R v Beau Steven MITCHELL [2008] NSWSC 320 (18 April 2008)

Last Updated: 21 April 2008

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Beau Steven MITCHELL [2008] NSWSC 320


JURISDICTION:


FILE NUMBER(S):
2006/00004221001

HEARING DATE(S):
18/07/2007, 30/11/2007, 01/02/2008, 04/04/2008

JUDGMENT DATE:
18 April 2008

PARTIES:
Regina v Beau Steven Mitchell

JUDGMENT OF:
Howie J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
T Bailey - Crown
G Turnbull SC - Offender

SOLICITORS:
S Kavanagh - Crown
Matouk Joyner Lawyers - Offender


CATCHWORDS:
CRIMINAL LAW - Sentencing after plea of guilty - manslaughter by reason of provocation

LEGISLATION CITED:
Evidence Act 1995 - s 98
Mental Health (Criminal Procedure) Act 1990 - s 32
Crimes Act 1900 - s 195(1)(b)

CATEGORY:
Sentence

CASES CITED:
R v Walsh [2004] NSWSC 111
R v Marlow [2003] NSWSC 1130

TEXTS CITED:


DECISION:
For the offence of arson the offender is sentenced to a term of imprisonment of 2 years. The sentence is to date from 16 November 2005 and expire on 15 November 2007. For the offence of manslaughter the offender is sentenced to a term of imprisonment for 8 years 3 months to date from 16 August 2006. There is to be a non-parole period of 4 1/2 years to expire on 15 February 2011 the date upon which the offender is eligible to be released to parole. There is a balance of term of 3 years 9 months to date from 16 February 2011.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

CRIMINAL LIST

HOWIE J

FRIDAY 18 APRIL 2008

2006/00004221001 REGINA v Beau Steven MITCHELL

REMARKS ON SENTENCE

1 HIS HONOUR: The offender Beau Mitchell was committed for trial to this Court on 15 December 2006 on a charge of murdering Lindsay Martin whom I shall refer to as the deceased. On 16 July 2007 the offender was arraigned on an indictment containing two counts: a charge of murder and a charge of maliciously damaging property by fire. He pleaded not guilty to both counts.

2 There then followed an application by the Crown to tender coincidence evidence pursuant to s 98 of the Evidence Act. On 17 July Hislop J rejected the evidence. As a result, on 18 July the Crown was granted leave to withdraw the indictment previously presented and substituted an indictment containing two counts, one being a charge of manslaughter and the other a charge of arson. The offender then pleaded guilty to both counts. The matter was adjourned for sentence and eventually came before me. The sentencing proceedings were initially heard in November last year but adjourned on the application of the defence so that a report could be obtained from a psychiatrist after I expressed concerns about the offender’s prospects of rehabilitation.

3 The facts of the matter are contained in an agreed statement. I have also been supplied with some other material by way of witness statements. The deceased was a man aged 73 years, retired and living alone in an apartment. He both assisted and associated with young persons in the area in which he resided. On occasions he would befriend young men and invite them to his home where they were able to consume alcohol. The offender was one such person. The offender had expressed to others that the deceased was a paedophile to his actual knowledge.

4 At about 7.15 pm on 15 November 2005 the offender visited the unit of the deceased. He had been drinking alcohol most of the afternoon. He had a wooden object described as a hammer handle protruding from his shorts. He apparently armed himself with this implement for some other purpose unrelated to the deceased. He later left the unit with the deceased and they went together to a bottle shop where the offender purchased a cask of wine. They returned to the deceased’s unit in the company of another male aged 15 years. This male left the unit at about 8.15pm. At about 9.20pm the deceased rang a friend and said he was with the offender and they were both intoxicated.

5 At about 1.30am the offender struck the deceased a number of times to the head with a hammer. He returned home and told his girlfriend that the deceased was dead. He changed his shirt that had blood spots on it and then left the premises.

6 A short time later the fire brigade attended the deceased’s premises where they found that the front door of the unit had suffered fire damage. The deceased was located in the bathroom bleeding profusely from his wounds and a hammer not far from him. He was taken to hospital but did not recover. His life was declared extinct at 5.30am.

7 The offender and his girlfriend returned to their home at about 2.30am and shortly after the offender slashed his left wrist. He was taken to hospital where he was treated. While in the hospital he told his girlfriend that the deceased was dead and he was scared. Police later arrested him for the murder of the deceased.

8 The offender told a psychiatrist that on the day of the killing he awoke from an intoxicated sleep to find he was in a state of undress and commenced to assault the deceased. He told another psychologist that he awoke to find the deceased fellating him. This claim is supported by the fact that the deceased was fully clothed but with his false teeth in his pocket. The Crown accepted the plea of guilty to manslaughter on the basis of provocation. The offender gave evidence before me that he could now recall being sexually assaulted by the deceased.

