R v Beacham & Blenkinsop

[2005] QSC 319

[2005] QSC 319

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

FRYBERG J

Indictment No 37 of 2003
Case Nos 16 and 17 of 2003
SUP-00000224/03(1)

THE QUEEN

v.

DION FRANCIS BEACHAM and
AARON MICHAEL BLENKINSOP

CAIRNS

..DATE 04/11/2005

SENTENCE

HIS HONOUR:  Aaron Michael Blenkinsop, you have been convicted of one count of robbery in company with violence on your own plea of guilty. 

The circumstances of the offence were that with your co-accused, Beacham, you went to the premises of one Philpot.  Beacham had been purchasing cannabis from Philpot and believed that he was a paedophile.  He enlisted your assistance to go to the unit where Philpot lived and to assault and rob him.  You had met Beacham only on the day of the offence. 

You waited downstairs, in accordance with the plan while he went upstairs and subdued Philpot.  You then went upstairs with a bag and collected a considerable quantity of Philpot's property.  You also collected a stash of cannabis which Philpot had. 

While you were doing that, your co-accused dealt with Philpot in a way not immediately material now, but he was left lying on the ground in a semi-conscious or unconscious condition.  He was found next day in the same position, dead, due to asphyxiation. 

You were aged 22 at the time of the offence.  You have some criminal history.  In 2001 you were convicted of contravening a direction or requirement under the Police Powers and Responsibilities Act.  In 2003 you were convicted of entering or being on premises and committing an indictable offence, unlawful entry of a vehicle with intent to commit an indictable offence, obstructing a police officer and contravening a lawful direction or requirement.  You were also convicted of another count of contravening a direction or requirement.  On all of those offences you were fined.  They are relatively minor offences, but they are still matters which indicate the beginning of a criminal career. 

You were committed for trial in September 2002.  You notified the Crown of your willingness to plead guilty to the robbery count on 29 April 2003 when the indictment was presented, and that is in the circumstances of this case a reasonably early notification.  References have been furnished on your behalf from people for whom you have been working since your release on bail earlier this year. 

The Crown submitted that I should impose a head sentence of six years upon you.  I thought this a little light.  The need to signal to the community the seriousness of this offence and to deter others suggests a range of seven to eight years.  The problem is that you have already served over three years and I need to recognise your early plea of guilty and your age. 

I accept the submission made on your behalf that the time already served is sufficient time in actual custody, that time being 1,137 days.   My preferred course would be in this case to recommend that you immediately be admitted to post-prison community-based release.  That would have the advantage that you would have the assistance of a supervising officer, which is an appropriate thing at your age, but it would mean a return to prison in the meantime. 

I sought information by way of further submissions from the Crown as to how quickly post-prison community-based release or parole could be granted if someone made a special effort to expedite the application, but no further submission has made or information provided by the Crown.  I therefore will assume that a substantial period of time would elapse before post-prison community-based release could be granted.  That would, in this case, produce an unjust result.

The only course which I see open to me is to impose a sentence in which the head sentence is acknowledged to be too light.  For this reason, the head sentence which I impose upon you should not be seen as a precedent. 

You are sentenced to imprisonment for five years, that imprisonment to be suspended after you have served 1,137 days for an operational period of five years.  That means that you will be released immediately.  If within five years you commit a further offence punishable by imprisonment, you may be required to serve the balance of the five year term as well, of course, as being punished for that further offence. 

I declare that the period of 1,137 days which you have spent in custody from the 24th of October 2001 to the 18th of February 2003 and from the 25th of April 2003 to the 8th of March 2005, a total of 1,137 days, is imprisonment already served under the sentence. 

I direct that the records of the Court be noted with the fact that the declaration was made and its details, and the fact that the declared time was taken into account in imposing sentence.  I direct that the Chief Executive Officer, Corrective Services, be advised of the declaration and its detail. 

Is there anything further in relation to Mr Blenkinsop?

MR HENRY:  No, your Honour. 

MR McCREANOR:  No, your Honour.

HIS HONOUR:  You may leave the dock.

