of Mr Boardman throughout that period. Having said that, he was a drug user and for many years had consumed excessive quantities of alcohol, but there is no evidence of earlier periods of erratic behaviour or violence which would cause me to reject the extensive evidence of his good character.
All of these matters and my acceptance that he was suffering from complex PTSD impact upon the exercise of the sentencing discretion in a significant way. Indeed, I accept that: 1. As identified by Ms De Santa Brigida, the state of the offender's mental health at the time contributed to the offending in a material way. As such, I accept that his moral culpability is lessened and that the need to denounce the crime is reduced; 2. Secondly, I accept that, in the circumstances, general deterrence is not a significant factor in the exercise of the discretion; and 3. Thirdly, I accept that the need for specific deterrence is not a significant factor. The circumstances of the offending and the offender's subjective circumstances are such that the offender is unlikely to offend again. Specific deterrence is not a factor which has any role to play in the exercise of the sentencing discretion in this case.
Further, I accept the opinion of Ms De Santa Brigida that the offender's time in custody would weigh more heavily on him because of his PTSD. His condition makes him hypervigilant and he will remain in an environment where he may perceive concerns as to his safety. This will make his time in custody more onerous. I consider that these are special circumstances which entitle him to a slightly longer period on parole than the statutory ratio. [6]
I also accept that the offender has good prospects of rehabilitation. He has strong family and community ties. He continues to work in the metal fabrication workshop within the prison. Nothing in the Corrective Services notes suggests any pattern of misbehaviour or failure to comply. Indeed, the notes of 30 July 2021 suggest that his general conduct and behaviour have been of a high standard and that he has always conducted himself in a way that has been expected of him. He is compliant with all his scheduled activities, including work, hobbies and gymnasium. He is described as a polite and quiet inmate who keeps mostly to himself.
All of these matters tend to suggest that he has good prospects of rehabilitation.

R v Bean

At a glance

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