R v Beldon [2011] NSWSC 112 (4 March 2011)

Supreme Court New South Wales

Case Title:	R v Beldon
Medium Neutral Citation:	[2011] NSWSC 112
Hearing Date(s):	22/2/11, 23/2/11 and 25/2/11
Decision Date:	04 March 2011
Jurisdiction:
Before:	Acting Justice Barr
Decision:	Set a non-parole period of 16 years, which will be taken to have commenced on 28 November 2008 and which will expire on 27 November 2024. The balance of the term will be eight years, expiring on 27 November 2032. Offender eligible for parole on 27 November 2024.
Catchwords:
Legislation Cited:
Cases Cited:
Texts Cited:
Category:	Sentence
Parties:	Regina (Crown) Reece Leonard Beldon (Accused)
Representation
- Counsel:	Counsel: P Cattini (Crown) T R Hoyle (Accused)
- Solicitors:	Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid Commission of NSW (Accused)
File number(s):	2008/69063
Publication Restriction:

REMARKS ON SENTENCE

1. The offender, Reece Leonard Beldon, has pleaded guilty to the murder on 28 November 2008 at Mangerton of Stephen Solomon.

2. The offender lived in a unit on the second storey of a three storey building at Mangerton. Darren Vickery was staying with him. The deceased, Stephen Solomon, was staying in a unit directly above the offender's unit. On the morning of 27 November 2008 the offender and Vickery went to the unit where the deceased was staying and spoke to him. The three left together and the offender arranged for the deceased to see a doctor at Fairy Meadow. The deceased saw the doctor and obtained a prescription for Oxycontin and Valium. He went to a pharmacy and he or the offender telephoned Vickery, who went to the pharmacy and paid for the drugs. All three returned to the offender's unit where they injected Oxycontin and took Valium. That was at some time after 5:00pm. They repeated the procedure later in the evening.

3. During the night the deceased repeatedly tried to telephone his de facto wife, who resided in Queensland. The last recorded call was made at 1:55am on 28 November. At about that time the occupant of another unit saw him outside the building using a telephone. The deceased returned to the offender's unit and there was an argument between him and the offender. He accused the offender of stealing the remainder of the drugs and demanded that the offender give him some of his own prescription Oxycontin. The offender took a kitchen knife approximately 30cm long and slashed the deceased's right cheek, leaving a deep incision. He stabbed the deceased in the left upper back. The deceased took a few steps and fell to the floor.

4. Vickery telephoned the emergency number at 2:55am and asked for an ambulance. Ambulance officers attended. The deceased was lying on his back where he had fallen. He was dead. Police arrived at about 3:10am. The offender and Vickery were present. Police officers spoke to the offender. He had dried blood on his hands, feet, and clothes.

5. A pathologist examined the deceased's body and concluded that the cause of death was a stab wound to the back of the torso. The wound track was from rear to front and slightly left to right. There was an associated underlying injury to the aorta and both the left chest and abdominal cavities were involved. The wound track was 16 to 17cm long.

6. The offender was charged with the murder of the deceased. Vickery was charged as an accessory after the fact of murder. That charge, I think, was based on events said to have happened during the time between the stabbing and the telephone call. Both were committed to this court for trial. On 4 December 2009 the offender pleaded not guilty and a joint trial was fixed to begin on 6 April 2010. On that day an order was made for separate trials. Vickery pleaded guilty and the offender's trial was vacated. A new trial was fixed to begin on 11 October 2010. Vickery was sentenced on 15 April 2010. The Crown was ready to begin the offender's trial on 11 October 2010 but the defence was not, and the trial was vacated. A new trial date was fixed, beginning on 21 February 2011. The estimated hearing time was three weeks. At the commencement of his trial, on 22 February 2011, the offender pleaded guilty.

