R v Dufty; R v Tisdell

[2020] NSWSC 1920

Supreme Court

New South Wales

Medium Neutral Citation:

R v Dufty; R v Tisdell [2020] NSWSC 1920

Hearing dates:

14, 15 and 16 December 2020

Date of orders:

30 December 2020

Decision date:

30 December 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

The offender Darcy Dufty is sentenced to imprisonment for 17 years and 3 months with a non-parole period of 12 years.

The offender Andrue Maxwell Tisdell is sentenced to imprisonment for 17 years and 3 months with a non-parole period of 12 years.

Catchwords:

CRIME — sentencing — murder — following pleas of guilty — where some facts of the offending are disputed — where disputed facts rest on the evidence of one witness — consideration of Murray direction — where reliability issues of witness — objective seriousness of offending — use of L-bar inflicting blunt force injuries — body dumped in forest — where offenders mutilated body — subjective factors — consideration of Bugmy principles — where finding made as to special circumstances

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes (High Risk Offenders) Act2006 (NSW), s 25C

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Evidence Act 1995 (NSW), s 165

Cases Cited:

Barbieri v R [2016] NSWCCA 295

Bugmy v R (2013) 249 CLR 571; [2013] HCA 37

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Knight v R [2006] NSWCCA 292; 164 A Crim R 126

Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3

Ohanian v R [2017] NSWCCA 268

R v Alcazar [2017] NSWCCA 51

R v Murray (1987) 11 NSWLR 12

R v Yeo [2003] NSWSC 315

Smale v R [2007] NSWCCA 328

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Sentence

Parties:

Proceedings 2019/144528
Regina
Darcy Dufty (Offender)

Proceedings 2019/144531
Regina
Andrue Maxwell Tisdell (Offender)

Representation:

Counsel:
Proceedings 2019/144528
L Carr SC (Crown)
B Bickford (Dufty)

Proceedings 2019/144531
L Carr SC (Crown)
M Swift (Tisdell)

Solicitors:
Proceedings 2019/144528
Office of the Director of Public Prosecutions (NSW) (Crown)
Barraclough Jones & Associates (Dufty)

Proceedings 2019/144531
Office of the Director of Public Prosecutions (NSW) (Crown)
Rebecca McMahon (Tisdell)

File Number(s):

2019/144528 and 2019/144531

Publication restriction:

Subject to non-publication orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), in respect of the identity of the persons identified by the pseudonyms “Mr Jones” and “Mr Smith” in the judgment.

Judgment

1. Early in the morning on Christmas Day 2018, Tyron Beauchamp was senselessly and violently killed by Darcy Dufty (“Mr Dufty”) and Andrue Tisdell (“Mr Tisdell).

2. Both offenders have pleaded guilty to Mr Beauchamp’s murder. The offence carries a maximum penalty of life imprisonment with a standard non-parole period of 20 years. For the reasons I will set out neither the maximum penalty or the standard non-parole period are appropriate in the circumstances of these matters.

3. At the time of his death Mr Beauchamp was 41 years of age. He had struggled with drug addiction and had only recently been released from a short period of imprisonment at the mid North Coast Correctional Centre.

4. Whilst in prison, he had met some Taree locals and had stayed in the Taree area after being released from custody on 3 November 2018. He got to know the offender, Mr Dufty and then was introduced to the offender, Mr Tisdell.

5. A week later he was dead at their hands. He was asleep in a shed where he was staying when attacked by the offenders.

6. I do not know much about Mr Beauchamp. There is no victim impact statement from any family member. However, he was in a relationship at the time and he had a son from an earlier relationship. He had been in prison, but he had served his time. He was due back in Queensland around the time of his death.

7. I extend my sympathy to his family. He did not deserve the treatment meted out to him by the offenders and nothing he did could be said to be any sort of justification for what happened to him.

8. The offenders now recognise this and have shown remorse. Their only explanation (not excuse) appears to be that they had both partaken of a significant cocktail of drugs and alcohol during the night before the event.

9. Whilst the offenders have both entered pleas of guilty and most of the relevant facts have been agreed, there remains a significant dispute on some critical facts which may impact on their culpability.

10. It is thus necessary that I make some factual findings in addition to the facts which have been agreed as part of the sentencing process. Both offenders gave evidence on the sentencing hearing.

11. It is important to emphasise that I may not make findings adverse to the interests of the offenders unless satisfied those facts have been established beyond reasonable doubt. [1]

    1. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]–[28]; Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41]; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29.

