Solicitors:
Office of the Director of Public Prosecutions (Crown)
Robert Kaufmann Criminal Lawyer (Offender)
File Number(s): 2013/205981
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Judgment
Introduction
On 4 March 2015, Matthew Beattie (the offender) was arraigned on an indictment before a jury panel and me. It contained a single count alleging that on 7 July 2013 at Corlette he murdered Dennis O'Brien (the deceased). In fact, the fatal assault had taken place on 30 June 2013, but the deceased had passed away some days later. The offender pleaded not guilty to murder but guilty of manslaughter. That plea was not accepted by the Crown, and a trial proceeded before a jury of 12 and me.
At an early stage of the trial, it became clear that the only real issue was whether the Crown could prove beyond reasonable doubt that the offender intended to inflict grievous bodily harm upon the deceased, in light of his intoxication by way of alcohol, prohibited drugs, and prescribed drugs. On 19 March 2015, the jury determined that issue in favour of the Crown by returning a verdict of guilty of murder.
On 12 June 2015, I received evidence on sentence, including two victim impact statements, and helpful oral and written submissions from each counsel.
On the same day, three offences were placed before me by way of a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The offender had pleaded guilty to each of those charges some time before. With regard to those offences, I sentence with the applicable jurisdictional limit of the Local Court in mind: R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115. I shall briefly discuss each of those far less serious offences when I come to discuss the circumstances of the murder.
R v Beattie [2015] NSWSC 961 | Case summary | Zoe
The imposition of sentence was thereafter stood over for some weeks, in order to avoid it coinciding with the anniversary of the death of the deceased.
It is in the foregoing procedural context that the offender will be sentenced for the offence of murder today.
As I have said, the only issue at trial was the intention of the offender at the time of the fatal assault. No other facts were placed in dispute. In the proceedings on sentence as well, there were few if any disputes about matters of fact. I have borne in mind that any aggravating feature beyond the elements of the offence must be proven beyond reasonable doubt, but any mitigating feature need only be proven in favour of the offender on the balance of probabilities.
The maximum penalty in New South Wales for the offence of murder is imprisonment for life without parole. Parliament has also created a standard non-parole period of 20 years that applies in the circumstances of this case. I have kept each of those important guideposts firmly in mind.
In neither the trial nor the proceedings on sentence did the Crown allege that the offender possessed an intention to kill the deceased. Both parties were agreed that I am to impose a sentence that reflects no more than an intention to inflict grievous bodily harm. Nor did the Crown submit that the ultimate penalty is called for in this case.
The offence
The offender was born in August 1986, and accordingly at the date of the fatal assault was aged 26 years. The deceased was born in September 1984, and accordingly in late June 2013 was 28 years of age.
By 30 June 2013, the offender and the deceased had been very close friends for many years. They had grown up together in the south western suburbs of Sydney. The offender and his then-wife, Ms Simone Beattie, were also very close to the family of the deceased.
Some time before the fatal incident, the deceased, his partner Ms Casey Williams, and her children had moved away from the area, and made a fresh start in Port Stephens. They were living in a townhouse in the suburb of Corlette, quite near to the Nelson Bay RSL. At the time of the offence, Ms Williams was pregnant with a child of the deceased.
On Friday 28 June 2013, the offender and his wife travelled by car from Sydney to Corlette. They were planning to watch the deceased play rugby league the following afternoon, and to stay over the weekend with his family at their home. The mother of the deceased, Ms Lisa Carr, travelled with them. Some amphetamines were ingested on the trip north. On the Friday evening, after their arrival at the home, things passed happily and unremarkably.
On the Saturday morning, the offender and others made a trip to a local hotel, so that bets could be placed with the TAB. It was also at that time that the offender began to drink alcohol. By the time of the fatal assault at about 3 am the following day, he had consumed well over 30 mixed drinks of vodka and apple juice. He was able to drink that enormous amount because of a well-developed tolerance to alcohol, combined with the ingestion of amphetamines throughout the day. Those two factors meant that he remained on his feet and alert when many others would have been unconscious.
A friendly lunch took place, followed by attendance at the football game. After that the offender, his wife, the deceased, his partner, the mother of the deceased, and the children enjoyed dinner at the same hotel. Again, the atmosphere was a happy one.
Subsequently, the offender and the deceased travelled to the RSL club to which I have referred. They continued drinking there. At a later stage, the two of them were asked to leave by security. The offender, by this stage well affected by alcohol, became argumentative. The police needed to become involved. The offender and the deceased eventually departed, but not before the offender had made very aggressive and unpleasant statements to the police.
