R v Ethan Lindsay Beckett - [2015] NSWDC 416

District Court

New South Wales

Medium Neutral Citation: R v Ethan Lindsay Beckett [2015] NSWDC 416
Date of orders: 18 June 2015
Decision date: 18 June 2015
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
See orders [110] –[115]

Catchwords: CRIMINAL LAW – sentencing – 2 armed robbery charges, car-jacking – police pursuit – further charge of wounding police victim with intent to prevent lawful arrest – common assault and larceny on Form 1 – on parole for similar offences – offender very low intellectual capacity – extremely dysfunctional and deprived upbringing, son of Bega schoolgirls killer – bullied by local communities and forced to move as a child – Henry guideline case discussed – special circumstances – need for considerable supervision – discussion re inadmissible portions of Victim Impact Statement
Legislation Cited: Crimes Act 1900 ss 33(1)(b), 33(2)(a), 51B(1), 97(1)
Crimes (Sentencing Procedure) Act 1999 s 28
Cases Cited: R v Henry & Ors [1999] NSWCCA 111; 46 NSWLR 346
Category: Sentence
Parties: Director of Public Prosecutions
Ethan Lindsay Beckett (Offender)
Representation: Mr Henshaw (DPP)
Ms Mendes (Offender)

File Number(s): 2013/326645
Publication restriction: Nil

Judgment

HER HONOUR: The offender, Ethan Beckett, is before the Court for sentence on five charges set out in the court attendance notices tendered.
The first is a charge that on 28 October 2013 at Orange, he robbed the named victim of a motor vehicle whilst being armed with a 30 centimetre kitchen knife.
The second is a charge that on 29 October 2013 at Wagga, he robbed a named victim of a motor vehicle whilst being armed with a 30 centimetre kitchen knife.
Both of these offences are known as armed robbery and they are brought pursuant to s 97(1) of the Crimes Act 1900. Each of them carries a maximum penalty of 20 years imprisonment.
The third charge is a charge known as police pursuit, an offence contrary to s 51B(1) of the Crimes Act 1900 committed at Henty on 29 October 2013. That offence carries a maximum penalty of three years imprisonment and would be capable of being dealt with in the Local Court where the maximum penalty would be two years imprisonment.
The fourth charge is that on 29 October 2013 at Lavington he wounded the named victim with intent to prevent lawful arrest. That is an offence contrary to s 33(2)(a) of the Crimes Act 1900 which carries a maximum penalty of 25 years imprisonment and has a standard non-parole period of seven years.
When sentencing him for that offence, the offender asks that I take into account three offences on a Form 1 document signed by him and tendered on sentence. Those three offences are one of common assault occurring at Orange on 28 October 2013, one of larceny of a computer also occurring on that date in Orange, and a further offence of larceny also occurring at Orange on 28 October 2013.
The fifth charge is one that on 29 October 2013 at Lavington he threatened to injure the named victim with the intention of preventing his lawful apprehension. That offence is contrary to s 33(1)(b) of the Crimes Act1900 and carries a maximum penalty of 12 years imprisonment. That is also an offence capable of being dealt with in the Local Court where the maximum penalty would be two years imprisonment.
There are agreed facts before the Court. The background to this slew of criminal offending is that the offender had been released to parole on 30 September 2013 after serving a term of imprisonment for a number of offences including a carjacking offence. He had been in prison for these offences from 1 July 2012 and was meant to be in the community on parole for 21 months from 30 September 2013.
The offender is, as will become clear later in these reasons, a person of low intellectual capacity, diagnosed by a psychologist as suffering mild intellectual disability with an IQ score of 60 and with the cognitive reasoning function of a child between seven and eight.
The Public Guardian had been appointed to manage his affairs on 9 October 2012, I infer because of his low intellectual capacity.
After his release to parole, accommodation was arranged for him by the Department of Ageing, Disability and Home Care in supported accommodation in Orange. He was living there on 28 October 2013 with other residents having similar difficulties.
