R v Beattie

[2025] NSWDC 131

District Court

New South Wales

Medium Neutral Citation:

R v BEATTIE [2025] NSWDC 131

Hearing dates:

16 April 2025

Date of orders:

16 April 2025

Decision date:

16 April 2025

Jurisdiction:

Criminal

Before:

Everson SC DCJ

Decision:

1. I impose an aggregate sentence of imprisonment of 7 years that is backdated to commence on 27 June 2022 and expire on 26 June 2029.

2. I fix a non-parole period of 3 years and 6 months. No lesser sentence would reflect the seriousness of the offending. Eligibility for release to parole arises on 26 December 2025

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

Bugmy v The Queen [2013] 249 CLR 571

Dent v R [2025] NSWCCA 43

DPP(Cth) v De La Rosa (2010) 79 NSWLR 1

Fisher v R [2021] NSWCCA 92

R v Saleib [2005] NSWCCA 85

Weininger v The Queen (2003) 212 CLR 629

Category:

Sentence

Parties:

Rex
Thomas Beattie

Representation:

Crown: Ms C Hurford, instructed by the Solicitor for Public Prosecutions (NSW)

Accused: Ms T Hennessy, instructed by Legal Aid Commission, NSW

File Number(s):

2022/00184103

JUDGMENT

Introduction

1. The offender BEATTIE is before the court to be sentenced for five principal offences, each contrary to a provision of the Crimes Act 1900 (NSW), with three additional offences to be taken into account when sentencing him for two of those principal offences, as follows:

1. Wounding Brendan Cook with intent to cause grievous bodily harm on 21 June 2022 at Cambridge Park, as pleaded in Count 2 of the indictment presented on 2 December 2024. The maximum penalty for this offence imprisonment for 25 years and a standard non-parole period of 7 years is prescribed.

2. The aggravated assault of Daniel BUSS with intent to unlawfully take a motor vehicle on 26 June 2022 at Doyalson, as pleaded in charge sequence 5 of Court Attendance Notice ("CAN") H89192146. For that offence the maximum penalty is imprisonment for 14 years and a standard non-parole period of 5 years is prescribed.

3. An additional offence of stealing property, as pleaded in charge sequence 1 of the same CAN, is to be taken into account when sentencing the offender for this principal offence charged in sequence 5. The maximum penalty for stealing is imprisonment for 5 years.

4. Assault occasioning actual bodily harm to Muhammad TALLAT on 27 June 2022 at Lisarow, as pleaded in charge sequence 3 of CAN H1117311690. The maximum penalty for this aggravated assault offence is imprisonment for 5 years.

5. Demanding property from Muhammad TALLAT with menaces on 27 June 2022 at Lisarow, as pleaded in charge sequence 6 of CAN H1117311690.

6. Two additional offences, namely stealing property and intentionally damaging property, as respectively pleaded in charge sequences 5 and 7 of the same CAN, are to be taken into account when sentencing the offender for the demanding property with menaces, charged in sequence 6. The maximum penalty for both stealing and criminal damage is imprisonment for 5 years.

7. The related offence of taking and driving a Toyota van without the consent of its owner, 27 June 2022 at Lisarow, as pleaded in charge sequence 4 of the same CAN. The maximum penalty for this related offence, that is before this Court on a s166 certificate, is imprisonment for 5 years although the Local Court's jurisdictional limit of 2 years is applicable given the nature of the section 166 procedure.

2. The offender committed all the above offences across a span of about one week in June 2022, from 21 June 2022 to 27 June 2022. That is the day he was arrested by police in relation to all the matters. The subsequent delay in sentencing the offender is explicable.

3. On 24 March 2023, the offender BEATTIE was committed for trial on each the June 2022 offences. Thereafter his fitness to stand trial was raised and accordingly the matters were listed for a fitness hearing on 8 September 2023. On 1 September 2023 the fitness hearing was vacated as the lawyers for Mr BEATTIE advised he was now fit, and the matters were remitted to the Local Court.

4. On 17 November 2023, Mr BEATTIE was committed for trial on the offences of 21 June 2022 and following pleas of guilty, he was committed for sentence on the offences of 26 and 27 June 2022.

