R v BEAUCHAMP

District Court of NSW|2024-03-08|Before: Mr P

REMARKS ON SENTENCE

The offender was originally committed for trial in respect of a number of charges. Pleas of not guilty were entered at the arraignment at the Wagga Wagga District Court on 15 October 2021. A trial commenced but aborted. The retrial commenced on 8 August 2023. On 11 August 2023 the offender pleaded guilty to one count on an indictment, namely that he: "on 24 October 2020 at Junee in the State of New South Wales, did break and enter the dwelling house of Shane Sweeney at 13 George Street, Junee and then in the said dwelling house did commit a serious indictable offence, namely, larceny, in circumstances of aggravation, namely that he was in the company of Tristan Lee, Zarah Hart and two other persons".
It is agreed between the parties that the offender is entitled to a discount of 5% for the utilitarian value of the plea of guilty. Independently I agree that that is the appropriate discount for the utilitarian value of the plea.
The maximum penalty for the offence to which the offender has pleaded guilty is 20 years imprisonment. Parliament has specified a standard non-parole of 5 years in respect of the offence.
In addition, when passing sentence, the offender asks that I take into account a charge of Wounding In Company that attaches to a Form 1 document. In passing sentence I will need to apply the principles enunciated by the Court of Criminal Appeal in the Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146, otherwise known as the Guideline Judgment on Form 1 matters. Although the criminal liability of the offender is essentially one of common purpose, given the nature of the charge there must be some impact on the ultimate sentence that is imposed.

Assessment

The offending occurred at residential premises in the early hours of the morning. The offender was one of a number of people who broke into the premises. It would seem no damage was occasioned to the premises by reason of the breaking. The fact of the wound is taken into account by the matter attaching to the form one document. It is accepted by the Crown that the offender and the people with whom he was in company went to the victim's premises in order to purchase drugs. The larceny was opportunistic. The property taken although no doubt very important to the victim was nevertheless not substantial. The person Lee took a far more active role in the offending than this offender. In all the circumstances, noting the decision of Hunter v R [2011] NSWCCA 141 at [52] per Adams J, the matter is moderately below mid-range.

The co-offenders

Tristan Lee was committed for sentence from the Local Court in respect of a charge of Intimidation contrary to s 13 of the Crimes (Domestic & Personal Violence) Act, 2007 and further charge of Specially Aggravated Detain for Advantage contrary to s 86(3) of the Crimes Act, 1900. An offence of Reckless Wounding In Company contrary to s 35(3) of the Crimes Act was taken into account on a form 1 document. Lee was sentenced on the basis that he was the main perpetrator. The facts recite that Lee knew the victim from his time in Junee Correctional Centre, that it was Lee who was armed and Lee who struck the victim. Lee was the leader telling the others what to do.
He was sentenced to an aggregate sentence of six years and three months imprisonment commencing on 12 June 2021 and expiring on 11 September 2027. A non-parole period of four years and three months was imposed, expiring on 11 September 2025. An appeal asserting manifest excess was dismissed.
While parity is something which must be considered, noting the nature of the criminal enterprise, it does not have significant work to do in this sentencing exercise noting the difference in the charge, the difference in the criminality and the fact that Lee was the principal offender.
Zarah Hart appeared at the Downing Centre District Court on 9 June 2023 having pleaded guilty to one charge of Aggravated Enter Dwelling in Company with Intent to Steal. After a discount of 10% she was sentenced to a total of 2 years 8 months with non-parole period of 4 months. I am favoured with the facts in the matter relating to Zarah Hart but the bundle does not contain her criminal record.
Again, noting the different charge and the difference in criminality, while parity is something that must be considered it does not have much work to do in this sentencing exercise.