The offender’s stepfather gave evidence on sentence. I found his evidence to be very useful in understanding the offender’s background. He was living with the offender’s mother in country Victoria when the offender was released to parole. He had had a good relationship with the offender, having met him when the offender was about nine and he had tried to help him in the past. The offender looked up to him and regarded him as his father.
The stepfather and the offender’s mother were not able to see the offender in Orange between when he was released to parole and when he committed these offences. There had been some attempts to arrange a halfway meeting with the assistance of authorities but that never happened. All parties, I accept, were quite disappointed about that. He did, however, speak to the offender on the phone and became aware that the offender was in contact on the phone with his sister and her boyfriend and that the offender had formed a view that he should go to see them in Shepparton. That of course, he realised, would have been in breach of his parole.
The offender told his stepfather that his sister’s boyfriend told him to steal a car and this person in Shepparton promised him money and a girlfriend if he came down. His stepfather advised him not to do it, that is, not to risk breaching his parole, but the offender, I accept, was under pressure from his sister and her boyfriend to come to see them and, I accept, was inclined to breach his parole, not acting sensibly in part because of his low intellectual ability.
With this background then on 28 October 2013, I accept that the offender had been drinking heavily and was intoxicated. He got into a verbal and physical altercation with another resident of the supported accommodation. The other resident provoked by offender by swearing at him and using a racist slur. The offender went into his room and hit this resident a couple of times with a closed fist. This is the assault which is the first of the form 1 offences.
Support workers at the boarding house intervened and called the police to report it. The offender went to collect his belongings to leave and packed a staff member’s laptop while doing so. That is the second form 1 offence of larceny.
He rode his pushbike down to Woolworths and stole a 30 centimetre curved kitchen knife there which was worth $15. That is the third form 1 offence also of larceny.
At about 10 o’clock at night the victim of the first offence, the first armed robbery offence, drove into the Woolworths car park at Orange to do some grocery shopping. She locked her car and turned around and saw the offender about one and a half metres away from her. He pulled out the knife he had just stolen and held it at stomach height and said, “Give me your car, give me your keys, give me your car, give me your keys.” He walked towards her until he was about a half a metre away and she handed him the keys. He got straight into the car and drove off. He drove towards Wagga but crashed the car at West Wyalong. He left it there and got a lift into Wagga.
The next day at about 11am the victim of the second armed robbery went to the Sturt Mall in Wagga to do some shopping with her three year old daughter. She parked her car in the street, did some shopping and came out at about 11.30 with groceries in a trolley. She opened the rear tailgate door to the boot of her car and put her young child into the back who then started to help her to store the groceries. She put her handbag in the back of the station wagon and left her daughter in the car while she took the trolley back. When she returned she opened the back door and reached in to put her daughter into the child seat. The offender came up behind her and said, “Take the kid out of the car.” She turned around and saw that he had a knife at his hip and was holding out his other hand for the keys. She gave him the keys and took her daughter out of the car. The offender drove off with the car, including taking her shopping and her handbag. The victim noticed that the offender spoke to her in a direct but soft voice and seemed really desperate.
The offender then drove down the Olympic Highway towards Albury. I accept more probably than not that he was intending to drive to Shepparton.
Police had been notified about the offence and were keeping a lookout for him. They located the car travelling at speed between Henty and Culcairn. They signalled for him to stop but he sped up to speeds of about 190 kilometres an hour. Police initiated a pursuit but stopped it at one stage because it became dangerous.
They located the car again just north of Culcairn and started the police pursuit again. The offender travelled through Culcairn at speeds of 170 kilometres an hour in a 50 zone.
Police then next saw the car in Gerogery and reactivated the pursuit when the offender drove onto the Hume Highway. They set up road spikes on the Hume Highway. The offender was travelling at about 150 kilometres an hour.
At the interchange of the Olympic Highway and the Hume Highway, he crossed onto the northbound lane for a short distance, then back again into the southbound lane, but fortunately there was only light traffic in the area at that time.
When the offender approached the road spikes, he crossed onto the northbound lane to avoid them. He left the Hume Highway at Racecourse Road and abandoned the car at Boomerang Drive in Lavington.