5. On 2 December 2024, Mr BEATTIE was presented for trial on an indictment pleading three alleged offences concerning the incident of 21 June 2022. The 1st count charged him with wounding Brendan Cook with intent to murder at Cambridge Park on 21 June 2022. The 2nd count was pleaded in the alternative to the 1st count, and it charged Mr BEATTIE with wounding Brendan Cook with intent to cause grievous bodily harm. The 3rd count was pleaded in the alternative to the 2nd count, and it charged Mr BEATTIE with wounding Brendan Cook whilst being reckless as to causing actual bodily harm, contrary to sub-section 35(4) of the Crimes Act.

6. Upon arraignment, Mr BEATTIE pleaded not guilty to the 1st and 2nd counts. He pleaded guilty to the 3rd count. The Crown declined to accept that plea of guilty in discharge of the indictment. The trial on the 1st and 2nd counts proceeded without a jury. On 5 December 2024, Mr BEATTIE was found not guilty of the 1st count but guilty of the 2nd count.

The Offending

7. This Court is obliged to find the facts concerning the respective offences.

Wounding with intent to cause grievous bodily harm on 21 June 2022 (Count 2 on indictment)

8. Consistent with this Court's judgment on verdict (R v Thomas BEATTIE [2024] NSWDC 651), I find the following facts have been established.

9. Sometime after 5pm on 21 June 2022, Brendan Cook was driving north on Richmond Road towards his home in Londonderry. At the intersection of Dunheved Road in Cambridge Park, he stopped his car behind a red car. In the lane to the passenger side of that red car was a maroon-coloured Toyota Camry sedan. It was being driven by the offender - Thomas BEATTIE.

10. This is not a case in which the incident giving rise to the charge or charges was captured by camera such that the incident can be viewed and reviewed by the tribunal of fact, so as to better understand who did what, when and how. The reliance on mere witness testimony limits the conclusions that can be made as to the direct evidence and the justifiable inferences that can be made from that direct evidence.

11. The traffic lights on Richmond Road turned to green. There was a delay in the red car driving forward. Mr Cook may or may not have beeped his horn. He may or may not have said something to the offender BEATTIE. Whether or not he did, is not determinative of the state of mind of the offender. The red car was driven off by the offender and Mr Cook followed in his car. The offender drove his car in a manner that caught the attention of other motorists. Within 800 metres, the offender had positioned his car in front of the car driven by Mr Cook and before the lights at the intersection of Richmond Road and Andrews Road he applied the car's brakes and came to a stop. So too did Mr Cook. Neither man knew the other.

12. The offender BEATTIE exited from his car armed with a knife and approached the car driven by Mr Cook. Mr Cook exited his car. Whether he did so by being dragged out his car by the offender or did so by himself, is also not determinative of the state of mind of the offender. The same consideration applies to the issue of whether or how the offender made contact with the windows of Mr Cook's car, before Mr Cook exited the vehicle. In any event, there was a physical interaction between the offender and Mr COOK during which the offender stabbed Mr Cook six times.

13. I accept as a reasonable possibility that the first blow thrown by the offender towards Mr Cook was the clenched-fist left hook punch as stated and demonstrated by the offender in his evidence at trial. That punch likely caused Mr Cook to fall head first into the abdomen of the offender. Thereafter, the offender held Mr Cook by his shoulder and continued to strike and stab the victim COOK. The knife used by Mr BEATTIE penetrated the clothing worn by Mr Cook and each of those stab wounds breached the dermis and epidermis. Although there is no direct evidence of the depth of any of those wounds, it is apparent that Mr Cook sustained a right-sided pneumothorax as a result of being stabbed. The length and location of the wounds were:

• One, a 2 cm laceration to the right side of the front of the neck;

• Two, a 9 cm laceration of the right rear base of the neck;

• Three, a 3 cm laceration of the right rear shoulder bone;

• Four, a 2 cm laceration of the back of the head;

• Five, a 5 cm laceration of the left middle side of the base of the neck; and

• Sixthly, a 1 cm semi-circular shaped laceration of the back of the head.