PRISONER BLENKINSOP:  Thank you, your Honour.

HIS HONOUR:  Dion Beacham, you have been convicted on your own plea of guilty of manslaughter, rape by an object, and robbery in company with violence.

The circumstances of the offence are these: you had for some time been purchasing cannabis from a man named David Philpot.  He was a known small-time drug trafficker.  You believed that he was also a paedophile, and you had developed a hatred of paedophiles. 

There is, it seems, no evidence whatsoever to suggest that there was any truth in your belief, which seems to have been a product of your own fevered imagination.  You also believed that he had supplied you with cannabis which had been sprayed with fly spray.  You enlisted the aid of Blenkinsop to go to the man Philpot's unit to assault and rob him.  You had met Blenkinsop only that day.

The offence took place on the 19th of October 2001.  In accordance with the plan made between you, you went up to the unit and spoke to Philpot.  You showed him cannabis, and complained that it smelt, when he bent his head down to smell it, you bashed him on the head, and then subsequently when he was lying on the ground, kicked him about the head and neck.

Blenkinsop came up and started to collect his property.  Meanwhile you stood on his arm and injected him with Temazepam.  You had obtained this by extracting it from Normison capsules in a hypodermic syringe, and I infer that you had done this before you went to the unit.

Philpot became unconscious.  You tied his hands and feet tightly together with his hands behind his back.  He had been wearing only a kaftan, or similar object, and had become undressed in the course of the struggle with you.  After you tied him up you pushed a plastic spider into his rectum.  You left him face-down on the floor where he was found some 15 or 16 hours later dead.

The cause of death was asphyxiation contributed to by the position of his head and body, and his unconsciousness being the cause of his inability to roll over or free himself.  That was primarily due to the kicks and blows to the head, although the possibility of it being caused by the Temazepam cannot be excluded as a rational possibility.  Whatever, he was unable to breath and he died.  I accept that this was not your intent.

A victim impact statement has been placed before the Court by Robert Philpot, the deceased man's brother.  It is apparent that it was prepared only shortly before it was handed to the Court.

It displays an unfortunate misunderstanding, in that Mr Robert Philpot evidently thinks that you are on trial or that you are being sentenced for murder.  It is to be regretted that officers of the Director of Public Prosecutions have not informed him, or explained to him adequately the effect of the decision of the Mental Health Court made in relation to you, and in particular in relation to your mental state.

That Court found earlier this year that you were suffering from a condition of diminished responsibility.  That meant that whatever your intent you could not be convicted of murder.  The sentence of the most serious offence for which you are being sentenced is manslaughter.

It is important, in my view, that officers of the Director of Public Prosecutions go out of their way to explain things like this to relatives, particularly when there are proceedings in the Mental Health Court which may be heard in Brisbane, and which persons outside Brisbane may not reasonably be able to attend.

You are now aged 36.  You were aged 32 at the time of the offences.  You have a substantial criminal history.  I will not attempt to recite the whole of it, but there are offences in both Queensland and New South Wales which include nine offences of break enter and steal, eight offences of stealing, three of escaping from lawful custody, and one of supplying a dangerous drug, and there are many other less serious offences.

On the last of the offences which I mentioned - the supplying the dangerous drug - you were sentenced in 1997 to a minimum term of two years in the Gosford District Court with an additional term of three years.

You have altogether been sentenced to six separate terms of imprisonment ranging from one month through to the period of imprisonment for the supply of prohibited drug to which I have just referred.  It is a very significant - although by far from being the worse - criminal history that I have ever seen.

You also have a substantial history of mental impairment and drug abuse.  I cannot do better than to quote from the judgment of the Mental Health Court which, in my view, accurately reflects the evidence before me:

"You were born on 30 January 1969.  You had a highly prejudicial and disruptive childhood, being neglected and abused.  You had attention deficit disorder and conduct disorder.  You were forced to leave school on more than one occasion.  You left home at a young age and lived on the streets.