The police officer victim of the fourth and fifth charges was a senior constable with the New South Wales Highway Patrol at the time. He located the offender in a street in Lavington. He told him to stop and the offender swore at him and jumped over a fence. He hid behind a shed in the backyard of the house.
The officer jumped over the fence to follow him and as he landed on the ground the offender came out from behind the shed armed with the kitchen knife he had stolen in Orange. He swung it at the officer a number of times in an aggressive motion. He said, “I am going to fucking kill you.” The officer tried to step back to avoid the knife but it connected with the outside of his upper arm and wounded him.
The wound was later treated at Albury Hospital and was found to be a 2 centimetre laceration to his left upper arm which was 5 centimetres deep, penetrating into the deep dermis. It ultimately required two stitches and antibiotic treatment. These are the facts for the fourth offence of wounding the officer with intent to prevent lawful arrest.
After this happened, the officer drew his service firearm and pointed it at the offender and told him to get on the ground. When that occurred, the offender held the knife to his own throat and walked backwards and jumped over another fence. The officer started to climb the fence to follow him and the offender swung the knife towards his torso and arms in a ripping motion. The officer pushed himself back off the fence and narrowly avoided being struck by the knife a second time.
The offender then jumped another fence to get away from the officer who also jumped over a fence and followed him. He located the offender behind a garage and the offender then came out from there and pointed the knife at him. Again the officer drew his firearm and pointed it at the offender and again the offender put the knife to his own throat and took a couple of steps back to the garage.
The officer removed his capsicum spray and told the offender to put down the knife. The offender went into the garage and closed the roller door. The officer re‑holstered his firearm and opened the roller door. The offender ran out of the garage and down the driveway.
The officer followed him through a number of yards before stopping near a boundary offence. The offender swung the knife in a figure of eight motion towards the officer who drew his firearm again and told the offender to drop the knife, which the offender refused to do. The officer sprayed capsicum spray at him again which connected with his left cheek and eye and caused him to drop his head down to protect himself. The offender covered his eyes and nose with a T-shirt and continued to swing the knife.
The offender was sprayed again and it started to burn his eyes. He asked for some water. The officer said that he would help him but he had to throw the knife away. The offender refused and continued to swing the knife in front of him whilst continuing to wipe his eyes and walk towards the officer. He was only taking small steps because of the effect of the capsicum spray on him and the officer sprayed him again and told him to drop the knife. The offender then threw the knife into a garden bed and the officer took him to the ground.
The officer asked the offender, “Why are you doing this?” to which he replied, “Because I breached my parole.”
There was a short struggle but the offender handcuffed the offender with some assistance from a bystander. Police and ambulance arrived. As I said, the officer was taken to Albury Hospital for treatment to his left arm wound and the offender was treated for capsicum spray exposure and taken to Albury Police Station. He participated there in an electronically recorded interview during which he admitted to having committed the offences and was charged.
He has been in custody ever since. This custody has been for two reasons. First, he was refused bail in relation to these charges. Also his parole was revoked by the Parole Board on 31 October 2013 and he was ordered to serve the balance of his parole which is due to expire on 1 July 2015.
Clearly enough, having recited those facts, which are agreed between the parties, these are all very serious offences. The first two offences are armed robbery offences which almost, by definition, are very serious offences, particularly as they attract a maximum penalty of 20 years imprisonment.
In each case the offender was armed with a knife. There is no evidence, however, that he acted aggressively towards either of the two women, in fact for the second offence, the victim thought that he seemed desperate. There was no actual violence, nor threats of violence employed by him.
The second robbery which occurred in Wagga is aggravated to an extent because the victim’s child was present and that must have increased her sense of fear. However, there is no evidence nor suggestion that the offender directed any aggression nor comments at all towards this child.
There was no real planning for either of these two offences except to the extent that the offender had stolen a knife and taken it with him, but the evidence suggests, in my view, that the choice of victim for each of these two offences was spontaneous.