14. The impact of the offence on its victim Brendan Cook extends beyond those physical injuries and their ongoing physical effects. According to his victim impact statement, Mr Cook has suffered from continuing mental ill-health in the nature of panic attacks, flashbacks, insomnia from nightmares, a feeling of being overwhelmed, a degree of social withdrawal, difficulties with concentration at work and difficulties with driving. The offence has also had a significant impact on his family as well as a financial impact related to a reduced capacity to work, time off work and travel costs for medical appointments. He continues to regularly undergo a variety of therapies to aid in his recovery journey. He continues to avoid leaving work, is hypervigilant and no longer able to tolerate being touched to the head or shoulder area by his wife. That in turn has had an impact on impact on their inter-personal intimacy.

Aggravated assault with intent to unlawfully take a motor vehicle on 26 June 2022 at Doyalson (charge sequence 5) and the additional offence of stealing property (charge sequence 1).

15. Four days after stabbing Brendan COOK at Cambridge Park, the offender walked into the Metro Service Station on the corner of Scenic Drive and Pacific Highway in Doyalson. At about 5.30pm on that Sunday, 26 June 2022 and whilst the offender was in the Metro Service Station shop, 25-year-old Daniel BUSS parked his orange Ford ute near one of the Service Station's petrol bowsers. Whilst he was inside the service station shop, the offender took a packet of biltong and a packet of corn chips to the combined value of about $15.

16. After filling his car with petrol, Mr Buss walked towards the shop area to pay. When he was close to the entrance door the offender walked out, without paying for the aforesaid biltong and corn chips and approached Mr BUSS. In so doing, the offender committed the stealing offence that is sequence 1.

17. Whilst the location of the biltong and corn chips is not revealed in the facts on sentence, a knife was in the right hand of the offender who pointed it at Mr Buss and aggressively yelled: "Give me your fucken keys cunt, I'm telling ya. Give me your fucken keys now bro. Give me your fucken car. Wanna get stabbed cunt?"

18. The threatening words and actions of the offender caused Mr BUSS to apprehend immediate and unlawful violence. Consequently, he complied by handing his car keys to the offender who continued to yell at Mr Buss asking him what the car needed to start. The offender called Mr Buss a "dumb fucken dumb cunt" and thrust the knife towards the victim's neck, "brushing'' the skin without piercing the skin but nevertheless causing Mr BUSS to fear his neck would be cut.

19. Mr Buss said to an unknown male who had approached the Metro Service Station shop, "He just robbed me of my car." The offender yelled "Don't" and got in the driver's seat of Mr BUSS's car and drove out onto Scenic Drive, and out of sight.

20. The following day, on 27 June 2022, the Ford Ute was located by police in an empty field with its rear lid open and driver's side window down. It was apparently bogged and had sustained significant damage.

21. Mr Buss has also suffered damage that is ongoing. According to his victim impact statement, Mr Buss experiences difficulties with sleeping, nightmares, financial difficulties as a result of the damage and items which were stolen from his vehicle, his inability to cope and emotional struggles, his ongoing medical and counselling support and his initial inability and subsequent struggles to leave the house after the offence which resulted in the breakdown of his relationship.

Demanding property with menaces (charge sequence 6 of CAN H…1690 with the additional offences of stealing property (charge sequence 5) and damaging property (charge sequence 7) on a Form 1

22. At about 2am on 27 June 2022, the offender arrived on foot at the 7-Eleven petrol station on the Pacific Highway at Lisarow. As is apparent from the foregoing, this was 8 ½ hours after he committed the personal and property offences at Doyalson.

23. Twenty-year-old store assistant Muhammed Tallat, was working inside the store. The offender pressed the doorbell at the front. Mr Tallat unlocked the door thereby allowing the offender entry. Mr Tallat remained behind a glass screened counter area with its door locked.

24. The offender removed a beanie from a display stand and a drink from a fridge. He handed the two items to Mr Tallat through an opening at the counter. As Mr Tallat was ringing up the items, the offender searched his pockets and said, "I don't have any money, I forgot my card". Mr Tallat told the offender he had to pay for the items or put them back. Consequently, Mr Tallat kept the items, and the offender walked off towards the coffee maker. The offender said he wanted to make a coffee but was told by Mr Tallat to pay the $1 for the coffee and then he could make it.