12. On the other hand, I need only be satisfied of facts asserted by the offenders on the balance of probabilities. [2]

    2. The Queen v Olbrich at [27]; Filippou v The Queen at [64], [66].

Facts

13. At the time of the offending Mr Dufty was 24 years of age and Mr Tisdell was 22 years of age.

14. Mr Dufty had been introduced to Mr Beauchamp whilst Mr Dufty resided with his brother-in-law at 12 Milligan Street, Taree. Mr Dufty and Mr Tisdell were good friends. Mr Dufty introduced Mr Tisdell to Mr Beauchamp.

15. During the afternoon and evening of Christmas Eve 2018, a number of people gathered in and around the shed in the yard of a house where Mr Dufty was staying, drinking and taking drugs.

16. Mr Dufty formed the view that Mr Beauchamp had been saying things about him. He had been “disrespecting” him.

17. Mr Jones was present in the shed at some stage during the afternoon and evening. Mr Jones is not his real name. There are orders in place under the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting publication in relation to his identity. I will refer to him throughout this judgment as “Mr Jones”. He gave evidence in the Crown case and is the key witness in respect of the disputed facts.

18. By midnight some of the men who had been at the shed had moved to the home of Mr Smith. Mr Smith is not his real name. There are orders in place under the Court Suppression and Non-publication Orders Act prohibiting publication in relation to his identity. I will refer to him throughout this judgment as “Mr Smith”.

19. By the early hours of Christmas Day, Mr Dufty and Mr Tisdell were well affected by drugs and alcohol. Mr Dufty described himself as being so affected by the combination of ice and Xantax that he was in and out of consciousness and numb. Mr Tisdell was affected by Xantac, ice, marijuana and alcohol. He describes himself as pretty out of it.

20. When Mr Dufty arrived at Mr Smith’s house, he said to Mr Jones that Mr Beauchamp had been disrespecting him and his mate, being a reference to things Mr Beauchamp had been allegedly saying earlier in the evening.

21. Mr Dufty suggested that they go back to the shed. His initial idea was to go back with Mr Jones and Mr Tisdell and force Mr Beauchamp to leave the shed and move on, that is away from Mr Dufty’s home. However, both offenders were quite prepared to use force on Mr Beauchamp if he did not go willingly.

22. That original idea morphed into an agreement between them that they would give him a hiding before moving him on. Mr Tisdell agreed to go along to help Mr Dufty.

23. Mr Jones drove them to the shed in his car. Mr Dufty and Mr Tisdell were pumping each other up in the car.

24. During the car trip Mr Dufty said, “Grab something. Let’s beat him up”. Mr Tisdell said, “Let’s do this”.

25. Mr Tisdell then grabbed a breaker bar or L-bar from Mr Jones’ car. Mr Tisdell and Mr Dufty then entered the shed. It is likely that Mr Beauchamp was asleep as Mr Dufty referred to him “waking up”.

26. Mr Beauchamp was lying on his bed trying to pull a doona up to protect himself. Mr Tisdell raised the breaker bar above his head and struck Mr Beauchamp to the head. The autopsy report reveals that he suffered a depressed fracture of the skull. Mr Jones heard the impact of the breaker bar hitting his head and saw blood on his head at some point. Mr Beauchamp was calling out “Don’t. Don’t”.

27. At the same time, Mr Dufty was punching Mr Beauchamp on his back and ribs. They pulled him off the bed onto the floor where they kicked him. He was bleeding from his head. Mr Beauchamp continued to call out “stop”. He was trying to protect himself with his hands.

28. They stopped kicking him and Mr Dufty said to Mr Tisdell, “We have to take him somewhere”.

29. Mr Dufty and either Mr Jones or Mr Tisdell wrapped Mr Beauchamp in the doona (there is a dispute about who). Mr Tisdell was holding Mr Beauchamp as he struggled, trying to get away. There was blood on the concrete in the shed. They carried him and placed him into the boot of Mr Jones’ vehicle. Mr Tisdell put the breaker bar in the boot as well and they then drove off with Mr Jones driving.

30. They drove to the Yarratt State Forest. They pulled off the road into a dirt cul-de-sac. They dumped Mr Beauchamp, still in the doona, a little off the side of the road and then drove back to Taree.

31. Mr Dufty wanted to burn Mr Jones’ car. Mr Jones refused. Mr Dufty and Mr Tisdell cleaned the car when they returned to Taree. They cleaned the shed and removed the bed and a large piece of linoleum in the following days.

32. Mr Dufty and Mr Tisdell went back to the place where they had dumped the body on the evening of 26 December, taking tools with them. They mutilated his body. Mr Tisdell cut off Mr Beauchamp’s hands. They then set fire to his body.

33. Mr Dufty and Mr Tisdell put the severed hands, wrapped in plastic, in the rear tray of the Ute.

34. The next day, Mr Tisdell and his brother in law, were driving across a bridge when they stopped to talk to some fishermen on the bridge.

