R v Becker

R v Becker - [2019] NSWSC 1205 - NSWSC 2019 case summary — Zoe

Objective features

The background to this tragedy is as follows. Both the offender and the deceased were relatively young men: the offender was born in April 1984, and was accordingly aged 33 years, and the deceased was born in April 1986 and was aged 31 years at the time of his death. Each of them was part of a criminal group that was in the business of supplying amphetamines. The offender had developed a serious dependence upon the prohibited drug ice, and I infer that problematic contact with prohibited drugs may have led the deceased into supplying such substances as well.
Each of them was employed by an older man who was obviously a significant criminal, and who had access to large sums of cash and firearms. That person had recently lost well over $100,000 as part of his drug dealing business, and he subsequently decided to arm his employees. The offender was provided with a .44 Magnum revolver. In due course, the deceased received possession of a shortened single barrel shotgun. It was known within the criminal group that each of those men was in possession of each of those firearms.
At one stage a rental car was obtained, and provided to the deceased at the expense of the older man. For some unclear reason, the deceased neglected to return it on time, and that failure became a point of dispute between the deceased and his employer.
Eventually in the late afternoon of the day of the offence, the older man, the offender, and the deceased arrived in three separate vehicles at a point on Machinery Drive, Tweed Heads. The deceased remained in the driver's seat of the car in which he had arrived. The older man got out of his car and approached the driver's side door where the deceased was sitting. The offender also alighted from his vehicle; at the time he had over his shoulder a satchel that contained the revolver, which was loaded. He was also grossly intoxicated by amphetamines at the time (of course, I do not mention that as a mitigating subjective feature; rather, in terms of the obvious danger it presented to others in these particular circumstances, I recount it as an objective feature).
A short conversation ensued between the older man and the deceased. During that conversation, the offender obtained the revolver from the satchel. At that moment, the deceased made a movement that suggested that he might have been trying to produce the shotgun from beneath the driver's seat. The offender suddenly fired a single shot from intermediate range, which entered the right side of the abdomen of the deceased and exited from the area of his left hip. The track of the bullet was generally downward, right to left, and back to front.
After he was shot, the deceased drove away for a couple of hundred metres before he passed out. Others in that motor vehicle took over the driving, and promptly took the deceased to a hospital. Tragically, his life was unable to be saved. On one analysis, it was snuffed out over nothing more than a few days' fees for a rental car.
In the meantime, the offender fled the scene. He subsequently spoke to others about having shot the deceased, but of being unaware of the degree of any injury inflicted. He also spoke of the shooting as having been like a "reflex action". He took steps to hide the revolver, and in the event that lethal weapon has never been recovered. He also took steps to escape justice, but was arrested three days after the shooting on 27 June 2017, and has been in custody ever since.
As I have said, I approach this offence of manslaughter on the basis that all of the physical and mental elements for murder have been established beyond reasonable doubt, but the culpability of the offender is reduced to manslaughter by way of him acting in excessive self-defence, in that he honestly believed that what he did was necessary for that purpose, but his act was an unreasonable response in the circumstances as he perceived them.
As for the disputed question of which necessary intention for murder has been established, I think it probable that, in his drug-affected state, the offender spontaneously formed an intention to kill. But the criminal law requires me to be satisfied of any matter in aggravation beyond reasonable doubt. Reflecting on the intoxication of the offender; this spontaneous act; the absence of any evidence of pre-existing motive; the fact that the offender did not shoot the deceased in the head; the trajectory of the projectile; and the things the offender did and did not say after the shooting, I am not satisfied of the graver mental element to the criminal standard. Having said that, it is inescapable that anyone who discharges a high calibre revolver from intermediate range at another human being must intend harm of the most grievous kind.

[6]

General matters

The following review of aspects of the life of the offender is derived from psychological reports tendered without objection and without a request for cross-examination of their author on the part of the Crown prosecutor. I proceed on the basis that the following has been established on the balance of probabilities.
The offender is now 35 years of age. He was born in the Hunter region of New South Wales, but he and his family have lived in the Tweed Heads area for many years. As a boy, his upbringing was unremarkable, and the family was not blighted by violence or abuse of prohibited drugs or alcohol. On the other hand, the offender had a difficult relationship with his father, had trouble concentrating at school, was suspended more than once, and ultimately left school for work at an early age. All of that may have been underpinned by childhood ADHD, with which the offender has been diagnosed as an adult, and for which he has been medicated. It is also the case that psychiatric difficulties have been suffered by more than one member of his family, and I think that that may have made his upbringing more difficult as a result.
His life proceeded unremarkably for many years whereby he enjoyed a romantic relationship with a high school sweetheart for a time, and worked as an interstate truck driver. Gambling was certainly a negative part of his life, but it does not seem to have become unduly destructive.
In 2010, the offender was the victim of a serious assault in a hotel, and I accept that that experience made him hypervigilant and unsettled thereafter. I also accept on balance that the applicant suffered a degree of PTSD as a result of it, and that in turn played some role in him commencing to misuse his prescription drugs.
Notably, before 2015, the offender had never intersected with the criminal justice system, and there is no evidence that he had ever been a person capable of violence, let alone homicide. His former romantic partner has written of the good character and the potential that he possessed at that stage.

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cited By (1)