25. The offender returned to the counter area briefly then walked towards the ATM machine and stood there for about 1 minute. He then returned to the counter and forcefully pushed a piece of equipment on the counter towards Mr Tallat who backed away and grabbed his phone. The offender said in an aggressive manner, "Give me your ATM card, give me your money and give me your car keys". The words and actions of the offender caused Mr Tallat to fear for his safety.

26. The offender walked to the nearby sandwich section and removed a package containing a sandwich. He then threw it at the opening in the glassed counter area. Mr Tallat raised his arm to stop the sandwich from hitting him.

27. Following the sandwich throwing, Mr Tallat pressed the emergency button under the counter. At this point, the offender walked around the store and took an Oaks Milk from the fridge display and walked back towards the counter, opened and drank it without paying.

28. Mr Tallat backed away into the corner of the counter area. The offender tossed the empty Oaks milk container in the aisle and walked around the store, taking a number of items from different shelves. He approached the front exit door, but the automatic doors wouldn't open.

29. The offender returned to the counter. TALLAT backed away toward the emergency room door. The offender kicked the locked glass door to the counter area open and started to enter as Mr Tallat quickly closed and locked the door to the emergency room behind him. Mr Tallat watched the CCTV display in the emergency room.

30. The offender then left the counter area and proceeded towards the entry doors which were closed. He returned a second time and again searched the counter area including, a cabinet, under the counters and around the till. Whilst this was occurring, Mr Tallat called the triple zero emergency number.

31. The offender left the counter area and walked towards the rear of 7-Eleven where there was another door to the back area. He kicked the door open and entered the emergency room area. At this point, Mr Tallat was very scared.

32. The offender approached Mr Tallat, grabbed him and punched him to his head and face area. Mr Tallat lifted his left arm to protect himself, but the offender punched him three or four times in the head and face.

33. During the assault, a knife blade landed on the floor. Mr Tallat successfully pushed the offender away, unlocked the door to the counter area and ran through it toward the front entry doors. The offender chased after him.

Assault occasioning actual bodily harm (charge sequence 3 of CAN H…1690)

34. Mr Tallat pressed the emergency exit button, which he was holding in his hand which controlled the front door entry, but the offender grabbed him and punched him on the left side of his face and lip area multiple times with closed fists. This caused Mr Tallat to feel immediate pain to the left side of his face.

35. Mr Tallat pressed the emergency exit button again and when the door opened, he ran out of the store. The offender picked up his shoe that had come off and left the store to follow the victim. Mr Tallat ran towards Narara Train Station, and the offender ran after him. Mr Tallat rang his manager to tell him what had happened. As a Police car was driving towards the 7-Eleven store the offender changed direction and ran away whilst Mr Tallat returned to the store and spoke with the Police.

36. Inside the back 'emergency' room, in the area where the offender grabbed Mr TALLAT and punched him, the police located a 'block knife blade' which had been there before the offender entered the store. The attending police noted that security door behind the counter, and the rear emergency room door were both damaged, and there was blood on the floor near the store entry door. That blood was from Mr TALLAT who had sustained a split lip to the left side of his mouth (both on the outside and on the inside) that was treated attending ambulance officers.

Take and Drive Conveyance (related offence, charge seq 4, s166 certificate)

37. Five or so hours later and about 800 metres from the 7 Eleven store at Lisarow, Mr Joseph TRAN parked his work vehicle, a white Toyota Hiace van with attached trailer, close to the job site at which he was working. He left the vehicle's doors open and its keys in the van. At about 9.50am, another worker on the site yelled out, "Oi". That prompted to look and see the offender BEATTIE enter the driver's door and sit on the driver's seat before driving off in Mr TRAN's now stolen van.

38. Mr Tran pursuing the van on foot. The offender briefly stopped and got out of the van to close one of its doors. After returning to the vehicle he drove it away and turned right onto Pemberton Boulevarde, where Mr TRAN lost sight of the his van & trailer. Mr Tran then called police and reported the incident.