35. Whist they were there, Mr Tisdell pulled a plastic parcel containing Mr Beauchamp’s hands from the tray of the Ute and threw it onto the road. One of the hands was seen by the fishermen. Mr Tisdell then picked up the bundle, put it in the seat and they drove off. Later, Mr Tisdell threw Mr Beauchamp’s hands into the Manning River.

36. On 27 December 2018, two persons noticed small spot fires in the forest. They called 000 and members of the Rural Fire Service arrived and extinguished the fire. They discovered Mr Beauchamp’s body. There was an obvious injury to the skull, the right leg was detached from the body and both hands were missing.

37. Mr Dufty and Mr Tisdell were arrested on 8 May 2019. Each participated in two recorded interviews. They both denied killing Mr Beauchamp and being involved in disposing of his body. They provided further information, such as being in the shed, but said they had played no role in the killing of Mr Beauchamp. Plainly, they lied.

38. Ultimately, they both pleaded guilty to Mr Beauchamp’s murder.

The disputed facts

39. There is a dispute between the Crown and the offenders as to what happened inside the shed at the time of the assault and then whether Mr Beauchamp was dead by the time they arrived in the forest.

40. The outcome of the dispute depends entirely on whether I accept the evidence of the Crown witness, Mr Jones.

41. There is no dispute that: Mr Jones was with Mr Dufty and Mr Tisdell for part of the afternoon and evening of 24 December; that he was at Mr Smith’s house in the early hours of 25 December; that he drove Mr Dufty and Mr Tisdell in his vehicle to the shed; that he drove Mr Dufty, Mr Tisdell and Mr Beauchamp in whatever state he was in to the forest; and that they then went back to Mr Jones’ place where Mr Dufty and Mr Tisdell cleaned Mr Jones’ car.

42. The disputed facts are limited but important in the context of the objective seriousness of the offending. The Crown agrees that if I do not accept Mr Jones’ evidence, it must follow that it has not proved the facts in dispute.

43. Mr Jones says that when they arrived at the shed he remained in his vehicle whilst Mr Dufty and Mr Tisdell went to the shed. The offenders say that Mr Jones accompanied them to the shed and shone his torch inside the shed whilst they assaulted Mr Beauchamp.

44. Mr Jones says that he only got out of the car when he heard sounds like “Ow Ow” coming from the shed. He moved to the shed and saw what was going on.

45. Mr Jones says that he said, “Stop it. Stop it”. The offenders dispute this. Mr Jones says that he was told by Mr Dufty that he had to take them somewhere. Mr Jones said he wasn’t going to do it but Mr Dufty threatened him.

46. Mr Jones says he was told to drive and told where to go. He did so because there were threats being made against him and his mother.

47. Mr Jones says that whilst they were driving, he could hear Mr Beauchamp in the boot calling out in pain saying, “let me out”.

48. Mr Jones says that when they stopped, Mr Tisdell took the keys. Mr Beauchamp was still showing signs of life. Mr Jones says that Mr Dufty and Mr Tisdell took him into the bush. They were gone for about five minutes. He heard Mr Beauchamp screaming “Stop. Stop.”

49. The offenders deny making any threats to Mr Jones. They say he was a willing participant. They say he shone a light in the shed whilst they were assaulting Mr Beauchamp. They deny that Mr Jones ever asked them to stop. They say they did not tell Mr Jones where to drive to. It was his decision.

50. Mr Tisdell admits that when Mr Beauchamp was placed in the boot, he was still alive, as he heard a couple of thumps coming from the boot. Further, Mr Beauchamp was struggling as he was being moved from the shed to the boot of the car.

51. However, the offenders maintain that when they opened the boot at the forest there were no signs life. He was dead.

52. The significance of the factual dispute is that on Mr Jones’ version, not only did the offenders beat Mr Beauchamp in the shed but they must have known that he was still alive, protesting and trying to get out, as they drove towards the forest and they must have known that he was still alive when they took him out of the vehicle at the forest. Further, on Mr Jones’ version, they assaulted him again with the intention of finishing him off.

53. There is no way of reconciling Mr Jones’ evidence with the evidence of the offenders. The offenders rejected Mr Jones’ version of events when it was put to them in cross-examination.

54. They submit that Mr Jones is an unreliable witness and I should not accept him at all.

55. They submit that I should give myself a Murray direction.

56. In R v Murray,[3] Lee J said at 19:

“In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.”

3. (1987) 11 NSWLR 12.

57. I accept that in circumstances in which the Crown relies on one witness for the purposes of proving facts adverse to the interests of the offenders for the purposes of sentencing, I must be satisfied that the witness is reliable beyond reasonable doubt. [4]

    4. Smale v R [2007] NSWCCA 328 at [71].

58. Both Mr Tisdell and Mr Dufty also submit that I must have regard to s 165(1)(d) of the Evidence Act 1995 (NSW).

59. It is not necessary for me to comment on the breadth and applicability of s 165. There is nothing novel in the proposition that, in the circumstances which led to Mr Jones giving evidence in these proceedings, there is a risk that his evidence may be unreliable.