Criminal History

The offender was born on 31 December 1980 and accordingly he was 39 years of age at the time of offending and 43 at the time of sentence. The offender has a lengthy criminal history including numerous convictions for dishonesty, violence and serious driving offences including drive while disqualified. For more abundant caution noting the decision of Dungay v R [2020] NSWCCA 209. I ignore the Children's Court history.
The offender was sentenced at the Wagga Wagga District Court on 18 February 2008 for the offence of Armed with Offensive Weapon Enter Dwelling House and Commit a Serious Indictable Offence. The remarks on sentence of his Honour Judge Norrish KC indicate that the serious indictable offence was Intimidation. He was sentenced to imprisonment which was suspended.
The Crown tender bundles contains the remarks on sentence of Judge Norrish KC as set out above, his Honour Judge Bozic SC of 1 June 2018, her Honour Judge English of 23 October 2015. The 2015 matter related to an offence of Aggravated Break and Enter and Commit Serious Indictable Offence. A total sentence of 3 years with a non-parole period of 18 months was imposed. The 2018 matter also related to a charge contrary to s 112(2) of the Crimes Act. A total sentence of 5 years 9 months was imposed with a non-parole period of 2 years 9 months.
On 5 November 2021 I sentenced the offender to a total sentence of 5 years 3 months in respect of a charge of Robbery with a Dangerous Weapon. A non-parole period of 3 years 6 months was imposed. To date there has been no appeal lodged in respect of that sentence, the non-parole period of which expires on 10 August 2025.
Minds might differ as to the use to which a court should put the criminal history of the offender. However, I will perhaps err on the side of generosity and deal with the record as one that does not entitle the offender to any particular leniency. While I do not deal with the record as an aggravating factor, nevertheless there must be some element of specific deterrence factored into the sentence to be imposed.
Further, the offender was on conditional liberty, namely parole, at the time of the commission of the offence for which he now appears for sentence. The Crown cover sheet also indicates that he was serving a period of imprisonment of 9 months by way of Intensive Correction Order at the time of the offending. Page 13 of the Criminal History sets out that that was in respect of a charge of Possess or Use a Prohibited Weapon without Permit.
Accordingly, the factor of statutory aggravation provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act, 1999 is enlivened, namely the commission of further offending while on conditional liberty.
I note that parole was revoked in respect of the sentence imposed in 2018, i.e. the sentence imposed by his Honour Judge Bozic SC. Parole was revoked on 2 December 2020 and the balance of parole of 2 years, 5 months and 2 weeks was served from 11 November 2020 to 24 April 2023. The issue of totality is one of the many complications to this sentencing exercise.

