Mr J Leaver (Counsel for the offender)
File Number(s): 2018/290273
[2]
Judgment
On 12 September 2018, Anthony Beckett who was then 41 years of age, was released from custody having served sentence. On 18 September 2018 he was involved in a violent assault which led to him being found guilty by a jury after a trial in December 2019 of one count under s 33(1)(b) of the Crimes Act 1990, of causing grievous bodily harm with intent. The offence carries a maximum penalty of 25 years imprisonment with a standard non-parole period of seven years.
He has been in custody since 21 September 2018 when he was arrested. It is common ground that a term of full time custody is required and it is unnecessary for me to consider any alternatives.
I have to carry out the sentencing process in accordance with the principles set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and have regard to the maximum penalty and the standard non-parole period as yardsticks in the sentencing process.
The trial was conducted efficiently, and a number of facts which may have been controversial were agreed. In my view a discount of 5% for the value of that cooperation should be reflected in the imposition of the ultimate sentence.
The offending is summarised in the Crown Case Statement which the parties agree is largely an appropriate basis for findings of fact following the jury's verdict.
The victim, 52 year old John Doyle, was staying at a unit occupied by his friend Alan Shepherd in Surry Hills in a housing commission unit complex called the Northcott Flats. In the early hours of 18 September he was sleeping on the lounge; Mr Shepherd was in the unit drinking tequila alone. CCTV recorded Beckett and his partner, Ms Johnson, walk from her nearby unit into Shepherd's unit. The accused went in and came back out and spoke to Ms Johnson. He then went back into the unit and Ms Johnson returned to her unit. Shepherd knew Beckett because he lived on the same floor with Ms Johnson. Shepherd and the Beckett went to the living room of the unit where Doyle, the victim, was asleep on the lounge. Beckett asked for a drink and Shepherd gave him some tequila.
At about 3.39am the CCTV showed Ms Johnson walk to Shepherd's unit, and enter. Ms Johnson says that she saw Beckett and Shepherd in the kitchen drinking and talking while Doyle was asleep on the lounge. She had a chat with Beckett and Shepherd before she left again at about 3.44am.
She said earlier in the night she and Beckett went out and got a vacuum cleaner they found on the street, and when they got home he said to her, "I'm going to bash that cunt Johnny, I'm going to bash him, you watch." Beckett was apparently upset about some assumed interaction between Doyle and Ms Johnson while he had been in custody.
At about 5:01am CCTV recorded Shepherd walking out of the unit and going across to Ms Johnson's unit. The CCTV footage, showed Beckett, at 5:02am, walking out of the unit towards the balcony for a short time and then going back. The footage showed that at 5:04am it Shepherd walking back and going into the unit.
When Shepherd went back into the unit, he saw Beckett standing over Doyle who was still asleep on the couch. He saw Beckett pick up a pair of bolt cutters, which were standing up against a cabinet, an swing the bolt cutters down and hit the victim on the back a few times. The victim woke up briefly and mumbled something. Beckett then picked up a hammer and hit the victim on the leg a few times, "like he was trying to kneecap him." The victim fell onto the floor unconscious and Beckett started stomping on his head.
Shepherd told him to stop but he kept hitting him. He then got some masking tape and used it to hogtie Doyle around his arms and legs. Beckett kept hitting him with the hammer. According to Shepherd, Doyle was bleeding from his back, legs and head. The CCTV footage shows Beckett walking out of the unit about 5.40am. He went to his Ms Johnson's unit, stopping half way to pull down his pants to cover a distinctive tattoo on his calves.
Mr Shepherd untied the victim and dragged him into the bathroom to try and clean him up.
At about 5.45am Police were patrolling Surry Hills, when they saw Ms Johnson who told them they should go to the Shepard's unit. She told them that Beckett had been responsible for what had happened up there.
At about 5.50 am Beckett was shown on CCTV walking out of the unit carrying a sloppy joe with a hood over his head, sleeves down over his hands and dark tracksuit pants on. He appeared to be trying to cover his head with the clothing, and using his sleeves over his hands as he opened the doors.
Police went into the unit just before 6am. The victim was frothing from the mouth and had difficulty breathing. Photographs depicted the serious injuries that he suffered. They seized a pair of bolt cutter and a hammer.
Two days later when Ms Johnson was going to Lithgow with Beckett on the train, she asked Beckett if he had done it. That is, if he had hit Doyle. He laughed and said, "Yes I did, but I had to, it was to stop him hurting Johnny. I had to help Rusty" - that is, Mr Shepherd - "I had to stop him from hurting Johnny," that is, Johnny Doyle, the victim.
