R v Becker

[2019] NSWSC 1205

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Becker [2019] NSWSC 1205
Hearing dates:	30 August 2019
Decision date:	11 September 2019
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	(1) Convicted of manslaughter. (2) I impose a non-parole period of 7 years 3 months, to commence on 27 June 2017. (3) That will be followed by a parole period of 2 years 6 months, to commence on 27 September 2024 and expire on 26 March 2027. (4) To express my sentence another way, I have imposed a head sentence of imprisonment for 9 years 9 months with a non-parole period of 7 years 3 months, with a full backdate. (5) Were it not for the discount for the plea of guilty, I would have imposed a head sentence of imprisonment for 13 years. (6) The first date upon which the offender will be eligible for possible release to parole is 26 September 2024.
Catchwords:	CRIMINAL LAW – sentence – manslaughter – plea of guilty – offender relied upon partial defence of excessive self-defence – discussion of objective and subjective features – deceased and offender both armed – offender shot first – intention to inflict grievous bodily harm – lack of remorse – dependence on ice – absence of criminality before dependence developed
Legislation Cited:	Crimes Act 1900 (NSW), s 421
Category:	Sentence
Parties:	Regina Phillip Raymond Becker
Representation:	Counsel: B Campbell (Crown) P Young SC (Accused)     Solicitors: Solicitors for Public Prosecution (Crown) Universal Law (Accused)
File Number(s):	2017/191129

REMARKS ON SENTENCE

Introduction

1. On 24 June 2017 in the city of Tweed Heads in northern New South Wales, Phillip Raymond Becker (the offender) fatally shot Ace John Anthony Hall (the deceased). The offender was originally charged with murder, but after a period of negotiation, a plea of guilty to the lesser form of homicide, manslaughter, was entered at an early stage in the Local Court. That was on the basis that the offender had acted in excessive self-defence. In other words, the offender believed that the fatal act was necessary in defence of himself or another person, but the fatal act was not a reasonable response in the circumstances as the offender perceived them: s 421 of the Crimes Act 1900 (NSW).

2. The matter was committed for sentence to this Court, and evidence and submissions were received by me on 30 August 2019 at Sydney. After a period of reflection since then, it falls to me to impose sentence upon the offender today.

Objective features

3. The background to this tragedy is as follows. Both the offender and the deceased were relatively young men: the offender was born in April 1984, and was accordingly aged 33 years, and the deceased was born in April 1986 and was aged 31 years at the time of his death. Each of them was part of a criminal group that was in the business of supplying amphetamines. The offender had developed a serious dependence upon the prohibited drug ice, and I infer that problematic contact with prohibited drugs may have led the deceased into supplying such substances as well.

4. Each of them was employed by an older man who was obviously a significant criminal, and who had access to large sums of cash and firearms. That person had recently lost well over $100,000 as part of his drug dealing business, and he subsequently decided to arm his employees. The offender was provided with a .44 Magnum revolver. In due course, the deceased received possession of a shortened single barrel shotgun. It was known within the criminal group that each of those men was in possession of each of those firearms.

5. At one stage a rental car was obtained, and provided to the deceased at the expense of the older man. For some unclear reason, the deceased neglected to return it on time, and that failure became a point of dispute between the deceased and his employer.

6. Eventually in the late afternoon of the day of the offence, the older man, the offender, and the deceased arrived in three separate vehicles at a point on Machinery Drive, Tweed Heads. The deceased remained in the driver’s seat of the car in which he had arrived. The older man got out of his car and approached the driver’s side door where the deceased was sitting. The offender also alighted from his vehicle; at the time he had over his shoulder a satchel that contained the revolver, which was loaded. He was also grossly intoxicated by amphetamines at the time (of course, I do not mention that as a mitigating subjective feature; rather, in terms of the obvious danger it presented to others in these particular circumstances, I recount it as an objective feature).

7. A short conversation ensued between the older man and the deceased. During that conversation, the offender obtained the revolver from the satchel. At that moment, the deceased made a movement that suggested that he might have been trying to produce the shotgun from beneath the driver’s seat. The offender suddenly fired a single shot from intermediate range, which entered the right side of the abdomen of the deceased and exited from the area of his left hip. The track of the bullet was generally downward, right to left, and back to front.

8. After he was shot, the deceased drove away for a couple of hundred metres before he passed out. Others in that motor vehicle took over the driving, and promptly took the deceased to a hospital. Tragically, his life was unable to be saved. On one analysis, it was snuffed out over nothing more than a few days’ fees for a rental car.

9. In the meantime, the offender fled the scene. He subsequently spoke to others about having shot the deceased, but of being unaware of the degree of any injury inflicted. He also spoke of the shooting as having been like a “reflex action”. He took steps to hide the revolver, and in the event that lethal weapon has never been recovered. He also took steps to escape justice, but was arrested three days after the shooting on 27 June 2017, and has been in custody ever since.