There is no victim impact statement from either of these two women but I accept that each of them must have been very frightened and shocked by being confronted in this way by the offender. It would not be surprising if they still have some psychological consequences and particularly so for the victim whose child was present when the offence occurred.
Both of these offences are also aggravated by the fact that the offender was on parole at the time and in fact had only been released to parole about a month before the offences occurred.
The guideline judgment in the New South Wales Court of Criminal Appeal of Henry & Ors suggests as a guideline, an overall sentence for armed robbery offences with certain characteristics, of between four and five years. Some of those characteristics are present in this case, namely he was a young offender, he was armed with a knife, there was limited or no planning and there was no actual violence.
There are also some dissimilarities, some of which assist the offender and some of which do not. One which assists him is that he entered an early plea of guilty, a dissimilarity with the Henry guideline judgment. Another dissimilarity which does not assist him is that although he was a young offender, he has a very lengthy criminal history.
It is a guideline, however, which I will take into account and bear in mind when assessing the appropriate sentences for each of these offences. They seem to me to be offences in terms of objective seriousness which are around the middle or a little lower for offences capable of being charged as armed robberies.
As for the police pursuit, it was a very dangerous course of driving that the offender embarked on, both for himself, the police and potentially other road users. The police had to stop the pursuit at least twice because the conditions became dangerous. If he had been thinking straight or had been capable of thinking straight, he would have known and must have recognised that he was going to be caught and he should have just stopped.
It is a serious example of a police pursuit given the distance travelled, the length of time, the speeds that he reached. It is an inherent part of such an offence that it indicates a disregard for public safety.
I do not accept, however, that the evidence allows for a finding that the offending involved a grave risk of death to another person or persons. The police appropriately called the pursuit off when it became too dangerous, and even though the offender crossed onto the wrong side of the road, according to the evidence, twice, the only evidence there is about the conditions at the time was that the traffic was light.
The potential for harm, however, including the police and other road users was very high and that is one of the reasons why this is a very serious example of a police pursuit. The circumstances of this offence mean that only full‑time imprisonment is appropriate and that a significant sentence should apply.
The objective seriousness of the remaining two offences involving the police officer is also high. The offender used a knife to cause the wounding and to threaten injury. That aggravates the offence. Fortunately, the wound in this case was relatively minor, as I have said, involving the 2 centimetre laceration to the outside of the officer’s upper left forearm which required two stitches and a course of antibiotics. There is no evidence about any ongoing physical consequences of this wound and I accept it is likely that it has healed.
The offences were not planned or premeditated by the offender. He was on the run, fearful of the consequences of breaching his parole following the altercation at the boarding house in Orange, making matters infinitely worse by committing the two armed robberies and trying to get to Shepparton and doing all of this in a way which did not suggest any form of planning or real thought at all and which was in reality very much consistent with his limited cognitive abilities and lack of ability to make proper reasoned judgments.
Again I do not accept that there is evidence for either of these two offences from which I could make a finding that in fact there was grave risk of death to any person. The very restrained actions of the officer in drawing but not in fact discharging his firearm on three occasions would tend to suggest that whilst he was in fear at the time, he did not himself fear that he was at grave risk of death. Clearly enough, by brandishing and waving a knife around in the direction of the officer, and on occasions when the officer had to jump out of the way to avoid being cut again means that the situation was dangerous and there was a significant risk of further harm to him. There is nothing in the evidence, however, which would enable a finding that there was a grave risk of death to him or any other person.
One aspect I must consider in relation to these two offences is the impact of the offences on the victim. I have received and considered a victim impact statement from this victim as provided for in s 28 of the Crimes (Sentencing Procedure) Act 1999. That statement was compiled by the victim himself and unfortunately there was much in that statement that falls outside the definition of a victim impact statement, namely a statement that contains particulars of the harm suffered by the victim as a result of the offences. Some of that material was edited from the original document by agreement between the Crown and counsel for the offender. The solicitor for the Crown further, on the hearing of the sentence, agreed that other parts could not be relied on.