60. I should approach Mr Jones’ evidence with caution, but I am still assessing his evidence in the context in which it is given, having regard to all of the other facts and circumstances and having regard to the contrary evidence given by the offenders.

61. For a number of reasons, I have a reasonable doubt about the reliability of Mr Jones. I am not satisfied beyond reasonable doubt that I should make the findings urged upon me by the Crown which are adverse to the offenders.

62. Firstly, I have regard to the fact that when first asked questions by the police, Mr Jones plainly lied. Only later when he became aware of his situation did he determine to provide detailed exculpatory information as to his involvement.

63. Secondly, this is a pattern of behaviour which has been demonstrated by Mr Jones on earlier involvement with the police, that is, initially denying offending and subsequently altering his position with an offer of information or assistance to the police.

64. Thirdly, there can be no dispute that Mr Jones has benefited significantly from the reduced charge which he faced. He was initially charged with accessory after the fact to murder. That charge was downgraded. He acknowledged the potential penalty was reduced from 25 to 5 years. He then entered an early plea. On sentence he received a 25% discount and a further 20% discount on account of the assistance given to the police.

65. Having a motive to lie does not mean he is not telling the truth but the personal benefit he receives from providing a version which involves Mr Beauchamp being alive and being further assaulted at the forest is a factor which I am entitled to consider in assessing his reliability.

66. Those matters may indicate that caution should be exercised in considering Mr Jones’ evidence but there also are aspects of his actual evidence which cause me to have a doubt as to his credibility.

67. Those matters are concisely identified in the submissions filed on behalf of the offenders. Without referring to all of those matters, some parts of his version are particularly improbable, including that:

1. Whilst the offenders were perpetrating the violence on Mr Beauchamp in the shed, Mr Jones was apparently screaming at the top of his voice and asking them to stop but the police inquiries did not identify even one person who heard those screams in the still of the night.

2. Mr Jones said he was driving particularly fast as he drove away from the shed in the hope of being pulled over by the police. That is, he as a person already known to police and by his own admission, a person who bought and “gave away” drugs who was driving his own car with a badly injured person wrapped in a doona in the boot, was hoping that the police would pull him over so that he could explain his lack of involvement to the police. This seems unlikely.

3. Mr Jones sought to downplay his involvement in drugs. On his evidence, he seemingly provided drugs to a number of people without anything in return. Either he must have had the capacity to easily obtain drugs or had such funds available that he did not require any payment. Of course, on the offenders’ version Mr Jones was supplying drugs to them. Mr Tisdell was required to provide some services to Mr Jones in return.

4. The proposition that the offenders needed to threaten not only Mr Jones but also his mother to get him to drive the car away from the shed seems improbable. Further, Mr Jones attempted to portray the offenders as having such reach and influence that they could be organising threats to him in prison. On his own evidence, his concern about these threats must have dissipated somewhat at some stage because he provided information to the police.

5. I find it surprising that it was the offenders who cleaned Mr Jones’ car after the event whilst Mr Jones seemingly did nothing. On Mr Jones’ version he was the one acting in fear, being intimidated and threatened. Yet, on return to Taree, the offenders cleaned his vehicle.

1. Mr Jones claimed to be fearful of Mr Dufty. He says that he tried to avoid him after the event but there is a telephone intercept of considerable concern which tends to suggest that he remained in contact with him and casts a considerable doubt as to his purported fear of Mr Dufty.

68. Mr Jones sought to portray himself as an unwilling participant, even a victim in the crime. Whatever his role in the events which happened at the shed, I have a real doubt that he was forced to drive the vehicle after those events or indeed that he was forced to do anything.

69. Further, there was a certain directness and frankness about the evidence of particularly Mr Tisdell when dealing with what they did and what they did not do.

70. In reality, the offenders and Mr Jones have shown themselves willing to lie when it suited them. I am required to consider the evidence of three persons, all of whom lied about their involvement after the killing of Mr Beauchamp and could still be lying about the events.

71. I am not required to make findings as to Mr Jones’ involvement. I am not required to make findings as to the credibility of the offenders. The facts between the Crown and the offenders are essentially agreed, subject to satisfaction of those additional facts based on Mr Jones’ evidence. There is no expert evidence which could assist in determining whether Mr Beauchamp was dead when they arrived in the forest.