39. Later that morning, the offender drove the van and trailer stolen from Mr TRAN on Cottesloe Avenue, Lisarow. In full view of some residents, he stopped, got out of the driver's seat and walked to the rear of the vehicle. He armed himself with a sledgehammer and proceeded to strike the trailer in an attempt to disconnect it from the van. That attempt proved unsuccessful so the offender abandoned the van and trailer. With the van's doors left open the offender walked away. Ten minutes later Police arrived and at about 10.30am that same day, the offender was arrested in Pemberton Boulevard, about a 3-minute walk from where he had abandoned the van and trailer stolen from Mr TRAN.

The Offender

40. The mother of the offender has furnished a letter to the Court outlining key aspects of the offender's childhood. In that letter she recounts how she and the offender's father were 17 years old when the offender was born. The offender has two brothers. The distressing details shared by the offender's mother establish that as a child the offender was the victim of and witness to significant incidents of personal violence in the home.

41. The offender started consuming cannabis at about the age of 13 years. When he was about 14 years old his father recruited the offender to assist him in injecting crystal methylamphetamine and also introduced the offender to the same illicit drug. After the offender's mother left her husband with her children they lived in various refuges before she secured public housing accommodation. Unsurprisingly, schooling was hard for the offender, who his mother recounts was "suspended a lot" and "bullied in school".

40. This picture of a profoundly deprived childhood is further established in the material set out by the forensic psychiatrist Dr Richard Furst in his report of 7 March 2025.

41. The offender left high school at the beginning of year 9 and then attended an educational facility for emotionally and behaviourally disturbed children for a month. When he was 13 or 14 years old the offender was placed into a juvenile detention centre.

42. The offender claims he was sexually abused by an adult male when he was 14 years old. A psychological assessment report from 2018 states that the offender presented with a lengthy history of depression, anxiety, difficulty in relaxing and hypervigilance with the suggestion of a diagnosis of schizophrenic illness that required a further psychiatric assessment. That has now been done. Based on his review of Justice Health records as well as other psychological and psychiatric assessment reports, Dr Furst opines that the offender meets the criteria for the following mental health disorders: schizophrenia; anti-social personality disorder; alcohol use disorder; and opiate substance abuse disorder and attention deficit disorder.

43. Dr Furst elaborated:

"Mr Beattie is a challenging individual because of his antisocial tendencies, tendency towards avoidance and disengagement. He lacks insight into his mental health problems and his treatment needs. He is impulsive and is prone to emotional dysregulation and aggression. The available history from the accused, combined with his Justice Health medical records and the earlier psychological report of Ms Headington indicate there was an onset of mental illness in his teenage years with recurrent and persistent hallucinations, leading to admissions to Cumberland Hospital in his teenage years and treatment with antipsychotic medication, namely Risperidone. His Justice Health file is indicative recurrent paranoid thinking, periods of irrational aggressive behaviour and hallucinations, with persistent episodes of aggression evident in custody on occasions over the last 2-3 years that led to him being segregated for over 12 months and placement in protection. Similar symptoms were reported by Ms Headington nearly 5 years ago."

46. The Sentencing Assessment Report dated 28 March 2025, sheds further light on the offender and conveniently summarises other material tendered on the sentencing hearing. The offender has an extensive history of criminal offending, including for offences of personal violence, affray, aggravated robbery and damaging property. The offender is no stranger to the NSW prison system. I note that he was first imprisoned on 30 March 2012 and paroled on 29 January 2013. The offender's parole was revoked with effect from 21 October 2014, and he served the balance of the unexpired head sentence until 2 April 2015. The offender was next admitted to custody on 5 October 2017 and subsequently released to parole on 3 August 2020.

47. He has been continuously in gaol since his arrest for the present offences on 27 June 2022. During that time, he has been punished for breaches of prison discipline on 11 occasions for mainly drug and violence offences.