The injuries diagnosed by the doctor were blunt force chest injuries including fractures of the sixth, seventh and eighth left ribs, with a tension pneumothorax requiring needle decompression by the paramedics and the insertion of a catheter in the emergency department; extensive subcutaneous emphysema; lacerations of the left finger requiring sutures; a number of facial injuries including bruising, haematoma and laceration of the left ear and a displaced nasal bone fracture; an extracranial haematoma, reduced level of consciousness; and partial airway obstruction necessitating intubation and ventilation. He was taken from emergency to intensive care where he required intubation and ventilation. CT and MRI scans showed the skull fracture which had been suspected, was not detected, and a small amount of bleeding on the brain. The MRI suggested an axonal injury. He was diagnosed with a depressed level of consciousness and prolonged period of disorientation. He was transferred to a rehabilitation centre at Ryde on 5 November and discharged a month later. In summary, he suffered life-threatening chest and head injuries, he returned with good functioning. It is not known whether he sustained injuries with permanent effect on his functioning in the community. The injuries were consistent with assault with a pair of bolt cutters.
Beckett was arrested on 21 September 2018. He participated in an interview in which he said that he had gone into the unit and had a few shots of tequila. Beckett said Shepherd had asked him how he put up with Ms Johnson sleeping around with people. He said he heard a bang like a fist on the face and heard the victim going "aah." He said by this stage he, Beckett had gone into Shepherd's room and laid on the bed by himself. He said he told Shepherd to stop but Shepherd picked up a drill and went for the victim's face.
He went into the bathroom and when he came out he saw Shepherd hitting the victim with bolt cutters. He grabbed the bolt cutters and threw them in front of the TV. He picked the victim up and put him in the bathroom to keep them apart. He said Shepherd then came at him with a blue screwdriver and he grabbed it. He told Ms Johnson to ring an ambulance. He said he had said he panicked because he had just come out of gaol, and he didn't need this. He denied ever assaulting the victim. That version was obviously rejected by the jury.
Mr Beckett's criminal history is fairly accurately summarised in the psychological report; commencing when he was 22 years of age. He has convictions for numerous counts of possession of prohibited drugs, common assault, destroying property, possess implements to enter and drive a conveyance, larceny, and goods in custody. His record increased in severity and nature from about 2014, progressing to more violent offences such as assault occasioning, damage property by fire, demanding property by force, robbery, demand property with menace with intent to steal and stealing from a person. He had numerous periods of imprisonment imposed, particularly over the period from 2014 until 2018.
His subjective case is set out in a report of a psychologist which is based upon a life story authored by Mr Beckett, as well as an interview. It is not tested or adopted and is subject to the cautions that are set out in cases such as Imbornone v R [2017] NSWCCA 144 and R v Qutami (2001) 127 A Crim R 369, and although unsupported and uncorroborated, it does seem to be a reasonable basis as much of the material appears to be consistent with the evidence in the trial as to his circumstances.
As the Crown points out, the psychologist discerned that he was someone who lacked insight into a number of aspects of his life and circumstances including lacking insight into the relationship between his upbringing and his subsequent drug use and engagement in the family, and lacking insight into the reasons why his children were removed from his partner's care.
He was the only child borne of his parents' union, and they separated when he was two. His mother left due domestic violence and her partner's drinking. He has had no contact with his biological father, but his father has attempted to support him more recently. His mother re-partnered when he was aged seven and his life after that was marred with physical and psychological abuse. His step-father would make him do humiliating acts. He started running away from home from the age of 14. He says his experiences within the family home led to aggression and violence being normalised to Mr Beckett by his extended family. He recognised the support he had from his mother and he attended a number of primary and high schools until year 9. He was bullied at high school and then got into drugs. He completed a panel-beating apprenticeship, and worked for a number of years with the local council. He was struggling with drug use and his employment became more intermittent, notwithstanding that he appeared to have a good work ethic and was willing to engage in employment, but his substance abuse prevented him from maintaining employment.
He was introduced to cannabis, and then heroin, at an early age. By the age of 16 he said he had a "raging heroin habit", attending Cabramatta three times a day in order to buy and sell heroin.
He abstained for about six years, but he returned to drug use within a day or two of his release from custody in September 2018. He acknowledged a desire to receive assistance and to remain abstinent from substance use through participating in programs and rehabilitation. He had spent about two weeks in Odyssey House in 2017, but he had not used any substances for the last 17 months, while he has been in custody.
Substance abuse is obviously recognised as a salient risk factor by the psychologist. His second long-term relationship with Ms Johnson was one based on mutual drug use. All three of their children were removed from their care due to ongoing substance misuse. There was no discussion as to the circumstances of the offending with the psychologist.
The psychologist's formulation was that to cope with trauma, instability and abuse he experienced during his formative years, Mr Beckett had utilised unhealthy coping mechanisms that were normalised to him early in his life, including drug use, to mask emotions and the use of violence as a problem-solving tool which led to him developing antisocial attitudes, including normalisation of criminal activity as a way to receive money to fund drug use. She recommended an intensive program of therapy and rehabilitation, and I would recommend, as does the psychologist, that such programs be pursued both in custody and upon his eventual release.