From your early teens you used cannabis heavily.  You started to use speed at about the age of 17, and occasionally drank alcohol as a binge drinker.  You are the natural father of two children, aged about 11 and five, and stepfather to another, aged about 14.

You had an unstable relationship with the mother of the older two children for about 10 years until 1999.  It ended when she was murdered, probably as the result of a drug dispute.  You then formed another relationship, but it did not last.

In late 2000 you brought your two children to Queensland.  You were detained by police after allegedly hitting the children and twisting their ears.  You were taken to the Princess Alexandra Hospital and transferred to Saint Vincent's Hospital at Robina.  Next day you were discharged with a diagnosis of antisocial personality disorder.

On release you took the children to Brisbane.  Again you came to the attention of police and were admitted to Princess Alexandra Hospital from which you were transferred to Robina for a few days.  The hospital notes mention ideas of reference and auditory hallucinations, but the discharge summary indicates a conclusion that there was no mental disorder.

The children were taken into foster care, and you hitchhiked north to North Queensland, arriving shortly before Christmas 2000.  In February 2001 you were referred to the Cairns Integrated Mental Health program by the Department of Families.  You had reportedly been abusive and violent after discussing your children's foster care, and you claimed to be God.

You denied any use of speed, and said you had not used alcohol or marijuana for a fortnight.  You denied all psychotic symptoms.  You were considered to have a mild psychosis, possibly schizophrenic and possibly drug-induced.

A follow-up note on 22nd June 2001 indicated that you were much improved with no psychotic symptoms, but anxious about a pending Court case.  You declined anti-psychotic medication.  From about 1998 you had what Dr Beech described as an obsessional over-valued anxiety about your own safety, and that of the children.  You believed that you were under surveillance and were being poisoned, and that your children and stepchild had been sexually abused.

In 1999 of 2000 you concluded that it all made sense.  There was a paedophile racket.  You had cracked the paedophiles codes, and you were able to see them making various signals about you, and you had been placed under surveillance.  Through 2000 and 2001 your delusional system became more grandiose.

You believed that because of your knowledge you had been chosen by forces of good, that there were signs of advanced technology which indicated that Satan, God, or perhaps aliens were involved.  From June or July 2001 through to the events of 19 October 2001 you had a fully developed grandiose paranoid psychosis."

That is the end of the quotation from the judgment of the Mental Health Court.

You were examined by five psychiatrists for the purposes of

that proceeding.  The Court concluded in relation to their

evidence:

"Thus, the examiners all agreed that the defendant was

suffering from a psychotic illness at the time of the

alleged offences and that it was a schizophrenic illness.

They all agreed that his capacity to know that he ought

not do the acts was at least impaired (and I interpret

their views as substantially impaired) by that illness.

They disagreed on whether the defendant was deprived of

that capacity, and as I understood their evidence, they

all agreed that the illness alone caused substantial

impairment of that capacity, even if chronic intoxication

of cannabis contributed to the defendant's mental state

at the time."

Dr Fama thought your capacity to control your actions was also

impaired.

The question of major concern to me in sentencing you is your

prognosis and the future treatment which you may need.

Dr Kingswell expressed a view on that topic in June 2003.

He then thought that you had no acute treatment needs; that

you could have been usefully involved in drug and alcohol

rehabilitation in custody; that you had a combination of

problems which placed you at a greater risk of recidivism than

most.  He suggested a possible solution as being to ensure

that on the completion of a custodial order, you were subject

to what he called an enduring order for your involvement in

supervision of substance use disorder.  You could, he

instanced, submit to random urine drug screening indefinitely

to ensure compliance.  You would need surveillance by a Mental

Health Service officer to monitor any possible relapse of your

condition.

In September of the same year, Dr Kingswell expressed a

further view.  He said that if you were returned to custody,

regular review should continue and it should become clear that

you do not suffer paranoid schizophrenia and no treatment was

warranted.  Later, however, I am told Dr Kingswell recanted of

that opinion and joined the other doctors in the opinion that

you suffered from paranoid schizophrenia.