Eventually, Ms Beattie and Ms Carr collected the two intoxicated young men from the waterfront near the RSL club and drove them home. There the socialising and drinking continued. By this time it was the early hours of the Sunday morning. The offender took the medication Seroquel, which he had been prescribed to deal with his bipolar disorder, a topic to which I shall return later. He also saw fit to add to the enormous amount of alcohol, the amphetamines, and the prescribed medication that he had consumed by taking a tablet of Xanax. That is a prescribed medication, but it had not been prescribed to the offender. The position of the offender is that he has no memory of events from that point on.
Thereafter, a dispute developed between the offender and his wife. It was generally felt that the offender had spoken too harshly to Ms Beattie, and the deceased became involved to some degree in the ill-feeling. The offender and the deceased ended up in a separate flat below the townhouse. Ms Beattie, Ms Carr, and Ms Williams were all up and about at this time, though the children were sleeping.
The offender and the deceased were standing very close to each other inside the flat. The deceased expressed his love for the offender as a brother. I have my suspicions about the state of mind of the offender at that stage, but I act upon the concession of the Crown that one cannot be satisfied beyond reasonable doubt of any aggravating factor in that regard. Accordingly, I put my suspicions to one side.
What is clear is that the offender began to bash the deceased savagely. The deceased made no effort to defend himself, despite encouragement to do so by his mother, who was present and observed the fatal attack upon her son. The beating extended over a few minutes at the least. The offender used sufficient force to break one of his hands during the course of the beating. He also used a weapon in the form of a standing fan that ended up being broken into pieces. At one stage Ms Beattie, who was also present, tried to interrupt the offender by asking him to think of their child, but he merely stared at her blankly. The attack ended with the deceased very badly injured, but alive and semi-conscious.
Emergency services were called at 3.02 am. In that telephone call, Ms Carr described her son as having been "beaten to a pulp".
The police arrived promptly. In accordance with the culture of which the adults at the premises were a part, no one was prepared to cooperate with the police by telling them frankly what had occurred. The offender had not fled the scene, and remained inside the flat with the deceased. The offender behaved very aggressively towards the police, and threatened them with violence. He also hindered their investigation of what he had done by trying to lock them out of the flat. That conduct constituted the offence of hindering police. Pursuant to s 546C of the Crimes Act 1900 (NSW) that is a wholly summary offence that carries a maximum penalty of imprisonment for 12 months. After a short time, the police used force to subdue the offender and arrested him. The deceased was taken from the home by ambulance and admitted to hospital.
The offender was driven to a police station some distance away and placed in a holding cell commonly known as a dock. At some stage whilst inside that cell he urinated, and he has admitted by his plea that he recklessly damaged police property in doing so. That forms the basis of the second charge on the certificate, and pursuant to s 268 and Table 2 in Schedule 1 of the Criminal Procedure Act 1986, the available sentence in the Local Court is imprisonment for 2 years.
Whilst the offender was detained, the police sought to remove his wedding ring. He became very aggressive yet again, and committed the third offence on the certificate of assaulting a police officer in the execution of his duty. Again, the available sentence is imprisonment for 2 years.
Eventually the offender either fell asleep or passed out. When he awoke, many hours later on the Sunday afternoon, he had no memory of what he had done. Indeed, in his first telephone conversation with his wife, he expressed concern about his hands, rather than about anybody else. I accept that he was genuinely shocked when he was told by his wife that his close friend was gravely injured, and that he, the offender, was responsible for his injuries.
For some days the recovery of the deceased appeared to be progressing well. However, on 7 July 2013, he tragically passed away. By pleading guilty to manslaughter, the offender accepted that the severe beating that he administered to the deceased had substantially contributed to his death.
In the meantime, the offender had been charged with an offence of violence against the deceased and admitted to bail. When he heard that the deceased had died, he handed himself in to a police station. That was on 8 July 2013; Mr Beattie has been in custody ever since.
Assessment of objective seriousness of offence
Every murder is an offence of the utmost seriousness, constituting as it does the taking of the life of a fellow human being in the gravest circumstances known to law. Nonetheless, it is possible to make an assessment of the seriousness of each example of the offence of murder, and it is necessary to do so in order to give content to the maximum penalty and the standard non-parole period.