Turning to the Crown's submissions as to objective seriousness, the facts have been outlined above, at [6]-[19] and the Crown points to additional details, including that Mr Shepherd saw Beckett standing over the sleeping victim and say, "I'm going to kill this prick," and saw him getting worked up and angry, the offender having spoken about his suspicions that Doyle and Ms Johnson had been sleeping together. The Crown submits that the evidence of Ms Johnson and Mr Shepherd shows that the offence was planned, and not spontaneous. The first attack on Doyle with the bolt cutters was while he was asleep and it only stopped when Mr Shepherd intervened. Mr Shepherd said that when the victim came out of the toilet "Anthony just jumped on him and started attacking him again, just hitting and stuff with a hammer". The victim was sort of semi-conscious after the second attack. A couple of times the offender told Mr Shepherd to go and get Ms Johnson, and Mr Shepherd was seen at 5am leaving his unit carrying a bottle in his hand, and he went to try to wake Ms Johnson without success. Beckett was left alone with the victim during this time. To the Crown's knowledge it is not known what happened at this time. He briefly stepped outside the unit for a cigarette, before going in again. He did not appear to be adversely affected by any substance at this time on the CCTV footage as far as one can tell. Mr Shepherd went back into his unit.
About 5:40am, the offender appeared agitated as he went out to wait for Ms Johnson, and he was attempting to cover his appearance as I have indicated. Ms Johnson, Mr Shepherd and Beckett all met up in the lift area and Mr Shepherd told Ms Johnson that the offender had "fucked up and done something". Ms Johnson did not go inside because of the bad smell. She could hear the victim labouring to breathe.
The Crown submitted that the manner of his admissions to Ms Johnson on the train to Lithgow two days later, and his tailoring of evidence in his interview, showed no remorse or regard to making false accusations against Mr Shepherd. The Crown submits that the offender demonstrated "vengeful, mean-spirited and cruel" as described in Adams v The Queen [2011] NSWCCA 47 by attacking the victim more than one assault, despite Mr Shepherd's intervention.
A number of aggravating factors are highlighted, including the use weapons, being the bolt cutter and hammer; the offender's record of violence, which as Howie J said in R v Shankley [2003] NSWCCA 253, does not "increase the objective seriousness of an offence" but that "retribution, deterrence and protection of society, may indicate a more severe sentence is warranted". The offence was committed in the home of the victim in the; the injuries were substantial; the offence involved a series of acts, and there was clearly a limited degree of planning over the time period that I have described.
I am unable to find beyond a reasonable doubt that there was a third more ferocious assault occurred when the offender was left alone with the victim, given the uncertainty of the evidence on that matter, but the violent attack on the victim witnessed by Mr Shepherd, and the serious injuries sustained, demonstrate that the offending was, in my view, slightly above the midrange of objective seriousness.
The Crown correctly points to the need for general and specific deterrence being reflected in the sentence and the non-parole period, and that specific deterrence is particularly relevant here given the previous history of convictions for violence. The Crown referred to a number of cases including R v AB [2017] NSWCCA 88, Wainwright v R [2016] NSWCCA 19, Peters v R [2014] NSWCCA 49 and Duncombe v R [2013] NSWCCA 271, which while not setting a range, indicate the sentences that have been imposed for this offence in differing objective and subjective circumstances.
Mr Leaver's submissions for the offender disputed the proposition that there was some planning, but as I have indicated the events occurring over the timespan indicated at least a limited degree of planning. Mr Leaver noted the psychologist's diagnosis of a severe stimulant use disorder and he pointed to factors, which the Crown concedes, justifies some consideration in terms of the High Court decision in Bugmy v The Queen (2013) 249 CLR 571 requiring the Court to give full weight to an offender's deprived background. His significant drug use which I have recounted is a matter to be taken into account in assessing his prospects of rehabilitation, which Mr Leaver accurately puts as guarded at best. I accept that an extended period of supervision on parole will likely improve his prospects of rehabilitation. It is correct that his record appears to show only one disciplinary infraction not involving violence during his current period of incarceration, and together with the absence of any indication of illicit drug use, is a promising feature of his path to rehabilitation.
In summary, Mr Leaver says that Mr Beckett's maladaptive coping mechanisms and the fact that there is a risk of institutionalisation increase the importance of imposing a sentence that maximises his opportunities for rehabilitation and that there is a basis for a finding of special circumstances, a submission with which the Crown does not cavil, and I find is appropriate.
I have had regard to, as well as the sentences imposed in the cases referred to me by the Crown, a broad range of sentences over a very wide class of cases in the statistics which are, although a blunt tool, of some assistance.
Having regard to the 5% discount referred to at [4], the orders I make are:
1. The offender is convicted of the offence.
2. I impose a sentence of imprisonment of 6 years, 8 months, to commence on 21 September 2018.
3. I impose a non-parole period of 4 years, 2 months, expiring on 20 November 2022.
4. I find special circumstances.
Note - These extempore remarks were revised without access to the court file.
[3]
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Decision last updated: 19 May 2020