72. However, I have a reasonable doubt about the content of Mr Jones’ evidence and his overall reliability.

73. In the circumstances, I would not make findings adverse to the offenders based on his evidence. As such, I must sentence on the basis that there was no further assault on Mr Beauchamp at the forest. He was dead when they opened the boot. Further, I must sentence on the basis of the agreed facts as to what happened in the shed and not Mr Jones’ version of what he says he saw the offenders doing.

Objective seriousness

74. In their drug induced and alcoholic state, the offenders set upon Mr Beauchamp whilst he lay in a bed, unprotected and defenceless. It was dark. The motive for the attack appears only to have been that he had been saying things early in the evening “disrespecting Mr Dufty”.

75. It was Mr Dufty’s idea to go there and they decided in the car to give him a hiding. Mr Tisdell used a weapon, being the L-bar. He hit Mr Beauchamp in the head with the L-bar. He did so having been urged by Mr Dufty whilst in the car to grab something to use on Mr Beauchamp. Mr Dufty used his fists and feet to inflict injury upon Mr Beauchamp. They both kicked him even whilst he was lying on the ground. They acted in company, attacking Mr Beauchamp.

76. There are multiple blunt force injuries referred to in the autopsy report including a depressed skull fracture, multiple facial fractures and multiple rib fractures. The skull fracture was at the back of the head and the pathologist was unable to determine whether there were multiple blows or just one forceful blow.

77. It must have been obvious to them that he was seriously injured when he was rolled in the doona and placed in the boot of the car. That must have been a terrifying experience for Mr Beauchamp. Consistent with Mr Dufty’s original idea, they wanted to and did take him away from the shed. Even though Mr Jones was driving they must have known that they were heading away from the town. Whilst they might have been surprised to find him dead when they opened the boot of the car in the forest, they had no concern for how badly he was hurt or what might happen to him, if he was still alive, whilst they were taking him out to the forest.

78. The next day, they returned and mutilated Mr Beauchamp’s body. I do not accept that their treatment of the body after the event is indicative of an intention to kill prior to the event, but it is a matter which can be taken account of in assessing the objective seriousness of the offending. [5]

    5. R v Yeo [2003] NSWSC 315 at [36]; Knight v R [2006] NSWCCA 292; 164 A Crim R 126; at [28]–[29].

79. It is suggested by the offenders that the acts of violence were not premeditated or planned and that the attack lasted 9 minutes. Whatever their original intentions, by the time they arrived at the shed they had decided that they would give Mr Beauchamp a bashing. They intended to and did perpetrate significant violence on him.

80. I accept that they did not intend to kill him, but they intended to inflict grievous bodily harm upon him and the infliction of such harm resulted in his death. The fact that they were in such a drug induced state does not lessen the objective seriousness of the offending or the offenders’ moral culpability. [6]

    6. R v Alcazar [2017] NSWCCA 51 at [126]; Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 at [23]–[28].

81. The offenders were involved in a joint criminal enterprise. Whilst I must consider the objective seriousness of each offender’s conduct separately, in reality, they did everything together.

82. In my view, the objective seriousness of their offending is the same. It is aggravated by their treatment of Mr Beauchamp’s body. It is a grave example of this type of offending and, in my determination, falls above the mid-range of seriousness for this type of offence.

Subjective features

83. The offenders’ subjective cases are also similar.

84. They are both Aboriginal persons who come from a background of disadvantage and trauma and suffer from psychological and mental health issues.

Mr Dufty

85. Mr Dufty relies on reports from psychiatrist Dr Richard Furst, dated 9 December 2020 and Dr Christopher Bench, dated 16 June 2020 and significant other material which was provided to the doctors for their assessments. He gave evidence on the sentencing hearing.

86. I have regard to all of the material relied upon and his evidence.

87. Whilst he professes to remain close to his parents, his father was a violent man and he was removed from his care and placed into the care of the Department of Community Services between the ages of 11 and 16. He also suffered sexual abuse at the hands of a relative and a stranger in his younger years.

88. He commenced his drug use at the age of 13, using marijuana. He commenced using amphetamines at the age of 16 and was a regular, if not daily, user up to the time of his arrest. He also abused opioids. Plainly, he suffered from a long-standing substance abuse disorder.

89. Prior to entering custody he had had no real assistance in dealing with his drug problem. He did seek assistance from the Biripi Aboriginal Corporation Medical Centre in January 2018, seeking to be placed on the suboxone programme with the drug and alcohol unit in Taree.

90. He started drinking at the age of 14 and remained a heavy drinker at the time of his arrest.

91. Prior to Mr Beauchamp’s murder, there was a 10-year history of drug and alcohol abuse. His longest period of abstinence was apparently 6 months in 2017.

92. He struggled at school and was regularly suspended before being expelled from Taree High School because he threatened to stab a teacher.