9 The offender is aged 24 years. He grew up in the suburbs of Sydney and enjoyed a positive and supportive upbringing but one marked by his behavioural problems. He resided at his parents’ home until incarcerated in November 2005 for the current offences. He had been in a relationship for 10 months until his partner terminated her pregnancy. He does not have a good employment record and has mainly been in receipt of welfare support.

10 He has a criminal record for dishonesty and driving matters dating from 1999. In 2000 he was sentenced in the Childrens Court for aggravated assault with intent to rob and was ordered to perform community service. He has been given the benefit of probation, suspended sentences and community service orders over the years. In July 2004 he was sentenced to imprisonment for driving offences with a non-parole period of 3 months. During his remand for the present offences he was sentenced to 3 months imprisonment in respect of a breach of a community service order for an offence of receiving.

11 The offender has had little involvement in employment apart from a couple of weeks work with a removalist in 2005. He has a history of mental health problems and serious alcohol abuse since the age of 13. He has had numerous opportunities to undertake rehabilitation programmes but without lasting success. He claims to have been consuming alcohol to excess during the period up to the killing as a result of emotional problems arising from the termination of his girlfriend’s pregnancy.

12 There is in evidence a report of a psychologist. He notes that in October 2003 the offender was sent to the United States of America for treatment for what was described as a Dysthymic Disorder, Alcohol Dependence and Schizoid Personality Traits. These personality problems showed themselves in his feelings of inadequacy resulting in drug and alcohol abuse and self-harm. The offender was described as having an extensive history of depression, anxiety and behavioural problems from his adolescence. Unfortunately the offender’s behaviour on return to Australia made it impracticable to place into effect the rehabilitative regime favoured by the psychologist who saw him in America.

13 The circumstances of the visit to the United States are that the offender came to the attention of Father Riley who sought to help him overcome his behavioural disturbances. Father Riley had founded an organisation called “Youth off the Streets”. He came into contact with the offender first as a teacher but assisted him by referring the offender to a drug and alcohol programme. He gave evidence that the offender’s main difficulties were caused through his use of drugs and alcohol. The offender received assistance throughout a period of about 5 years and even after he had passed the age of a person for whom Father Riley usually provided help.

14 As part of the assistance offered to him by Father Riley the offender was sent to East Timor to help with the care of orphans when he was aged 17. He was also funded to travel to the United States for treatment when he was on bail for stealing from a church. Unfortunately when he returned to Australia he absconded while on bail and the treatment programme was frustrated. He was eventually dealt with for that matter under s 32 of the Mental Health (Criminal Procedure) Act.

15 Father Riley described the offender as a role model when he was not abusing alcohol and remains keen to support and help him when he is eventually released from custody. He saw some insight by the offender into his problems especially after the killing of the deceased. Father Riley had never considered the offender as a violent person. I should note that when Father Riley was giving evidence the offender was in tears.

16 The offender gave evidence before me. At the time he was being held in the Acute Management Crisis Unit of the prison because of fears of self-harming behaviour. He has been on protection for the period that he has been in remand because of his difficulties interacting with the general prison population. As a result of his protection status he has been restricted in the period he has been allowed out of his cell. He is also limited in the courses in which he can participate. He has been in custody now for the longest continuous period he has ever served. He is hoping to attend the Violent Offender’s Therapeutic Programme when sentenced.

17 The offender gave evidence that he used to attend the deceased premises in order to consume alcohol. There is a statement from the offender’s mother indicating that she had met the deceased. She states that the offender had felt sorry for him and sometimes took him meals. The offender had on one occasion protected the deceased from an attack by others. Although the deceased had attempted an act of indecency toward the offender when he was aged 16, there was no repetition of the conduct until the night of the killing and the offender had believed that the deceased would not try to act indecently towards him again. He said that he felt sick when he contemplated what he had done. He was aware that alcohol was the source of his difficulties and he was committed to addressing his problem. He also wishes to get help to address his self-harming behaviour which he believes stems from thoughts of guilt.

18 The statement of the offender’s mother indicates that the offender has changed since being in custody on this occasion and he appears to have matured with more insight into his behaviour and its consequences.

19 The offence of manslaughter carries a maximum penalty of imprisonment for 25 years and that for the arson offence contrary to s 195(1)(b) of the Crimes Act a maximum penalty of imprisonment for ten years. There is no standard non-parole period applicable to either offence. Counsel for the offender, Mr Turnbull SC, accepted in oral submissions that I would impose partly cumulative sentences notwithstanding that the two offences arose in the course of the one episode of criminal conduct. He sensibly disavowed a contrary submission made in writing by a previous representative for the offender. The question for a court sentencing for two offences is whether the penalty for one offence can embrace the criminality of the other applying the principle of totality. In my opinion they are two separate acts of criminality although related and are sufficiently serious in themselves that they warrant partly cumulative sentences in order to reflect the total criminality of the offender.