Here, the intention of the offender was to inflict really serious physical injury, and not to inflict death. As a result of his gross intoxication by a number of substances, the offence was unplanned and spontaneous. Were it otherwise, the offence would not have been committed in the presence of witnesses, not least the mother of the deceased. I am unable to be satisfied beyond reasonable doubt about the motive for the offence, and am forced to ascribe it to an irrational outburst brought on by gross intoxication. All of those factors are in favour of the objective seriousness of the offence being assessed less severely.
To be weighed against those matters is the fact that the fatal assault was a severe and sustained beating. It was not a single punch or kick, or anything like it. It was also unprovoked, and had no flavour whatsoever of self-defence. It was inflicted upon a man who refused to defend himself against someone whom he loved as a brother. A weapon was used. The assault occurred in the home of the deceased, where the children of Ms Williams were sleeping, and where the offender was a guest. I have not forgotten that the fatal assault was witnessed by two women who loved the deceased very deeply; namely, his mother and his pregnant partner.
In all of the circumstances, I accept the submission of the Crown Prosecutor that the murder falls below the middle of the range of objective seriousness, but not to a great degree.
Subjective features
I turn from a discussion of the offence to a discussion of the life of the offender.
Plea to manslaughter and remorse
As I have said, the offender pleaded guilty to the unlawful homicide of the deceased. He did so whilst having no memory of the fatal assault. All that was in question was his intention. At the end of the trial, the offender was found guilty of an offence that was greater than he had admitted, and accordingly there can be no utilitarian discount for his plea of guilty: see, for example, R v Oinonen [1999] NSWCCA 310. Nevertheless, the offender deserves some credit for the highly focused way in which the trial unfolded, as a result of his admission of so many matters: see s 22A Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act).
Separately from that, I accept on the balance of probabilities that the offender is remorseful for what he has done. The evidence for that comes from his plea; the fact that he handed himself in when it became clear that he would be charged with murder; and the things he has written and said, including on oath. He has spoken of his remorse for what he has done, despite his amnesia of it, to many persons, including a psychologist.
Although some of the remorse expressed by the offender is to be explained by his regret about the fact that he must spend many years in custody for his actions, nevertheless by no means all of it is to be explained in that way. I accept that the offender bitterly regrets what he has done, and even now struggles to deal with the enormity of it. I also accept that, for many years into the future, he will suffer from the loss of a man whom he regarded as his brother, a loss that the offender knows occurred at his own hand.
Background of the offender
The following matters were described in a psychological report that was tendered in the case for the offender on sentence, and confirmed by the offender on oath. The Crown Prosecutor did not dispute them.
The offender grew up in Camden, a rural town on the edge of Sydney. He enjoyed a happy and stable upbringing that was free of deprivation or abuse. He left school in year 10, and undertook a number of unskilled jobs. At the time of the offence, he was working as a forklift driver and warehouse man.
By the time of the offence he had fathered two children to two different women, one of whom was his wife.
His mother has suffered from depression, and he himself was diagnosed with bipolar disorder in 2011. He was prescribed medication for that condition.
The offender commenced to drink alcohol at the age of 14, and by the time he was aged 21 he was a binge drinker. Over the years, alcohol became a central part of his life. As well as that, he commenced to abuse cannabis at the age of 15; amphetamines at the age of 17; and cocaine at the age of 21. He has used other prohibited drugs on occasion.
Psychological assessment
The psychologist expressed the opinion that the offender had become dependent upon prohibited drugs and alcohol by 2013. He also assessed the offender as an impulsive man; troubled by substance abuse; self-destructive in his approach to life generally; and volatile in his relationships. He also assessed him as a man of poorly controlled anger, prone to outbursts of temper and aggression. The psychologist thought that the offender is a person of fragile self-esteem, vulnerable to the real or imagined slights of others.
I accept all of those assessments. Apart from anything else, they are thoroughly consistent with the events of the evening and early morning that culminated in the fatal assault upon the deceased.
The psychologist expressed the view that the offender is severely anxious and depressed in custody. He is medicated for those two conditions, as well as for his bipolar disorder. The offender suffers from no other serious psychiatric illnesses, and is physically well. He is now almost 29 years of age.
The psychologist put forward the firm view that depression, anxiety, and bipolar disorder had nothing to do with the commission of the offence. Rather, it was the product of the combined force of aspects of the personality of the offender and his gross intoxication by various substances.
Other adverse conduct
The offender is not a person of good character. Although his criminal record is not extensive, it is instructive. It is convenient to consider its entries in the order in which the offences were committed.