Unfortunately, the document that was tendered was the original with the edited parts still present but highlighted in a way that could still be seen and read. This, in my view, is not an appropriate way in which to tender an admissible victim impact statement to a court, and both parties in this sentence should have ensured that an admissible document was tendered.
Further, there is no evidence, apart from what is in the victim impact statement, to establish the actual circumstances of this victim. I accept that he has suffered as a result of these offences. Physical injuries as previously found were relatively minor and there is no evidence tendered in relation to that wound. It is not the type of injury which is likely to have had ongoing physical consequences.
There is, from these offences and the circumstances in which they were committed, likely to have been a considerable emotional and psychological impact on the officer, particularly, it seems to me, once he started to think back about what happened and to ruminate over the potential consequences, not only to him physically but also if in fact he had discharged his firearm. It would be likely that he would continue to suffer psychological consequences as a result of these offences and that they would be ongoing, and I consider that to be a likely event. There is, however, no evidence in fact to establish the extent of any such psychological condition.
I do accept from the victim impact statement that there has been an impact on his life in other ways, including that he has been restricted to light duties in the police service since these offences, and that this had a knock‑on effect of preventing him continuing his work as a fire fighter which he had previously done for 20 years.
These changes to his work conditions have also had a negative impact on his financial position, which in turn negatively impacts on his sense of wellbeing and self-esteem. It is clear from the victim impact statement that the victim is very angry about the impact that these offences have had on him, not just with the offender, but also with the authorities.
The impact on this officer of these offences are indeed considerable, but there is no evidence from which I could make a finding the injury, emotional harm, loss or damage caused by the offences was substantial. It is to be hoped that the conclusion of these sentence proceedings will see the beginning of a full healing process for the victim. He may well be dissatisfied with the sentence outcome. That is often the situation seen in these courts. But of course, the situation of the victim in any sentencing process is only one factor to be taken into account and where there is no actual evidence presented in relation to the impact on this victim of these offences, the extent to which that situation can be examined is limited.
As I said, for all of these offences they are aggravated by the fact the offender was on parole at the time.
I now turn to assess the situation of the offender himself which of course is also an essential matter to be taken into account when setting any sentence.
He is now 21, thus still a young man. He has a very lengthy criminal history for one so young. He comes from an extremely dysfunctional and deprived background. There has been a very large body of medical and psychological reports tendered on his behalf going back as far as 1998.
They all make it clear that he was raised as a young child in a household exposed to violence and drug abuse by his father. His father is a serious criminal now serving a 35 year non-parole period in Victoria for the rape and murder of two New South Wales schoolgirls. Those offences occurred when the offender was four. He is not here, however, to be sentenced for the sins of his father, but the sins of the father have, to an extent, shaped who he has become. For many years after this notorious offence, the offender and other members of his family were bullied and discriminated against in the various communities to which they moved because of his father’s notoriety.
His mother formed a relationship with another person who became his first stepfather. This person was violent towards his mother and also was convicted of manslaughter involving the shaking death of his own child. This offender was living in that environment when he was eight. More probably than not, this person also assaulted the offender and his sister.
The bullying by community members meant that the offender’s mother moved the family frequently. They lived in many regional towns including Goulburn, Yass, Leeton, Whitton, Coleambally, Colac, Singleton, Forbes, Parkes and Orange.
He attended many schools, which of course is very disruptive to any child, even if of robust nature and sound intellectual ability. Unfortunately, this offender is neither of those two.
He was diagnosed with ADHD from the age of about three and treated with various forms of medication at least from the age of about four and a half. The frequent moves meant that his presentation for treatment was often sporadic and not always consistent. He was diagnosed with a learning disability and placed in a special education system.
His mother formed a new relationship with his now stepfather, who gave evidence as I said. That relationship started in 2002 when the offender was nine. That is a positive relationship, and as I have said, I found this man’s evidence helpful and realistic.
The offender has had a positive relationship with this man, but by the time he came into the offender’s life it was probably too late to undo some of the damage which had already been done by the disruption and dysfunction that had already occurred.
He has a diagnosed intellectual disability and mental disorder. As I said previously, he was diagnosed with ADHD as a very young boy and he has been medicated for it and continues to be medicated for it.