48. The Sentencing Assessment Report records the offender's expressed attitudes to the offences for which he is to be sentenced. Of the time he wounded Mr Cook on 21 June 2022, the offender stated that he was grieving the loss of his grandmother and his relationship breakdown with his ex-partner. He added that his memory of the event was impaired as he was drinking heavily at the time of the offence. As for the other offences he mainly agreed with the Police Statement of Facts. To the extent that he does not, I will proceed as counsel for the offender puts it in her written submissions, that it is a matter of context, given that the offender has accepted he has an impaired memory of the incidents, due to the influence of the methylamphetamine and/or alcohol he had consumed.

49. Significantly, the offender admits that during the time of the offences he was not taking his medication for schizophrenia, instead choosing to self-medicate with alcohol and methylamphetamine. The offender admitted his extensive history of violent offending and acknowledged that when he is under the influence of alcohol, he has a propensity to act violently and lose control of his emotions. The offender expressed some insight into the impact of his offending. According to the Sentencing Assessment Report author, the offender stated that his victims would be significantly impacted by his actions, scarred for life, and require therapy. The offender said that he was embarrassed by his actions.

50. The offender has a limited work history in varying industries. He is not currently employed in custody. As for the future, it is anticipated that he will be in receipt of social security benefit payments. The offender is currently receiving pharmacology treatment on the buprenorphine program and has indicated a willingness to address his substance use when eventually released into the community. Upon release it is reasonable to expect that the documented and apparently pro-social support of relatives and a former partner will continue. The offender's desire to reconnect with his three children is also a positive factor.

51. Nevertheless, as identified by Dr Furst, the offender poses an increased risk of aggression and violence that is associated with his history of poorly controlled schizophrenia with features of drug addiction and an anti-social personality disorder. Unsurprisingly, the offender was assessed at a high risk of reoffending by the actuarial tool known as the Level of Service Inventory used by the NSW Department of Corrective Services since 2002 and subsequently revised to identify an offender's risk of recidivism.

Objective Seriousness and Moral Culpability

52. It is common ground that section 21A of the Crimes (Sentencing Procedure) Act 1999 demands that in determining the appropriate sentence for an offence, the court is to take into account various aggravating and mitigating factors, that are relevant and known to the court, as well as any other objective or subjective factor that affects the relative seriousness of the offence. I am mindful that the aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 must be proved beyond reasonable doubt, and the mitigating factors on the balance of probabilities.

53. The objective seriousness of an offence and the moral culpability of the offender are separate but related concepts. The former involves an objective assessment of the seriousness of the crime and some matters causally related to it. The latter is concerned with an offender's moral blameworthiness for an offence.

54. The offences for which the offender BEATTIE is to be sentenced carry differing maximum penalties and for two them there is a prescribed standard non-parole period. In each case the maximum penalty, and where applicable the standard non-parole period, is a legislative guidepost to be taken into account, as part of the instinctive synthesis that characterises the sentencing process.

55. The standard non-parole period represents the non-parole period for an offence in the middle of the range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence: sub-section 54A(2), Crimes (Sentencing Procedure) Act. I also am mindful that the standard non-parole period is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.

56. While it may be rare for a wounding offence, such as that in count 2 on the indictment, to not involve the use of a weapon, the use of a weapon is not an essential element of that offence. As in the present case, the use of a weapon in the form of a potentially lethal knife in the commission of an offence contrary to section 33, will be taken into account as an aggravating factor.

57. This wounding offence charged in count 2 on the indictment is also aggravated by reason that it was committed without regard for public safety: Dent v R [2025] NSWCCA 43 at [4] per Basten AJA citing R v Saleib [2005] NSWCCA 85 at [55].

58. Any planning was limited and although present, does not justify increasing or decreasing the sentence for the offence. I have reached the same conclusion in the case of each of the other principal offences as well.

59. The aggravated assault of Daniel BUSS with intent to unlawfully take a motor vehicle on 26 June 2022 at Doyalson, as charged in sequence 5 involved the use of an offensive weapon in the form of a knife. However, the use of that knife is an element of the offence and therefore does not aggravate the objective seriousness of the offence. The offence was committed in a public place where people brought their motor vehicles for refuelling and the offender committed this offence without regard for public safety.