In 2009, when he was aged 23, the offender drove with a middle range of alcohol in his blood, and was fined.
In June 2010, he committed the offence of assault occasioning actual bodily harm. The offender gave evidence in the proceedings on sentence that that was a drunken interaction with another person at a licensed club; he has little real memory of the incident. On 13 October 2010, he was fined and placed on a 12 month bond that expired on 12 October 2011.
Less than one month later, in July 2010, he possessed or used a prohibited weapon without a permit. The details of that offence were not placed before me. In the District Court on 2 February 2011, he was placed on a two year bond for that offence. That bond expired on 1 February 2013; that is, less than five months before he committed the most serious offence known to law.
In the same month, he also supplied a prohibited drug. Again, the details of that offending were not placed before me. Offences of possessing a prohibited drug and dealing with property suspected of being the proceeds of crime were taken into account on a Form 1 in due course. For the supply, he was sentenced to a head sentence of imprisonment for 18 months commencing on 2 February 2011 and concluding on 1 August 2012. A non-parole period of nine months was served until his release from prison on 1 November 2011. Again, it can be seen that his parole expired less than one year before he committed the offence of murder.
Quite separately from his criminal record, in February 2014, whilst bail refused on the charge of murder, the offender engaged in a telephone conversation from prison with his former wife. He was well aware, of course, that the telephone conversation was being monitored. To state things succinctly, his wife raised the probability that their romantic relationship was coming to an end. The response of the offender was to threaten that he would arrange the murder of any man with whom she was intimate whilst he was in custody. In the witness box before me, he accepted that he had intended that that threat to arrange a contract killing of any man who replaced him in the affections of his wife would be taken seriously by her.
It is true, as defence counsel submitted, that there is no evidence that any such steps were actually taken. I also accept that the world of the offender was, at that stage, continuing to collapse around him.
Having said that, the fact that an offender who is bail refused for a brutal murder would see fit to threaten his wife that he would arrange a contract killing, in circumstances in which he well knew that the call would be monitored by the authorities, hardly instils confidence in his character or his prospects for rehabilitation.
In short, on the one evening the offender brutally murdered a man. On the same night he threatened police on more than one occasion, and was violent towards them. In the past, he had been involved in some sort of drunken altercation and inflicted actual bodily harm upon the victim. Furthermore, he has possessed or used a prohibited weapon. After the murder, he threatened to arrange a contract killing.
It is impossible to avoid the conclusion that the offender is a person prone to actual or threatened violence. On the other hand, I am not satisfied beyond reasonable doubt that, on the morning that he commenced to drink vast quantities of alcohol, the offender affirmatively knew that he was liable to become violent as a result. I am satisfied beyond reasonable doubt, however, that anger and violence (either actual or threatened), along with the abuse of alcohol and prohibited drugs, have been features of the life of the offender for some years.
Approach to intoxication
The evidence taken as a whole, both from the trial and on sentence, amply shows that the offender has serious and long-standing problems with alcohol and drugs. It is to be recalled that he had consumed a huge quantity of alcohol on the day and evening in question. It was supplemented by ingestion of amphetamines, along with prescription medication, some of which had been prescribed to him and some of which had not. On the evening in question, the combination of aggression, alcohol and drugs became a lethal one. Nevertheless, in accordance with s 21(5AA) of the Act, the self-induced intoxication of the offender at the time that he committed the offence is not to be taken into account by me as a mitigating feature. Defence counsel did not submit to the contrary.
The future
The psychologist who assessed the offender was cautious about his prospects of rehabilitation. Nevertheless, he was of the opinion that, if the offender were able to address his issues with drugs and alcohol, and his anger and aggression, his prospects would be "generally positive".
Separately, the offender is spoken of very highly in the other documents tendered on his behalf on sentence. They were authored by his mother, an older family friend, and a close friend from work. It seems that he was the school captain of his primary school in year six, and was a gifted student, both academically and on the sporting field. He is also spoken of as a hard worker, a good father, and a firm friend. I accept that he will have a substantial amount of love and support available to him in the years ahead.
Turning to make my own assessment of the prospects of rehabilitation of the offender, whilst in custody he has failed two drug tests. I accept his evidence that that those failures were the result of him illicitly obtaining from other prisoners a sedative or synthetic opiate that he used simply to sleep and relax. It is noteworthy that he has not been convicted of any offences against prison discipline to do with violence in the many months since he came into custody.