10. As I have said, I approach this offence of manslaughter on the basis that all of the physical and mental elements for murder have been established beyond reasonable doubt, but the culpability of the offender is reduced to manslaughter by way of him acting in excessive self-defence, in that he honestly believed that what he did was necessary for that purpose, but his act was an unreasonable response in the circumstances as he perceived them.

11. As for the disputed question of which necessary intention for murder has been established, I think it probable that, in his drug-affected state, the offender spontaneously formed an intention to kill. But the criminal law requires me to be satisfied of any matter in aggravation beyond reasonable doubt. Reflecting on the intoxication of the offender; this spontaneous act; the absence of any evidence of pre-existing motive; the fact that the offender did not shoot the deceased in the head; the trajectory of the projectile; and the things the offender did and did not say after the shooting, I am not satisfied of the graver mental element to the criminal standard. Having said that, it is inescapable that anyone who discharges a high calibre revolver from intermediate range at another human being must intend harm of the most grievous kind.

Objective seriousness

12. Turning to my assessment of the objective seriousness of this offending, of course the offence of manslaughter is of great gravity, featuring as it does the unlawful taking of a human life. And the maximum penalty of imprisonment for 25 years for the offence of manslaughter speaks for itself. But it is well known that, factually and legally, that lesser form of homicide can be committed in a variety of circumstances, and it is necessary for me to make an assessment of the gravity of what the offender has done, in the circumstances in which he has done it.

13. In this case, it is true that the offender himself believed that it was necessary to do what he did in self-defence. But there is force in the submission of the Crown prosecutor that, at the moment the shot was fired, the offender was armed and the deceased was not; it was open to the offender to protect himself by, for example, brandishing the revolver, or even training it on the deceased, without actually firing a shot.

14. As well as that, and even allowing for the proposition that the discharge of the weapon was motivated by self-defence, by possessing an unlawful deadly weapon; by doing so when it was loaded; by producing it from the satchel; by doing so in a public place; by doing so whilst grossly intoxicated by a prohibited drug well known to induce profound agitation and paranoia; and by engaging in the trade of prohibited drugs as the underlying reason for doing all of that, with fatal result, the offender has placed himself far outside the boundaries of the criminal law of New South Wales.

15. This example of the offence of manslaughter can only be assessed as being of significant gravity.

Subjective features

Plea of guilty; remorse not established on balance

16. Turning to subjective features, as I have said a plea of guilty was entered at an early opportunity. The parties were agreed that the head sentence of the inevitable period of full-time custody that I shall impose must be the subject of a 25% discount.

17. Separately, I approach the plea on the basis that the offender has accepted responsibility for this homicide at an early stage. But, he took steps to hide the weapon and flee the scene; on arrest he exercised his right to silence (as he was perfectly entitled to do); I have heard nothing from him directly, or indirectly through others close to him, as to how he feels about what he has done; and the only evidence relied upon for a finding of remorse (other than the plea itself) is some fleeting references in a psychological report. As for the latter, I note that, when he first spoke to that person in custody months after the offence, the offender was either affected by, or withdrawing from, prohibited drugs. That is a fact that hardly bespeaks deep remorse for, or reflection about, this act of fatal violence inflicted while the offender was grossly intoxicated.

18. In all those circumstances, I proceed on the basis that there has been an early acceptance of responsibility with regard to the offence of homicide, with the inevitable consequence of many years of imprisonment. But bearing in mind the requirements of statute, I do not go further and find that the offender is remorseful.

General matters

19. The following review of aspects of the life of the offender is derived from psychological reports tendered without objection and without a request for cross-examination of their author on the part of the Crown prosecutor. I proceed on the basis that the following has been established on the balance of probabilities.

20. The offender is now 35 years of age. He was born in the Hunter region of New South Wales, but he and his family have lived in the Tweed Heads area for many years. As a boy, his upbringing was unremarkable, and the family was not blighted by violence or abuse of prohibited drugs or alcohol. On the other hand, the offender had a difficult relationship with his father, had trouble concentrating at school, was suspended more than once, and ultimately left school for work at an early age. All of that may have been underpinned by childhood ADHD, with which the offender has been diagnosed as an adult, and for which he has been medicated. It is also the case that psychiatric difficulties have been suffered by more than one member of his family, and I think that that may have made his upbringing more difficult as a result.

21. His life proceeded unremarkably for many years whereby he enjoyed a romantic relationship with a high school sweetheart for a time, and worked as an interstate truck driver. Gambling was certainly a negative part of his life, but it does not seem to have become unduly destructive.

22. In 2010, the offender was the victim of a serious assault in a hotel, and I accept that that experience made him hypervigilant and unsettled thereafter. I also accept on balance that the applicant suffered a degree of PTSD as a result of it, and that in turn played some role in him commencing to misuse his prescription drugs.

23. Notably, before 2015, the offender had never intersected with the criminal justice system, and there is no evidence that he had ever been a person capable of violence, let alone homicide. His former romantic partner has written of the good character and the potential that he possessed at that stage.