60. The Crown relies on the content of the victim impact statements of Brendan Cook and Daniel Buss to support the submission that in each case the impact of the offences committed upon them by the offender, is over and above the type of harm which might typically be expected for the respective offences in which they were the victim. If established beyond reasonable doubt, that is a statutory aggravating factor: sub-section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. Conversely, if it is established on the balance of probabilities that the injury, emotional harm, loss or damage caused by the offence was not substantial, that is a statutory mitigating factor: sub-section 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999.

61. Not all disputed issues of fact relevant to an exercise of the sentencing discretion must (or can) be resolved for or against the offender: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at 636 [19]. It is erroneous to present every question for a sentencer as a choice between the extremes of aggravation and mitigation: Weininger v The Queen at [22]. Having regard to the fact that the evidence of harm to the victims COOK and BUSS is limited to their respective victim impact statements, I am not satisfied that substantial harm, beyond that which might typically be expected for the respective offences in which they were the victim, has been proved beyond reasonable doubt. Equally, I am not satisfied on the balance of probabilities that the inflicted and consequential harm was not substantial.

62. The assault occasioning actual bodily harm to Muhammad TALLAT, as charged in sequence 3, consisted of multiple blows, however a single blow may have caused the actual bodily harm.

63. That offence and the associated offence of demanding property with menaces from the same victim, as charged in sequence 6, is aggravated because the victim was vulnerable by reason of his isolated employment as a service station attendant.

64. The unlawful taking and driving of the Toyota van in the possession of Joseph TRAN, as charged in sequence 4 is without aggravating or mitigating objective factors.

65. Each of the additional offences on a Form 1 have not been taken into account so as to elevate the objective seriousness of the relevant principal offence. To a small degree, each of the Form 1 offence does however demonstrate a greater need for personal deterrence and retribution for the principal offence.

66. The profound childhood deprivation and mental ill-health of the offender are considerations relevant to the assessment of the offender's moral culpability. I note the need to avoid double counting these mitigatory considerations. I have concluded that the moral culpability of the offender BEATTIE is reduced.

67. At page 14 of his report, Dr Furst wrote, "The fact that both of his parents had problems with drug abuse/addiction and/or alcohol abuse and normalised drug us as a way of coping suggests the principles of mitigation elucidated by the High Court in Bugmy also apply to the is offender". That contention, embraced by counsel for the offender in her submissions, needs to be unpacked before it is applied.

68. In Bugmy v The Queen [2013] 249 CLR 571, the High Court considered the relevance of an offender's deprived background to offending as an adult and observed in paragraph 44 on page 579 that because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing decision. However, this does not mean that Bugmy factors must be given the same weight in every case. The purposes of sentencing are numerous and often difficult to apply when the objective and subjective factors point in different directions. The extent to which an offender's moral culpability is reduced will vary in each case.

69. The application of Bugmy principles in the context of unpremeditated crimes of violence - as occurred in the case of Bugmy and the associated case of Munda v Western Australia (2013) 249 CLR 600, which arise out of prolonged and widespread social disadvantage, is fairly straight forward. The present case does not feature such spontaneous offending. Nevertheless, I accept that the offences committed by Thomas BEATTIE should be regarded as flowing, to a degree, from dysfunctional tendencies, subconsciously absorbed from experience within the offender's family, school and or social environment, in his childhood.

70. It is well-settled that where the state of a person's mental health contributes to the commission of a criminal offence in a material way, the offender's moral culpability may be reduced with a reduction in the sentence that would be otherwise appropriate: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

71. Similarly, mental ill-health may make an offender an inappropriate vehicle for general deterrence whilst also making a custodial sentence may weigh more heavily on the offender. In that event, the sentence will be more onerous for that offender and the length of the prison term may be reduced.

72. However, it may be that because of an offender's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Indeed where, as in the present case, an offender has been diagnosed with an antisocial personality disorder, there may be a particular need to give consideration to the protection of the public.

73. The present offender's candid acknowledgment that he was significantly impacted by methylamphetamine and alcohol at the time he committed these offences for which he is to be sentenced and that he was not thinking of the consequences of his actions is a consideration that whilst important, does not carry any mitigatory consequences. Since the January 2014 introduction of section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999, an offender's intoxication cannot sound in mitigation of penalty. Section 21A(5AA) states that in, "determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor".