As well as that, I accept that the offender has come to see the catastrophic consequences to all concerned of his abuse of alcohol and drugs, and that he must address his unresolved issues with regard to anger and violence. I think it is imperative that he be offered, and accept, help with regard to those issues in the years ahead. It will not be easy for the offender to free himself from his tendency to aggression whilst serving many years of imprisonment in maximum security. Nevertheless, if that offer of help is made and accepted, and if the offender is able to overcome the aspects of his personality that have underpinned his offending, I have a guarded optimism about his prospects of rehabilitation.
Various matters
I turn briefly to discuss various aspects of my task.
I was provided with a number of comparative cases from the Bar table. That was of assistance. But because each case must turn on its own facts, I shall not detail those other matters.
I do not propose mechanistically to work through the aggravating and mitigating factors contained in s 21A of the Act that I have found to be established. These remarks on sentence fulfil that role. I have referred myself to the section with the assistance of the submissions of counsel, and have taken care to avoid double counting.
It was agreed between the parties that any sentence should commence on the date that the offender came into continuous custody, that being 8 July 2013. For abundant caution, I shall backdate that by one further day to give credit for the period that the offender spent in custody from the early hours of the morning until the afternoon of 30 June 2013.
The three offences on the certificate, whilst not to be dismissed as trivial, pale into insignificance when compared to the offence of murder. The Crown Prosecutor expressed his contentment with a sentence structure whereby the sentences for the certificate offences are completely concurrent, not only with each other, but also with the non-parole period of the sentence for the murder. I shall adopt that course, and shall impose for the certificate offences fixed terms that reflect the head sentences that I would otherwise have imposed: see s 45 of the Act.
I am required by s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) to inform the offender that, once he is convicted and sentenced for this offence of serious violence, he will be liable to be detained even after the full expiry of his head sentence, if he is judged to be a danger to the community.
Defence counsel did not submit that special circumstances had been made out that would permit a variation in the usual ratio between the non-parole period and the head sentence for the offence of murder. Nevertheless, I have turned my mind to the question. The offender is not a person who has been free of criminality in the past. He has been imprisoned before, albeit for a short period. And the parole period that I shall impose must inevitably be very substantial. In the circumstances, I am not satisfied that special circumstances have been established.
Victim impact statements
Ms Lisa Carr read her own victim impact statement, which was also tendered in evidence. In that document, she describes the lacerating pain that she has suffered as a result of the loss of her youngest child. I accept that that pain has been made even harder to bear because she saw her son fatally bashed with her own eyes. She describes his murder as having torn an entire family apart. And she poignantly explains that all family celebrations such as Christmas and birthdays are now conducted at the graveside of her son.
Ms Kristy O'Brien, the elder sister of the deceased, read her own victim impact statement. It was to similar effect. She describes how many are simply going through the motions of living, rather than obtaining any enjoyment from life. She details the psychological difficulties that she has suffered as a result of the loss of her brother. And she explains that the loss is that much harder to bear because it was inflicted by a man whom everyone regarded as family.
In short, the life of a much-loved son, brother, partner, and now father has been lost as a result of the infliction of senseless alcohol and drug-fuelled violence.
Because there was no application by the Crown to the contrary pursuant to s 28(4) of the Act, I have dealt with those statements in accordance with long-established principle: see R v Previtera (1997) 94 A Crim R 76.
On behalf of the Supreme Court of New South Wales, I extend my condolences to all of those who have suffered, and who will continue to suffer, as a consequence of the murder of Dennis O'Brien. It is possible that the conclusion of the proceedings today will provide some closure. But I accept that the effects of the events of the early morning of 30 June 2013 will be felt for decades to come.
Imposition of sentence
Matthew Beattie, you are convicted of the offences of hindering police, recklessly damaging property, and assaulting a police officer in the execution of his duty. With regard to each offence, I impose a fixed term of imprisonment for 9 months that commences on 7 July 2013, and that expires on 6 April 2014.
Matthew Beattie, you are convicted of the offence of murder. I impose a non-parole period of 15 years, to date from 7 July 2013. That will be followed by a parole period of 5 years, to commence on 6 July 2028 and to expire on 6 July 2033. The first date upon which you will be eligible for parole is 6 July 2028.
To express my orders another way, I have imposed a total head sentence of imprisonment for 20 years to commence on 7 July 2013, with a total non-parole period of 15 years.
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Decision last updated: 17 July 2015