93. He had learning difficulties and dyslexia. He was diagnosed with ADHD and oppositional defiant disorder and later a borderline personality disorder. He engaged in self-harm from the age of 13 to 14. Even in 2017, he engaged in self-harm following an argument with the person with whom he was in a relationship.

94. He suffers from mood swings, anxiety and depression from time to time.

95. According to Dr Furst, he does not suffer from an intellectual disability, but is of low to moderate intelligence. There were no psychotic features which contributed to the offending and there is no evidence that he did not have the capacity to understand what he was doing at the time of the offending.

96. However, Dr Furst suggests that the combination of methylamphetamine and alprazolam probably fuelled his anger towards Mr Beauchamp and probably also made him more aggressive and disinhibited at the time of the offending. That may be an explanation, but it is not a mitigating factor on sentence. [7]

    7. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5AA).

97. His mental health problems may be relevant to sentencing in a number of different ways. [8] Further, even a mental disorder of modest severity may be relevant in considering the need for general or specific deterrence. [9]

    8. Barbieri v R [2016] NSWCCA 295 at [53].

    9. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [178].

98. I am not satisfied that there is a direct causal link between his mental health disorders and the offending, but I have regard to his mental health disorders in giving less weight to the need for general and specific deterrence. It is necessary that there be a measure of denunciation and deterrence but the weight that should be given to such factors is very much diminished in a case such as this.

99. At the time of the offending, he was in a relationship. He has two children as a result of earlier relationships.

100. His criminal offending does not assist him, but it is not such that it should result in a lengthier sentence by way of additional retribution or deterrence.

101. He has been convicted of a number of charges relating to shoplifting and damage to property. In 2017 he was convicted of domestic violence related offences, including contravene a prohibition on an AVO and stalk and intimidate charges. In January 2019, he was convicted of possessing a prohibited drug.

102. Finally, whilst on remand for this offence, he committed the offence of reckless wounding in company. He was sentenced to 3 years’ imprisonment commencing 21 March 2019 with a non-parole period concluding 20 March 2021.

103. According to the facts agreed on sentence in the District Court, he was involved with the co-offender in an attack on his cellmate at Long Bay Correctional Complex. The co-offender directed boiling water at the victim’s face and stabbed him in the back. Mr Dufty threw punches at the victim and stabbed him in the chest and arm using a 15-centimetre silver blade.

104. Mr Dufty is currently serving a sentence in respect of that offending. It does not lead to an increase in the severity of the sentence that I will impose in respect of the murder of Mr Beauchamp.

105. I accept that Mr Dufty has expressed remorse. He said so to Dr Furst suggesting, amongst other things, that he was sorry for what he had done. He gave more expansive oral evidence to the same effect.

106. It is important to distinguish between an offender feeling sorry for himself and his plight and genuine remorse and sorrow for the effects of his actions on others. Perhaps there was a bit of both in Mr Dufty’s evidence but offenders such as Mr Dufty are not often blessed with the gift of eloquence and precision in their language. I accept that Mr Dufty is now remorseful for his conduct.

107. Having said that, it may have taken some time for him to come to this position because three weeks after the murder he recorded a short rap song in which he demonstrated the opposite reaction to his conduct. He appeared to be boasting about what he had done.

108. Mr Dufty wishes to engage in programs in prison which will assist him in managing his aggression and addiction. He wishes to deal with his opioid abuse problem. Dr Furst suggests that the prospects of successful rehabilitation must depend on Mr Dufty’s attitude whilst in prison and beyond.

109. I accept that Mr Dufty has indicated some motivation to undertake those programs, but I am unable to accept that he has good prospects of rehabilitation at this time. His offending, whilst on remand, also causes me to have some doubt as to his prospects of rehabilitation.

110. Having said that, in my view, this is a matter in which the principles set out in Bugmy v R [10] apply.

     10. (2013) 249 CLR 571; [2013] HCA 37.

111. Mr Dufty’s background of disadvantage and trauma can be taken into account by way of mitigation in the sentence. He has suffered both physical and sexual abuse. He was subject to violence at the hands of his father. He suffered further on being placed under the care of DOCS. His time at school must have been made more difficult by his psychological problems and his ADHD. His difficulties manifested themselves in anger, aggression and turning to drugs and self-harm.

112. The fact that the murder of Mr Beauchamp took place when Mr Dufty was an adult does not detract from the appropriateness of having regard to Mr Dufty’s many years of trauma, disadvantage and deprivation. [11]

     11. Ohanian v R [2017] NSWCCA 268 at [20]–[28].

113. His capacity to mature and learn from experience and react appropriately to conflict (such as Mr Beauchamp disrespecting him by saying things about him) was surely stunted and diminished.

114. His background provides an explanation for his criminal history. His incapacity to control his impulses to deal with even a verbal slight in a violent way must be very much a product of his upbringing and associated disorders and mental health issues.