He was assessed by forensic psychologist Dr Susan Hayes at Long Bay on 29 March 2013 in relation to the earlier sentence. She found that his cognitive functioning was at a level lower than 99.6% of his peers with an IQ score of 60. Whilst he was able to move around the community fairly independently, it is the case that his affairs were being managed by the Public Guardian at the time he committed these offences, and I accept her opinion that he had serious deficits in all of the activities of daily living.
Whilst she diagnosed this as a mild intellectual impairment, that does not denote that his intellectual deficits are minor. That is a method of classifying intellectual impairments and must be read together with the further explanations in Dr Hayes’ report, specifically that he functions at a cognitive reasoning age of between seven years nine months and eight years three months.
There is also evidence from Dr Ruth Allen, forensic psychologist at Long Bay, from an assessment she undertook on 6 January this year, who offers the unchallenged opinion that his abusive and chaotic family background meant that he did not receive the guidance, consistency and protection that he required growing up. This I accept has meant that he has a tendency to assume hostile intent in others and together with the ADHD means that he will be inclined to respond impulsively to threats or emotional harm directed at him by others.
Also Dr Furst, forensic psychiatrist, assessed him at Long Bay on 2 April this year. He discovered him to have limited insight presenting as immature and impulsive. Dr Furst’s opinion is that he suffers from a number of defined psychiatric disorders including anxiety and depression, ADHD, and together with his diagnosed intellectual disability, in Dr Furst’s view, gives rise to psychiatric problems that relate to his intellectual disability, and associated impulsivity gives rise to poor emotional control and poor decision making.
I accept Dr Furst’s opinion that these factors probably contributed to the poor decision making evidenced by his commission of these offences in October 2013. In fact, the offender’s stepfather in his evidence summed it up that in his opinion the offender was a boy in a man’s body.
Whilst of course it may be of small comfort to the victims, nevertheless it is the case that this man’s mental condition was in part responsible for the fact that he committed these offences and in those circumstances considerations of general deterrence play a lesser role than if he were not a person suffering from a mental condition. It is not completely removed and the sentences should, to some extent, convey a message to the community that serious offences such as these, particularly offences committed against law enforcement officers, will always attract full-time imprisonment for relatively lengthy periods.
There are other considerations that I must take into account, however, when setting the appropriate sentences, including the need to protect the community from this offender, and also for the sentence to give some consideration to issues of specific deterrence.
He is, as I have said, still very young, and for young offenders, considerations of rehabilitation would normally be given considerable weight and possibly greater weight than some other considerations. However, he comes to court with a very lengthy criminal record for a person so young.
It is tendered to court. He has a criminal history both here and in Victoria. His New South Wales history commenced in the Children’s Court in 2007. The details of it are before the Court as tendered. He has numerous convictions for offences, including offences of violence and other offences.
In terms of assessing his prospects of rehabilitation, it is of concern that the offence for which he was on parole at the time he committed these offences is very similar, a carjacking offence. He had only been released on 30 September and these offences occurred a month later. His prospects of rehabilitation are at best guarded in the circumstances. He has, however, I accept, expressed contrition and remorse to Dr Allen and Dr Furst, and in particular I accept he has shown insight into the plight of the victims of his offences, especially the woman whose child was in the car that he stole.
He has undertaken some courses in custody and there are certificates tendered indicating that he had completed those. He is proud that he finished those and it is some proof of attempts that he has made towards his own rehabilitation. That is unfortunately tempered by the fact that he has also committed some institutional offences whilst in custody. He has been housed in five different parts of the New South Wales prison system since his arrest in October 2013.
Whatever are his real prospects of rehabilitation, he will need considerable supervision when he is released to the community on parole. There is a proposal tendered on his behalf that he attend a residential rehabilitation centre in Hawkesbury. There is a report from that institution which appears an appropriate place for him to go and such a residential placement would seem desirable. Whether or not it remains available at a time when he is due to be released on parole time will tell. It only commenced in November last year. He will need that sort of supervision, however, and supervision for relatively lengthy period of time to prevent the prospect of further offending.