7. So seen, the offender's plea of guilty was late. Counsel submitted, and I accept, that one consequence of the plea was that three weeks of trial were obviated and some 40 witnesses saved the time, expense and trouble of giving evidence, including a number of experts and at least one witness from interstate. That has to be seen against the tortuous path the case took in this court before the plea of guilty emerged. The offender is entitled to consideration for the utilitarian value of his plea of guilty, but I rate it at the bottom of the range normally allowed.

8. Mr Hoyle of Senior Counsel, for the offender, acknowledged that the plea was offered in the face of a strong Crown case, but went on to submit that the case depended on the evidence of Vickery, whom the Crown intended to call. A number of inconsistencies were pointed to in accounts Vickery had given from time to time. Although the Crown case remained strong, it was not as strong as it would have been if Vickery's accounts had been consistent. I did not understand the Crown to demur.

9. Mr Hoyle submitted that the plea evidenced the offender's consciousness that he was at fault. That must be so. However, Mr Hoyle also submitted, in view of Vickery's inconsistent accounts, that the court should regard the plea as reflecting to some extent the offender's shame and contrition. Given Mr Hoyle's acceptance that the Crown case remained strong, the lateness of the plea and the fact that there is no other evidence expressing or implying the offender's shame or contrition, I am not prepared to accept that submission.

10. The evidence shows that both the offender and the deceased were affected by the drugs they had consumed. Samples taken from the deceased's body show a level of Oxycodone sufficient to cause lethargy and mental clouding. There is no such evidence about the offender, but I am prepared to accept that he and the deceased probably consumed drugs at about the same rate during the hours immediately before the murder and that as a result the offender's thinking was probably clouded and his judgment and self-control affected.

11. It was submitted that in the circumstances the deceased's accusation that the offender had stolen his drugs and should make restitution was akin to provocation and mitigated the offender's criminality.

12. I can understand that a person falsely accused of theft might, out of indignation or outrage, act as he might not otherwise act, especially with clouded judgment and loss of self-control. But the evidence does not establish that the deceased's accusation was false. I do not think that the offender could point to his overreaction to a just accusation as mitigating his criminality. On the state of the evidence, I am unable to accept the submission.

13. In seizing the knife and cutting and stabbing the deceased, the offender acted in response to the words that the deceased had spoken and in the heat of the moment. There was no premeditation.

14. I do not regard the fact that the offender's acts resulted from the effect of drugs on his judgment and self control as mitigating his criminality. He voluntarily took the drugs and must accept the consequences.

15. I accept that the deceased intended to inflict grievous bodily harm, that is, really serious bodily injury, and that there was no intent to kill.

16. The offender was 34 years old at the time of the offence and is now 36 years old. He never met his mother or father and was brought up by an aunt. There may be a history of mental illness in the family. He witnessed a lot of violence during his formative years. He was raped when he was 11 years old. He left school in year 8 and has done various jobs. He has had a number of sexual relationships, the most recent one of eight years' duration. He has a son.

17. The offender has a long history of drug use, mental instability and offending. A report of Dr Jonathon Adams, forensic psychiatrist, was tendered. He interviewed the offender on 19 January 2011. The offender described to Dr Adams his contact with mental health services and symptoms he had experienced since his early 20s. He gave accounts of hearing voices, some scary, bad and dark, others beautiful, according to his mood. He described a man or group he thought were out to get him. He described odd smells and tastes, paranoia over a long period of years and referential thinking towards the television. He thought at one time that he was an alien female. He experienced sweating, tremor and anxious thoughts. He gave a history of mood instability since childhood, impaired ability to control his mood and impulsiveness. He said that he had made five suicide attempts in various ways. He had harmed himself.

18. Describing his mental state during the time leading up to his arrest, the offender said that he was taking prescribed Oxycontin and adding more, illicitly obtained, as well as five bongs of cannabis per day. He was unsure about other drugs. He could not think straight. He was hearing voices and experiencing other symptoms of mental illness that he could not clearly describe. He said that his friends had told him that he was paranoid, though he himself seemed unable to remember.