Subjective Case

No oral evidence was called by or on behalf of the offender. However the court is assisted with a number of reports, namely: Exhibit B: Sentence Assessment Report dated 28 November 2023; Exhibit 1: Report from Mindways Psychological Services of 12 October 2021; Exhibit 2: Report from Mindways Psychological Services of 20 December 2023; Exhibit 3: Report from Dr Ahmed of 4 September 2023; and Exhibit 4: Letter from Newpath Lawyers of 4 March 2024.
The report from Mindways in exhibit 1 (report of 12 October 2021) was prepared for the sentence proceedings before me and relate to the sentence that the offender is presently serving. The Report from Dr Ahmed is a medico/legal report relating to a claim the offender has in respect of him being the victim of sexual abuse while in juvenile custody.
I will first of all go to the sentencing assessment report. Records described him as having a positive attitude and strong work ethic, relating to his custody based employment. The offender told the author of the report that he was associating with negative peers involved in drug-related crime at the time of the offending. He was homeless and this was in the view of the offender a factor that contributed to his offending. He indicated some degree of remorse to the author of the report noting that, "Mr Beauchamp verbalised how he had been there (victim) and is not a good feeling". His response to supervision on the last occasion was satisfactory and he engaged well for the most part reporting as required and involved himself with some engagement with services.
Going to the Mindways report of 12 October 2021, it is clear that the factors enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened to a substantial extent. The offender reported an extremely unstable upbringing with little parental guidance. His parents abused alcohol and illicit substances and his father grew cannabis at the home. He was also sexually abused by a family friend. His father was aggressive and violent towards all members of the family and he was frequently exposed to domestic violence.
The offender attended schools in Narrandera but was frequently absent from school because of the unstable home environment. He was diagnosed with ADHD when he was in year 6. He was prescribed medication but was non-compliant because of the side-effects. He was expelled in term one of Year 8 because of ongoing behavioural issues.
So far as work history is concerned the offender has worked as a roofer, until that employment was terminated because of the onset of the Covid 19 pandemic. He has also worked as a shearer and a concreter on and off since leaving high school.
The report notes that the offender experienced his first epileptic seizure at the age of 18, and his seizures were often triggered by increased alcohol consumption and significant stress.
Further, the offender has a significant history of abuse of substances noting that he commenced using cannabis at the age of 11 years which increased to 1.5 g per day at the age of 15 years. He was introduced to heroin at the age of 14 or 15 and began using crystal methamphetamine at 19 years of age. He has also abused prescription substances namely Fentanyl. He commenced using alcohol at 13 and by the age of 23 he was consuming large amounts of alcohol throughout the day. The report notes that the offender was prescribed Suboxone in June 2000 and he was placed on the methadone maintenance program in 2003 and 2012. He reported receiving an injection in November 2020 but the author of the report did not have access to the medical records to verify the information. The offender has participated in Alcoholics Anonymous and continues to attend Narcotics Anonymous meetings while in custody.
The author of the report (Susan Howil) opines that the offender met the criteria for the diagnosis of conduct disorder - adolescent onset-type. She also opines that the offender met the diagnosis the post-dramatic stress disorder.
So far as the latter diagnosis is concerned the author noted that the offender reported an extremely unstable upbringing, that he reported criminality and stated he was exposed to violent crimes. He also reported parental neglect and exposure to problematic substance abuse. He was also sexually abused by a correctional officer while in juvenile detention of the age of 13 years of age. The abuse occurred on multiple occasions. He reported suicidal ideation for several years and stated that his substance abuse escalated following the sexual abuse. In respect of the diagnosis of PTSD the author helpfully notes (page 9) that: "PTSD is a disorder of reactivity and avoidance and its psychopathology is characteristically expressed during interactions with the interpersonal or physical environment. It is for this reason that individuals with PTSD are consumed by concerns that personal safety and they persistently scan the environment threatening stimuli. The difficulty encountered in treating PTSD is that individuals are not able to process the fact that the threat which was previously present in their life (such as experiences in war) no longer poses a risk once person has relocated to another environment. To the individual with PTSD the threat is always present and they sometimes act inappropriately as they construe their environment as dangerous and threatening."
However, I did not understand the author of the report to opine there was a causal connection between the PTSD and the offending. The offender also suffers from substance use disorders.
The author set out a comprehensive treatment program. It is quite plain that the offender will need substantial ongoing treatment and counselling to address the various issues with which he is confronted.
I turn now to the most recent report from Mindways, which I note was prepared by different psychologist. It deals with many of the issues in the early report, which I will not repeat. The author at page 7 of the report notes that the offender has been on the Buvidal (depot) injection 160 mg per month. The author notes that this also reduces the craving for methamphetamines.
The author opines (page 8) that the offender meets the criteria for the diagnosis of antisocial personality disorder. She also confirms the post-traumatic stress disorder with associative symptoms and complex post-traumatic stress disorder.
The report goes into some considerable detail setting out the effects of sexual abuse, developmental trauma and the relationship to recidivism and intergenerational transmission of risk and the consideration of Bugmy. As I understand the report, that part of the content of the report is drawn from other research and is not specific to this offender.
However, the contents of the report at pages 17-19 indicate there is a significant need for ongoing treatment and counselling. This together with the issue of partial accumulation of sentence and concerns about the issue of institutionalisation warrant a finding a special circumstances. I observe that the finding will be more generous than might be justified objectively given the offenders criminal history and the offending. However, there is a very real issue of totality to be considered in this sentencing exercise.
I now turn to the medicolegal report prepared by Dr Ahmed dated 4 September 2023. This report as previously indicated has been prepared for a claim for damages the offender seeks to bring against the authorities in respect of the sexual abuse to which he was subject whilst in juvenile detention. According to the report the offender suffered sexual abuse whilst he was an inmate at two different juvenile justice institutions. The sexual abuse included being anally raped and what I will refer to as a matter of convenience as indecent assaults or sexual touching. The abuse occurred on a number of occasions.
Dr Ahmed confirms the diagnosis of PTSD. At page 12 of the report he notes that the offender has a deep moral injury relating to the abuse compounded by the invalidation he experienced attempting to disclose to others in positions of care authority. The offender also suffered significant physical injuries as a result of the anal rape, which required surgical intervention.
Further, what have become known in shorthand terms as the "Bugmy factors" are referred to in some detail. The contents of Dr Ahmed's report fortifies me as to my earlier findings that those factors are enlivened to a significant extent as far as this offending is concerned.
Dr Ahmed also notes (page 15) that the offender's violent impulses are generally triggered by thoughts of abuse or external triggers relating to child abuse. He goes on to opine a characteristic of PTSD is violence without provocation related to the heightened sensitivity to potential threats as well as the impaired social processing leading to an increasing likelihood of exhibiting hostile attributions to others and tension.
Dr Ahmed diagnoses the offender to have complex PTSD, opiate dependence, alcohol dependence and recurrent major depression, which is in remission. He goes on to opine (page 16) the offender does not currently have pervasive depressive symptoms but all other conditions remain severe and persistent. Further, periods of abstinence are possible with sustained motivation and treatment however vulnerability to relapse will remain lifelong in particular in the context of continuation of PTSD symptoms. Dr Ahmed's opinion is that the sexual abuse sustained by the offender while he was detained in juvenile justice is the most significant contributing factor to his current psychological conditions.
At page 19 and continuing his report Dr Ahmed goes into some detail as to his recommendations for ongoing treatment of the offender's psychological conditions. That part of the report certainly fortifies me in my finding made already that the offender is going to require significant assistance so far as these issues are concerned.
The letter from New Path Legal does not advance the case beyond what is in the very comprehensive psychological reports.
On the criminal history of the offender and the number of breaches of conditional liberty committed by the offender over the years taken with the assessment in the sentence assessment report that the offender is at a medium high risk of reoffending I am unable to find on balance the offender is unlikely to reoffend. Essentially for the same reasons I am not prepared to make a finding on balance that the offender is unlikely to reoffend.
I have made the point on the number of occasions now that the offender is going to need supervision and assistance upon his eventual release to ensure that he receives the appropriate treatment and counselling for his multiple and complex psychological issues. There is a very real risk that the offender is either institutionalised or so close to being institutionalised that it is of no consequence. In all the circumstances I am not prepared to make a finding that the offender has good prospects of rehabilitation. However, I am not finding that there is no hope of rehabilitation. Much will depend upon the manner in which the offender engages with the appropriate authorities upon his eventual release.
Ms Carr, counsel for the offender, submits in her supplementary written submissions that I would find on balance the offender is remorseful. In this regard I note that part of the sentencing assessment report to which I have already referred. I also note the content of the report from Mindways of 29 February 2024, where at page 4 (para 3.3) the offender expressed to the author, "I'm sorry I was in it. I'm sorry that he got hurt. I'm sorry I didn't stop what happened to him. I apologised to the court that it happened." In the circumstances I am prepared to find on balance the offender is remorseful.