Dr Fama addressed the topic in November 2003.  He pointed out

that in relation to your future management, there would be

recommendations from the office of the Director of Mental

Health.  He wrote that he had written to Dr Van Der Hoef, the

visiting psychiatrist at the Arthur Gorrie Correctional

Centre, to acquaint her with your troubles and to ask whether

she would initiate local assessment and treatment.  There is

no evidence that any such recommendation has been made, nor

any evidence of your response to treatment from Dr Van Der

Hoef, assuming that it was given and received.

Dr Michael Beech expressed an opinion in December 2003.  He

wrote:

"Mr Beacham has only recently commenced treatment for his

psychosis.  From his description, his symptoms have been

present since 1998 and have continued in the two years of

detention on remand.  This disorder has therefore pursued

a chronic and most likely unremitting course, and it

appears to be well-entrenched.  I believe that he

requires significant and ongoing psychiatric management,

including antipsychotic medication.  If he is found of

unsound mind, I believe he should be transferred to a

secure mental health inpatient unit.  His lifestyle is

not consistent with community treatment.  If he is not

found of unsound mind, of concern is the possibility that

Mr Beacham could, at some stage, be released with an

ongoing psychotic disorder.  In my opinion, near the time

of his release he should be fully assessed to clarify the

nature of any persisting symptoms and to determine

appropriate ongoing management and follow-up.  If his

symptoms were to persist beyond his date of release, I

believe he would have the potential to be of significant

risk to others.  I believe, therefore, it would be in

order for a forensic order to be made to ensure that

Mr Beacham has ongoing treatment and supervision.

Depending on the nature of the symptoms, the treatment

could reasonably include involuntarily inpatient

treatment following his release."

Finally, Dr Woolridge expressed a view in November 2004.  He

wrote:

"If he is found to be of diminished responsibility and is

sentenced to a term of imprisonment, his mental state

should continue to be monitored for emerging psychotic

symptoms or signs, which would indicate that he does

indeed have an underlying paranoid schizophrenic illness.

He should also be afforded the opportunity of

participating in a drug and alcohol education program.

In the controlled drug-free environment of the prison he

may well, as he has done for most of the last three

years, remained relatively stable.  On release it would

be essential to impose conditions over the long-term

which would enable his drug abuse problem to be

controlled and his mental state monitored."

He does not state what would happen if those conditions were

not imposed but it is, I think, self-evident.

I turn to the overall criminality of your conduct.

On your behalf, your counsel submitted that I should not make

a finding that your plea of guilty to manslaughter is based on

diminished responsibility.  The implication was, I think, that

I should proceed on the basis that your conviction for

manslaughter is due to an absence of intent.  I have found

that you did not intend to kill or do grievous bodily harm to

your victim, however, it seems to me that this does not affect

the overall criminality of what occurred.  But for your

condition of diminished responsibility you would, in my view,

have been guilty of murder under section 302(1)(b) of the

Criminal Code.  The criminality involved would have been just

as great, if not greater, than the criminality involved in

murder under section 302(1)(a).  It therefore seems to me that

I must assess you on the basis that you are guilty of

manslaughter by reason of diminished responsibility and, but

for that, would have been guilty of murder.

The overall criminality of your combination of offences, the

planning involved in them, the predatory nature of your

behaviour in relation to a minor drug trafficker who, you

knew, would be helpless in the face of your superior strength,

weight and height, manifests, in my judgment, an appalling

display of thuggery and predatory behaviour.  If one were to

be sentencing you after a contested trial, and ignoring all

discounting factors to which I shall refer in a moment, the

range of sentence would, I think, be 15 to 18 years'

imprisonment.  That can be inferred from the case of Duong

[2002] QCA 151. However, in your case there are a

number of mitigating factors.

Before I come to them, I should point out that they do not

include the absence of a criminal history or youth.  You are

no longer young and your criminal history does not entitle you

to any form of discount.  You did, however, notify your

intention to plead guilty to these offences at an early stage.

For that you deserve a considerable reduction in your

sentence.