I then turn to consider what is the appropriate sentence for each of these offences. Each one of them should have a separate sentence attached. The decision of the High Court in Pearce’s case makes that so.
I will deal first of all with the police pursuit offence because it has the lowest maximum penalty. It is a serious example of this offence, but for this, as for all of the other offences, his mental condition must be considered both including the impact it played on his commission of the offence, but also because it reduces the extent to which general deterrence plays a part in the sentence.
Taking into account the early plea of guilty and the discount available, I will be imposing a prison term of 12 months for that offence.
On the findings that I have made in relation to the two armed robbery offences including their similarities and dissimilarities with the Henry guideline judgments, but taking into account the offender’s mental condition and the fact of an early plea of guilty, each, it seems to me, should have an overall term of imprisonment of two and a half years. I will, if necessary, deal with the issue of a non-parole period in due course.
For the wound with intent to avoid arrest, this is the most serious offence and there are also three additional offences that I must take into account as form 1 offences.
The two larceny offences are of relatively minor severity and would not, in my view, increase the overall criminality of the substantive offence.
The assault offence is a matter which normally should be given some weight or treated in a realistic way as an additional offence. But in circumstances in which it occurred in which there was some provocation and also where I am not informed of any further detail about anything that might have been suffered by the victim, in my view that should not increase the overall sentence for the substantive offence either.
The substantive offence is itself a very serious offence and I must bear in mind that there is a standard non-parole period of seven years for offences committed under this section, sentenced under this section. Because there is a plea of guilty, that would not strictly apply. Further, the offence itself, for the reasons I have already stated, is in the bottom range of offences capable of being charged under this section. Nevertheless, the standard non-parole period is a factor I bear in mind.
It seems to me in those circumstances and bearing in mind the offender’s mental condition and the other factors to which I have already alluded, and taking into account the early plea of guilty, the appropriate sentence for that offence is an overall penalty of five years imprisonment.
There are special circumstances. There will be some partial accumulation. His mental condition is a factor and there is a need for a longer than normal period of supervision in the community. I will be setting a non‑parole period for that offence of three years.
The remaining offence is, as I said, capable of being dealt with in the Local Court. It is a serious offence. Taking into account the circumstances of the offending and the condition of the offender, however, it seems to me, after taking into account the early plea of guilty, a term of imprisonment of two years and three months is called for.
The issue then arises about the accumulation and concurrency of each of these five sentences. If each of these sentences were entirely accumulated, it would give rise to an overall sentence of 24 years. That is significantly excessive in the circumstances of the offender and the offending, in my view, particularly given his youth, his background and the need to ensure that there is an attainment or goal for him, also bearing in mind his intellectual disability.
I have concluded that there should be an overall term of imprisonment of eight years with an overall non-period of five years. I will be giving effect to that by imposing fixed terms for all but the wound with intent offence.
The issue then arises of when this group of sentences should commence. His balance of parole ends on 1 July 2015. He has effectively either served or been ordered to serve all but one month of the earlier sentence, most of it after revocation of parole and most of it serving balance of parole. The fact that his parole was revoked is because he committed these offences. In those circumstances there should be some partial accumulation of that balance of parole with these sentences. I propose to backdate these sentences nine months from today to take that into account. These sentences will commence on 18 September 2014.
My formal orders then are that for each of the offences the offender is convicted.
For each of the offences the offender is convicted. For sequence 7, the police pursuit offence, he is sentenced to a fixed term of imprisonment of 12 months commencing 18 September 2014 and expiring 17 September 2015.
For sequence 6, threaten injury to prevent lawful apprehension, he is sentenced to a fixed term of imprisonment of two years and three months commencing 18 March 2015 and expiring 17 June 2017.
For the first armed robbery offence, sequence 4, he is sentenced to a fixed term of imprisonment of two years and six months commencing 18 September 2015, expiring 17 March 2018.
For the second armed robbery offence, sequence 5, he is sentenced to a fixed term of imprisonment of two years and six months commencing 18 March 2016, expiring 17 September 2018.