General Remarks

In passing sentence I must give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. Section 3A provides the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
Section 5 of the Act provides that a court must not impose a sentence of imprisonment unless it is satisfied that having considered all possible alternatives no other penalty other than imprisonment is appropriate. Given the offending, the maximum penalty provided, the criminal history and the matter on the Form 1 clearly no other penalty other than imprisonment is appropriate. No contrary submission was made on behalf of the offender. Given the length of the sentence, that sentence of imprisonment must be served by way of full time custody. Again, no contrary submission was made on behalf of the offender.
In her written submissions of 29 November 2023 Ms Carr, counsel for the offender submits that the court should consider referring the offender to the compulsory Drug Court program. In her supplementary submissions of 4 March 2024 counsel abandons this submission indicating her instructions are the offender would prefer to remain at the Junee Correctional Centre, which is close to his support network.
I have dealt with the facts and made an assessment of the seriousness of the matter. I have gone into some detail of the offender's personal background given that I have summarised the three substantial reports tendered on behalf of the offender. I note that counsel agrees that specific deterrence is a relevant consideration in the sentencing proceedings. I agree that what has become known in shorthand terms as the "Bugmy factors" are enlivened in this case to a substantial degree, reducing the moral culpability of the offender accordingly.
On the issue of totality and partial accumulation, Ms Carr submits that while a sentence may not commence on the day the offender was remanded it should not be wholly accumulated on his current sentence. I agree with that submission. However counsel does not go on to suggest or make any submission as to appropriate commencement date of the sentence.
It seems the offender has been in custody continually since 12 April 2021, in respect of a number of offences. The non-parole period the offender is currently serving expires on 10 August 2025. Given the offending with which this present matter is concerned, it would be entirely inappropriate for a sentence to be wholly concurrent with that sentence. However proper regard must be had to the principle of totality. Doing the best I can, admitting there was some degree of pragmatism involved, I propose to commence the sentence on 11 March 2024, which is six months after the offender entered a plea of guilty to the matter presently under consideration. As previously set out, there must be a reasonably generous finding of special circumstances, for reasons already enunciated.
In all of the circumstances, taking into account the matter on the Form 1 document I am of the opinion that the appropriate starting point for the sentence is 3 years 7 months, which with the 5% discount produces a sentence of 3 years and 4 months with some minor mathematical rounding down in favour of the offender.

Orders

In respect of the matter to which the offender has pleaded guilty he is convicted.
Taking into account the matter on the form 1, the offender is sentenced to a non-parole period of 1 year 8 months to commence on 11 March 2024 and which will expire on 10 November 2025. Thereafter there will be a balance of term on parole of 1 year 8 months to commence on 11 November 2025 and which will expire on 10 July 2027.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
The ratio between the non-parole period and the total sentence is 50:50, which is much lower than would ordinarily be justified particularly given the offending and the criminal history. I note the observations of RS Hulme J in R v Boney [2008] NSWCCA 313 at [49]. However, in this matter there is a very real issue of totality.
I note that the offender has been in custody since 12 April 2021. Accordingly, the total effective sentence the offender is serving runs from 12 April 2021 to 10 July 2027, which is 6 years 3 months (75 months). The actual time in custody presuming that the offender is released at the expiration of the non-parole period I have imposed today runs from 12 April 2021 to 10 November 2025, a period of 4 years and 7 months (55 months). The ratio between the total effective sentence and the period in actual custody is approximately 73%.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2024

At a glance

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Judgment (9 paragraphs)

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Cases Cited (5)