20 It is unnecessary to undertake an extensive discussion of the principles involved in sentencing for manslaughter. The overriding consideration is that the offender’s conduct has unlawfully taken the life of another member of the community. This was an offence as a result of provocation but the provocative incident was not of an extremely gross nature nor had it proceeded over a lengthy period of time. It may be the case that the offender had a belief that he was safe from the deceased’s somewhat predatory conduct and stood in a different relationship with him than did other young men invited into the house. I also accept the psychiatrist’s opinion that a person with the personality traits of the offender would have found it more difficult to cope with the provocative conduct. However, the response to the provocative conduct was substantial violence by the use of a weapon and very greatly out of proportion to the provocative act. However, the nature of the response was largely due to the offender being under the influence of alcohol and his personality problems. Normally his violence is directed at himself. However, it does not follow that general or specific deterrence are irrelevant considerations.

21 There are clearly significant subjective factors applying here but their mitigatory effect must be tempered by the fact that the offender has had many chances to reform and was provided with the extraordinary generosity and concern of Father Riley resulting in the opportunity to find assistance from a practitioner in the United States. I accept that he is remorseful not only for the death of a person to whom he had shown kindness on occasions but also for again allowing alcohol to affect his behaviour.

22 There are two reports from a psychiatrist, Dr Carne. He found that the offender suffered from alcohol dependence and a personality disorder with dependent and borderline traits that evidenced itself in his attempts at self-harm. The offender told the psychiatrist that he had been receiving psychological and psychiatric assistance while in custody. Dr Carne described a treatment programme for the offender involving psychotherapy, counselling and medication. He recommended that on release the offender should enter into a residential programme for drug and alcohol rehabilitation. Such a programme, as that recommended by Dr Carne, is available in prison and I have been informed is in effect the regime that is in place at the current time.

23 The offender asked me to read two letters written by him since giving evidence. In the first he confirms his commitment to reform and to abstain from alcohol. The second indicates that he is spending his time in custody constructively by doing what courses he is able pending classification. There has to be some concern about the offender’s prospects of rehabilitation in light of the lack of previous success. However, if his act of killing another person does not make him reflect on the need for treatment and a commitment to rehabilitation, nothing will do so. The reality is that he will not be released at the end of the non-parole period unless he undertakes treatment while in custody and is committed to rehabilitation when on parole.

24 I have been taken to two sentences imposed for manslaughter by provocation. One of them was a decision of mine in R v Walsh [2004] NSWSC 111. The provocation in that case was arguably more serious than in this but there was the disposal of the body. However the offender had a serious health problem arising from heart disease. The sentence imposed before discount was 8½ years, which with the benefit of hindsight was a lenient one probably because of the offender’s poor health. In R v Marlow [2003] NSWSC 1130 Studdert J determined that the sentence before discount should be imprisonment for 11 years. That was only a slightly worst case than this but that offender had better antecedents.

25 The offender is entitled to a discount for the utilitarian benefit of his preparedness to plead guilty to the offence of manslaughter following his committal for trial, even though the Crown was initially not prepared to accept the proffered plea. Despite submissions to the contrary, the discount is not to take into account remorse nor was the plea given at the first reasonable opportunity. The appropriate discount is 17.5 per cent. There are special circumstances having regard to the offender’s age and psychiatric problems.

26 I have taken into account that he has served his period so far in more difficult conditions than the general prison population. With that in mind I am backdating the sentence to the period he first went into custody for this offence notwithstanding that he served a period of 3 months for another offence of a relatively minor nature. The sentence before discount for the manslaughter is 10 years and for the arson a fixed term of 2½ years. I have chosen a fixed term for the latter offence because of the sentence I am to impose for the manslaughter offence. There is to be a period of 9 months served before the manslaughter sentence commenced.

27 I intend that in total the offender must serve a period of 5 years and 3 months of a total sentence of 9 years. The non-parole period is the very least that in my view the offender must serve in custody in order to denounce the offence and by way of retribution for the taking of another human life. There is also an element of deterrence reflected in it. However, it is in my opinion a relatively lenient non-parole period aimed at inducing the offender to work towards release.

28 For the offence of arson the offender is sentenced to a term of imprisonment of 2 years. The sentence is to date from 16 November 2005 and expired on 15 November 2007. For the offence of manslaughter there will be a term of imprisonment for 8 years 3 months to date from 16 August 2006. The term is made up of a non-parole period of 4½ years to expire on 15 February 2011 the date upon which the offender is eligible to be released to parole. There is a balance of term of 3 years 9 months to date from 16 February 2011.

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LAST UPDATED:
18 April 2008