74. Subsequent judicial consideration of s21A(5AA) has confirmed that the self-induced intoxication of an offender is not a mitigating factor. For example, in Fisher v R [2021] NSWCCA 92, Adamson JA (with whom Fullerton J agreed) held (at [225]) that section 21A(5AA), prevents a sentencing court, from taking into account self-induced intoxication to explain an offender's conduct, where such explanation reduces the offender's moral culpability and/or the objective seriousness of the offending.

75. The offender's record of previous convictions does not play a role in determining the gravity of the offence and it will not be used to increase the sentence beyond what is an otherwise appropriate sentence. His prior convictions are pertinent as to where, within the boundaries set by the objective circumstances, a sentence should lie when considering the weight to be given to retribution, personal deterrence and the protection of society.

76. Apart from the offence that went to trial, the offender is entitled to a discount of 25% for the utilitarian value of his plea of guilty.

77. He has shown a measure of remorse, yet his record of recidivism and misconduct in gaol means his prospects of rehabilitation are assessed as low.

Consideration and Conclusions

78. I have considered the Crown's submissions on sentence, as well as those of the offender. The offender accepts a sentence of full-time imprisonment is inevitable. The key planks of his plea in mitigation are his profoundly deprived childhood and his undoubted mental illness. Whilst not disputing the offender has discharged his evidentiary onus in both matters, the Crown submits the mitigatory impact of both should be subdued.

79. All of the purposes of sentencing are engaged in this case. These are articulated in s 3A Crimes (Sentencing Procedure) Act. The protection of the community is an especially important consideration, that is not without complexity given that the rehabilitation of the offender is key to diverting him from reoffending.

80. Notwithstanding the significant subjective matters that mitigate the moral culpability of the offender, it remains that each of his offences demand a punitive response that appropriately denounces his offending, protects the community and meets the need for personal deterrence.

81. In the circumstances of this case, having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate for each of the principal offences. I will impose an aggregate sentence of imprisonment. In so doing the sentencing principle of totality, including an implicit assessment of notional accumulation and concurrency in the aggregation of the indicative sentences, will be given full weight in this case.

82. I find that the offender's continuing need for rehabilitation and his need for an extended period of supervision upon his ultimate release on parole constitute special circumstances justifying a reduction in both the statutory ratio between the head sentence and non-parole period and where applicable, the standard non-parole period. For those offences to which the offender pleaded guilty, the statutorily mandated discount of 25% will be applied in deciding the indicative sentence.

IMPOSITION OF SENTENCE

83. For the offence of wounding Brendan Cook with intent to cause grievous bodily harm on 21 June 2022 at Cambridge Park, as charged in Count 2 of the indictment presented on 2 December 2024, I indicate a sentence of imprisonment for 6 years with a non-parole period of 3 years.

84. For the aggravated assault of Daniel BUSS with intent to unlawfully take a motor vehicle on 26 June 2022 at Doyalson, as charged in sequence 5, I indicate a sentence of 3 years with a non-parole period of 1 year and 6 months.

85. For the assault that occasioned actual bodily harm to Muhammad TALLAT on 27 June 2022 at Lisarow, as charged in sequence 3, I indicate a sentence of 1 year and 2 months.

86. For the offence of demanding property from Muhammad TALLAT with menaces on 27 June 2022 at Lisarow, as charged in sequence 6, I indicate a sentence of imprisonment for 2 years.

87. For the related offence of unlawfully taking and driving a Toyota van from Joseph TRAN on 27 June 2022 at Lisarow, as charged in sequence 4, I indicate a sentence of imprisonment for 7 months.

88. I impose an aggregate sentence of imprisonment of 7 years that is backdated to commence on 27 June 2022 and expire on 26 June 2029.

89. I fix a non-parole period of 3 years and 6 months. No lesser sentence would reflect the seriousness of the offending. Eligibility for release to parole arises on 26 December 2025.

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Decision last updated: 17 April 2025