There is also the question of the weight to be given to the

fact that you have committed the offences while in a state of

mental disability.  The approach which should be taken in such

circumstances was dealt with by the Court of Appeal recently

in The Queen v.Neumann, ex parte Attorney-General [2005] QCA

362.

Taking into account your early plea and the reduced mental

responsibility which you have for your offence would suggest,

if there were nothing else, a sentence of about 11 years.

However, mental disability is a two-edged sword, as was

observed by Mr Justice Brennan sitting in the Federal Court on

appeal from the Supreme Court in the Northern Territory.  His

Honour said:

"Psychiatric abnormality falling short of insanity is

frequently found to be a cause of or a factor

contributing to criminal conduct.  The sentencing of an

offender in cases of that kind is inevitably difficult.

The difficulty arises in part because the factors which

affect the sentence give differing significance to an

offender's psychiatric abnormality.

An abnormality may reduce the moral culpability of the

offender and deliberation which attended his criminal

conduct, yet it may mark him as a more attractive subject

for reform than one who is not so affected, or even as

one who is so likely to offend again that he should be

removed from society for a lengthy or an indeterminate

period.  The abnormality may seem, on one view, to lead

toward a lenient sentence and, on the other, to a

sentence which is severe."

In the present case, section 9 (4) of the Penalties and

Sentences Act requires that in sentencing you, I must have

regard primarily to a number of factors, the first two of

which are the risk of physical harm to any members of the

community if a custodial sentence were not imposed, and the

need to protect any members of the community from that risk.

That is the second edge of the sword to which Justice Brennan

referred.  There is, in my judgment, no doubt that you

constitute a very considerable threat to the community.  I

reject your counsel's submission that there is no positive

evidence of future danger.

The problem in sentencing you is that nothing has happened to

alleviate that threat.  In contrast to Neumann, no involuntary

detention order has been made in relation to you.  As your

counsel pointed out there is a mechanism in existence under

the Mental Health Act, but it seems to me that, by itself, is

not enough to enable me to be satisfied that I have performed

the duty which the law casts upon me in sentencing you.  It is

not my position to defer the task or to hand it on to some

other authority.  I am obliged to take the protection of the

community into account, and I must do so on the basis of the

threat as it now stands and the evidence as it now is.

You did not give evidence before me and there is no evidence

that you were willing to undertake any of the courses referred

to in the medical reports while you were in gaol.  Early

optimism based upon your apparently doing well in a drug-free

environment was misplaced.  You have had relapses.  You have

been on and off medication in gaol, apparently at your own

demand, and that may or may not be connected with those

relapses.

The requirements that were referred to by the medical

practitioners, and in particular by Dr Beech, have not been

demonstrated to be satisfied.  Time is needed for a firm

determination of your status and for your habituation into a

socially acceptable mode of behaviour.  I am satisfied that

the two-edged sword must be wielded in this case.  The

alleviation of the sentence by reason of diminished

responsibility is partially offset by the need to protect the

community.

I sentence you, in relation to Count 1, to imprisonment for 13

years.  I declare that you have been convicted of a serious

violent offence.

In relation to Count 2, I sentence you to imprisonment for six

years.  That sentence is constructed on the assumption that I

do not take into account the sentence imposed in relation to

Count 1.

On Count 3, I sentence you to imprisonment for six years and

declare that you have been convicted of a serious violent

offence.  Again in relation to that count, I proceed on the

basis that I ignore the imprisonment imposed on Count 1.  It

seems to me appropriate in doing that, to sentence you to a

term at the lower end of the range for robbery in company with

violence and to impose the declaration of a serious violent

offence in accordance with the decision of the Court of

Appeal in The Queen v. Bojovic [2000] 2 Qd R 183.

I declare that the period of 316 days from the 24th of October

2001 to the 4th of September 2002 and the period of 1,135 days

from the 24th September 2002 until the 4 November 2005 to

today, a total of 1,451 days is time already served under this

sentence.

I direct that the records of the Court be noted with the fact

that the declaration was made and its details, and the fact

that the declared time was taken into account in imposing

sentence, and that the Chief Executive Officer, Corrective

Services, be advised of the declaration and its details.

-----