Drug use and criminal record

24. All of that changed when the offender commenced a romantic relationship with a woman who was a sex worker, suffered from mental difficulties, and had a dependency on amphetamines. Caught up in that relationship, and believing that he could help her, the offender made the catastrophic decision to substitute ice for his ADHD medication. Predictably, his life rapidly spiralled downward: he quickly became dependent upon that very damaging substance; he began to intersect with the criminal law, sometimes in serious ways; he became a drug dealer; and he served more than one sentence of imprisonment for supplying prohibited drugs.

25. Indeed, at the time of this fatal offence, he had been released on parole only months before. After his release, he had promptly returned to using, and dealing in, that highly destructive drug. Unquestionably, it is a serious aggravating feature that, whilst subject to parole for supplying drugs, he reverted to the same offending, and the death of another human being was the indirect result.

The future

26. As for the future, as I have said, when first seen by the psychologist in custody, the offender was either affected by prohibited drugs yet again, or withdrawing from them. He also displayed a remarkable lack of insight at that stage (even allowing for his low average intelligence) into the role that they had played in destroying one life, that of the deceased, and seriously damaging another, his own. Having said that, I think that that may have been the “drugs talking”, even then. When he saw the psychologist on a latter occasion, the offender spoke more thoughtfully and insightfully; in particular, he spoke of his undoubted need to get help with regard to the dependence that underpins these proceedings.

27. On the one hand, the offender has come to see the catastrophic effects of his addiction to ice. On the other hand, that underlying issue remains, in my opinion, completely unresolved at this stage. In all the circumstances, one can possess only a guarded optimism about the future, as things currently stand.

Various aspects

28. I turn briefly now to a number of separate aspects of my task.

29. First, although the offender served a short period of balance of parole, as a matter of discretion a full backdate will be granted until the date when continuous custody for this homicide commenced; that is, 27 June 2017.

30. Secondly, these remarks reflect all of the aggravating and mitigating features that I have taken into account, and I do not propose to repeat them mechanistically.

31. Thirdly, the offender has been imprisoned twice before, is a mature man, and has failed grievously on parole. As well as that, the significant length of the parole period that I shall impose means that there is no call for reduction of the period to be spent in custody before eligibility for parole arises, despite the good intentions of the offender to get help when he is released, years from now.

32. Fourthly, the offender should be aware that, in light of the nature of the offence that he has committed, he may not be released, even at the conclusion of his entire head sentence, if it is established at that stage that he presents a danger to the community.

Length of sentence

33. As for the length of any sentence to be imposed, whilst accepting the extreme variability of the offence of manslaughter, both counsel were content for me to have very general regard to sentences imposed in this State for the offence of manslaughter in which excessive self-defence is relied upon, and, more particularly, when an offender has believed that it is necessary to shoot another person in order to prevent himself or herself being shot. I have reflected upon a number of such sentences, but because every case turns on its own facts and is an exercise in instinctive synthesis, I shall not pause to analyse them here.

34. On the one hand, my sentence seeks to give full weight to the subjective motivation of self-protection for the commission of this fatal act of wanton public violence; on the other hand, my sentence also seeks to give weight to the simple fact that a human life has been unlawfully taken, and in circumstances whereby, as I have said, the offender had placed himself in a world of lawlessness.

Victim impact statements

35. Finally, I received three very moving victim impact statements from the mother, the elder sister, and the young sister of the deceased. They poignantly described the suffering that has been inflicted on many, far beyond the fatal wound inflicted upon the deceased.

36. As I have said, I infer that the deceased may perhaps have had his own troubles that led him to inhabit the world that I have described. He has been variously described by those who love him as charismatic, a best friend, and as a strong, independent, and protective brother. All who provided me with statements have spoken of the countless ways in which his loss is, and will be, sharply felt. For example, his younger sister has spoken of the loss that will be felt by his absence in the future when she achieves her diploma of nursing; his mother has spoken of a piece of her heart that will always be broken and missing; his elder sister has spoken of her realisation that the deceased will not be present for all of the joyful milestones in her life. On behalf of the Court, I extend my condolences to the three of them, and to all who have suffered, and will continue to do so, as a result of the loss of Ace Hall.

37. No doubt every person in this courtroom and on the AVL appreciates that no sentence that I can impose for this offence of manslaughter can make good their loss. Still and all, I hope that the conclusion of these proceedings today will provide some measure of closure, and some reduction in the pain that has been experienced by many.

Imposition of sentence

38. Phillip Raymond Becker, you are convicted of the offence of manslaughter.

1. I impose a non-parole period of 7 years 3 months, to commence on 27 June 2017.

2. That will be followed by a parole period of 2 years 6 months, to commence on 27 September 2024 and expire on 26 March 2027.

3. To express my sentence another way, I have imposed a head sentence of imprisonment for 9 years 9 months with a non-parole period of 7 years 3 months, with a full backdate.

4. Were it not for the discount for the plea of guilty, I would have imposed a head sentence of imprisonment for 13 years.

5. The first date upon which the offender will be eligible for possible release to parole is 26 September 2024.

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Decision last updated: 11 September 2019