115. In assessing his moral culpability, I consider that he is entitled to some leniency having regard to his background in accordance with the principles identified in Bugmy.

116. Mr Dufty is entitled to the 25% discount on account of the utilitarian value of his early plea of guilty. I have not found facts which were pressed by the Crown and which might have impacted upon the extent of the discount. That discount is applied to the head sentence that I would otherwise have imposed.

117. The final issue which arises on Mr Dufty’s case is the extent to which any sentence should be backdated, having regard to the fact that Mr Dufty is currently serving a sentence for reckless wounding with a non-parole period which expires on 20 March 2021.

118. At the time of the commission of that offence, he was not a convicted inmate. I have a discretion in allowing some degree of concurrency between Mr Dufty’s existing sentence and the sentence in respect of Mr Beauchamp’s murder, but it is important to recognise that that the offending constitutes two discrete acts of criminality and any period of concurrency should not diminish the significance of the offending whilst in custody.

119. Further, when sentenced on 16 July 2020 in the District Court in respect of the reckless wounding charge, his sentence was backdated to 21 March 2019 which is a date even before he was taken into custody. This was plainly an error, perhaps brought about by the provision of incorrect information to the sentencing judge.

120. I propose that the sentence for the murder of Mr Beauchamp be backdated to commence on 8 May 2020, thereby allowing a period of concurrency, but also ensuring that time spent in custody also reflects his conduct in respect of the reckless wounding offence.

Mr Tisdell

121. Mr Tisdell was 22 at the time of the murder of Mr Beauchamp. He relies on reports of Dr Andrew Ellis, Forensic Psychiatrist dated 9 April 2020 and 1 December 2020. He also relies on his own affidavit and he gave oral evidence, both on the disputed facts and on his subjective case.

122. Further, I received a letter from his mother, Jodi Tisdell, dated 10 December 2020 and some other medical records.

123. Mr Tisdell is one of six children. Unfortunately, his path to where he is now commenced as early as aged seven when he was involved in stealing things and lighting fires.

124. He lived with his parents until he, his sister and brother were placed into care through the Department of Community Services. He spent four years away from his parents’ care.

125. He would often get into trouble. Hs parents struggled with drug addictions and they lived in poverty. There were six children to care for. He says that when his mother dropped the three children (including him) at the DOCS office, she said “Fuck off and go somewhere else to live”. His father spent 20 years in prison.

126. He returned to his parents at the age of 11. At least one of his siblings has spent much of his teenage years and adult life in prison. He moved out of home at the age of 14 with his girlfriend and at the age of 16 he was spending time in detention.

127. As far as his education is concerned, he refers to being suspended many times, although he ended up completing Year 12 in detention.

128. He married when he was 20. He and his wife, Keisha, have two daughters who are now almost three and two. They used to go and see him in prison but, since COVID-19, they have not been able to go.

129. He lived in a house where drugs were a constant. By the age of 14, he was experimenting with dexamphetamine. He says that he and his girlfriend became alcoholics as teenagers.

130. By the age of 18 he was smoking marijuana and consuming excess quantities of alcohol. He tried heroin. He says that he first tried Xanax and ice a few months before Mr Beauchamp’s murder.

131. He identifies as Indigenous. His mother is an Aboriginal person.

132. His mental health has mainly been treated through the Aboriginal Medical Service and community mental health teams.

133. He was first sent to a counsellor at the age of seven to deal with his reaction to parental drug use. He began cutting himself at the age of 14 but stopped at the age of 15. He says he attempted suicide at the age of 14 when he jumped in front of a truck. It seems that throughout his teenage years, he drank heavily. He was diagnosed with ADHD and drug induced psychosis at the age of 19.

134. He informed Dr Ellis that whilst he has been in custody he has been using Buprenorphine and heroin. He has never entered any drug rehabilitation programme. Dr Ellis opines that he would meet the criteria for a substance abuse disorder and anti-social personality disorder.

135. There is also reference to a substance induced psychosis with development of persecutory delusions during periods of intoxication in his teenage years.

136. There is no evidence that Mr Tisdell did not have the capacity to understand what he was doing at the time of the offending. I do not accept any direct causal link between his mental health conditions and his actions at Christmas time in 2018.

137. I accept that over that period, 24 to 26 December 2018, he had consumed large quantities of alcohol and drugs, but this is not a mitigating factor, although it affords some explanation for his conduct.

138. I am in receipt of a supportive letter from his mother, Jodi Tisdell. She confirms much of Mr Tisdell’s own evidence and, in particular, that he was exposed to heavy drug use from a very early age and that he has been exposed to some domestic violence between his mother and father. She had to work very hard to get her son back. She refers to him as a loving, caring and loyal son but acknowledges his crime. She says he is very remorseful for what happened. It has had a significant effect on the whole family.