For the remaining offence, sequence 11, wound with intent to prevent arrest, he is sentenced to a non-parole period of three years commencing 18 September 2017, expiring 17 September 2020, with parole thereafter of two years commencing 18 September 2020, expiring 17 September 2022, giving rise to an overall term of imprisonment of five years commencing 18 September 2017, expiring 17 September 2022.
I recommend that he be released to parole at the expiration of that non‑parole period and that that parole will be subject to supervision by Probation and Parole for the entirety of the parole with consideration to referral to a residential rehabilitation programme specifically aimed at dealing with people with intellectual disabilities.
I indicate that I have taken into account three form 1 offences when sentencing on sequence 1.
And the intention is that the sentence starts - the non‑parole period in effect starts on 18 September last year and expires on - I might’ve got the maths wrong. Well rather than doing it in court, my intention is that to be a combination of sentences that gives rise to five years non-parole with three years on parole, overall eight years. All of the first four offences will be fixed terms in the periods that I announced and it may be that I need to adjust the remaining sentence to give effect to that overall intention, but that’s what I will do. Rather than sitting in court doing this and not being able to do the other matters in the list, we can all work it out amongst us.
In announcing the relevant dates for the sentences it became clear that my intention of an overall non-parole period of five years with an overall period of imprisonment of eight years, thus with three years on parole, was not capable of occurring in circumstances where the non-parole period previously announced of three years for the most serious offence was fixed. This is as a result purely of the mathematical issues that arise in circumstances of partial accumulation.
I have found special circumstances. On the basis of those special circumstances, but in large part to give effect to my overall intention, I will fix a non-parole period of two years for that substantive offence with parole of three years. That will give rise to an overall non-period once the partially accumulated fixed terms are added.
For those reasons then, these are the formal orders:
The offender is convicted. For the police pursuit charge, as I have said, sentenced to 12 months fixed term from 18 September 2014 to 17 September 2015.
For the threaten injury to avoid apprehension charge, two years and three months from 18 March 2015 to 17 June 2017.
For the first armed robbery charge, two years and six months commencing 18 September 2015, expiring 17 March 2018.
For the second armed robbery charge, two and a half years, fixed term 18 March 2016 to 17 September 2018.
For sequence 11, wound with intent to prevent arrest, non-parole period of two years commencing 18 September 2017, expiring 17 September 2019, with parole thereafter of three years, 18 September 2019, expiring 17 September 2022, giving rise to an overall term of imprisonment of five years, 18 September 2017 to 17 September 2022.

I repeat what I said. I recommend that he be released to parole at the expiration of the non-parole period, to be subject to supervision from Probation and Parole Service with referral if possible to a residential unit specifically dealing with intellectually disabled people.

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Decision last updated: 23 November 2016

Medium Neutral Citation:	R v Ethan Lindsay Beckett [2015] NSWDC 416
Date of orders:	18 June 2015
Decision date:	18 June 2015
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	See orders [110] –[115]
Catchwords:	CRIMINAL LAW – sentencing – 2 armed robbery charges, car-jacking – police pursuit – further charge of wounding police victim with intent to prevent lawful arrest – common assault and larceny on Form 1 – on parole for similar offences – offender very low intellectual capacity – extremely dysfunctional and deprived upbringing, son of Bega schoolgirls killer – bullied by local communities and forced to move as a child – Henry guideline case discussed – special circumstances – need for considerable supervision – discussion re inadmissible portions of Victim Impact Statement
Legislation Cited:	Crimes Act 1900 ss 33(1)(b), 33(2)(a), 51B(1), 97(1) Crimes (Sentencing Procedure) Act 1999 s 28
Cases Cited:	R v Henry & Ors [1999] NSWCCA 111; 46 NSWLR 346
Category:	Sentence
Parties:	Director of Public Prosecutions Ethan Lindsay Beckett (Offender)
Representation:	Mr Henshaw (DPP) Ms Mendes (Offender)
File Number(s):	2013/326645
Publication restriction:	Nil