139. Further, Mr Tisdell seems determined to do something about his drug issue. According to a prison record of 25 May 2020, he has been waiting to speak with the drug and alcohol service and has expressed his concern about his drug dependency. During the initial period of custody, he had concerns about his mental health as he referred himself for treatment.

140. Mr Tisdell has a significant criminal history commencing with convictions in the Taree Children’s Court when he was only 14. He was convicted with assault occasioning actual bodily harm in 2010. By the age of 15, he had been convicted of a break, enter and steal, assaulting Police and further assault charges. Both in 2010 and 2012, he was convicted of the offence of robbery in company. In 2015 he was subject to a number of drug charges.

141. Unlike Mr Dufty, he has not committed any offences whilst in custody, but his criminal history is one of violence from a young age.

142. I am satisfied that Mr Tisdell has shown remorse. He said so to Dr Ellis. He said so in his affidavit and orally. He has said so to his family. His remorse appears to be genuine.

143. It is difficult to determine whether his prospects of rehabilitation are good or real. My impression from his evidence is that he is determined to undertake such programmes as are available which might assist him with his drug dependency, and which might generally promote his rehabilitation. It is said that he might use his mother as an example of someone who has fought back from extreme adversity. I would have regard to his prospects of rehabilitation as a mitigating factor.

121. It is not necessary to compare or equate Mr Tisdell’s life of disadvantage with that of Mr Dufty. It is only necessary to say that Mr Tisdell comes from a background of extreme disadvantage, depravation, trauma and poverty. He was placed under the care of DOCS for a period of four years. Within a short period of returning to the family home, he was smoking, drinking alcohol and taking drugs. On his own evidence, he was even in trouble before he was placed with DOCS, being at the age of seven.

122. None of this justifies or excuses his offending but his subjective case fits squarely within the principles set out in Bugmy to which I have already referred. He is entitled to some consideration in the assessment of his moral culpability, having regard to his background.

123. On the other hand, there are aggravating features such as his use of a weapon and the fact that the crime was committed in company.

124. Mr Tisdell is also entitled to a 25% discount on sentence having regard to the utilitarian value of his early guilty plea.

125. I am satisfied that there should be a finding of special circumstances for both offenders leading to a slightly reduced non-parole period. There is a risk of institutionalisation, having regard to the long period they will spend in prison, and I am satisfied that the COVID-19 conditions in prison which are making the offenders’ time in custody more onerous justify a slightly extended period on parole.

126. However, although the offenders did not intend to kill Mr Beauchamp, any sentence must reflect the fact that they did indeed do so in a violent way and further that they showed a complete disregard for him by placing him in the boot and when they returned, they mutilated his body.

127. The purposes of criminal punishment include the protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform.

128. As observed in Veen v The Queen (No 2),[12] those purposes overlap and none can be considered in isolation when determining what an appropriate sentence is in a particular case.

     12. (1988) 164 CLR 465 at 476; [1988] HCA 14.

129. In the process of intuitive synthesis that is the sentencing process, I have had regard to the objective seriousness of the offending, as well as the offenders’ subjective circumstances.

130. I have been provided with a number of what are said to be comparative cases. As has often been said, [13] such cases may provide some guidance to a sentencing judge in terms of the principles to be applied, but all cases are different and I have regard to those cases as demonstrating a very broad range of sentences that may be available to the Court in respect of the crime of murder.

     13. Director of Public Prosecutions (Cth) v De La Rosa at [304]–[305].

131. Finally, I consider that the objective seriousness of their offending and their subjective cases are so similar that they should be given identical sentences. There may be some slight difference in mitigating and aggravating factors but they tend to balance out. The principle of parity suggests that they should be given equal sentences.

The sentence

155. Darcy Dufty, for the murder of Tyron Beauchamp, I sentence you to a term of imprisonment with a non-parole period of 12 years with a further balance of term of 5 years and 3 months. Your sentence would have been 23 years but for the 25% discount. As I have said earlier in this decision, I will backdate the sentence so it commences on 8 May 2020. You will be first eligible for release on 7 May 2032.

156. Andrue Tisdell, for the murder of Tyron Beauchamp, I sentence you to a term of imprisonment with a non-parole period of 12 years with a further balance of term of 5 years and 3 months. I will backdate the sentence so it commences on the day on which you entered custody being 8 May 2019. You will be first eligible for release on 7 May 2031.

157. As the offenders have been convicted of a “serious violence offence”, it is a requirement that they be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence: s 25C. I ask the offenders’ solicitors to undertake that task on the Court’s behalf.

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Endnotes

Decision last updated: 31 December 2020