19. Dr Adams had seen a videotape of the offender's interview with investigating police officers and asked him why he had denied being intoxicated at the time. The offender replied that he had done so on Vickery's advice so that the Oxycontin prescription would not be terminated. He said that he was hearing voices during the police interview, and when Dr Adams said that that was not how he appeared, he said that he was trying to keep a straight face.

20. Throughout the greater part of his interview with Dr Adams the offender maintained limited eye contract. He was slightly drowsy at times. He was not hostile. During the last ten minutes of the interview he became suspicious and asked whether Dr Adams was involved in a recent transfer of the offender from one gaol to another. When Dr Adams asked why, he said that "James" had told him. He would not enlarge on that statement. He did not appear to Dr Adams to be responding to external stimuli. His speech seemed to lack spontaneity. His voice was low and sometimes slurred. There was no evidence of formal thought disorder. The offender said that he believed that psychotic medication and the assistance of the mental health services had been beneficial.

21. Dr Adams reviewed reports of other psychiatrists who had had the care of the offender, namely Dr Sinclair and Professor Greenberg. Both had described psychotic symptoms and disorder, though in different particularities. Dr Adams also reviewed the offender's Justice Health medical records.

22. The offender's first contact with the mental health services was when he was admitted to a psychiatric hospital at Shellharbour in his 20s. He was admitted to that hospital twice more, but had very little contact with the mental health services between admissions. He was prescribed Olanzapine and Quetiapine, antipsychotics, and antidepressants. When not in hospital he generally failed to comply with medical advice to take drugs.

23. The offender has used illegal drugs over most of his life, beginning at age 6 or 7 years with cannabis. He progressed to hallucinogenic drugs and began using heroin when he was 25 years old. He consumed alcohol as well. In 2006 his general practitioner placed him on a gradually reducing dose of Oxycontin. So he ended his use of heroin.

24. The offender has a long criminal record. He was first dealt with in the Children's Court for stealing and kindred offences. He was first sentenced to imprisonment when in 1994 the Local Court imposed a term of 3 months for robbery. Since then he has been sentenced about eight times for stealing, assaults, contravening apprehended domestic violence orders and malicious wounding. He spent about one-half of the time between 1994 and 2007 in gaol. For a good deal of the other half he was on parole. Until the commission of this offence he had been in the community for almost two years. The latest sentenced expired on 31 January 2008, some ten months before he committed this offence. It does not appear whether he was employed during that time.

25. Mr Hoyle submitted that the need to impose a sentence having a generally deterrent effect was tempered by the offender's underlying mental condition. That condition is best understood by reference to Dr Adams' report. Having reviewed the reports and records I have mentioned, Dr Adams concluded:

The psychiatric history provided by Mr Beldon was suggestive of his suffering longstanding psychotic symptomatology in the form of perceptual abnormalities (auditory, visual and possibly olfactory and gustatory hallucinations), persecutory ideas, referential thinking, thought interference, and passivity phenomena. Mr Beldon was unable, however, to describe this phenomenology in detail and I was unsure as to the exact chronology from his description. Mr Beldon gave an account of significant mood state stages, with sustained periods suggestive of depression and elation. Alongside this Mr Beldon noted a history of several suicide attempts and self-harming behaviour. Mr Beldon informed me that his psychiatric presentation necessitated his past admissions to psychiatric hospital and provision of psychiatric treatment, although denied partaking in regular Community Mental Health Service follow up.

Mr Beldon reported his longstanding illicit substance use history, commencing at an early age with cannabis and alcohol, progressing to periods of hallucinogenic substance use, stimulant use, and through to opioid use both orally and intravenously thereafter. In my opinion Mr Beldon's description of his illicit substance use during his 20s was in keeping with that of polysubstance dependence. Mr Beldon's description of his more recent illicit substance use, however, was less clear. His reported use of opioid medication - both prescribed and non-prescribed - and his use of cannabis was consistent, and in keeping with probable dependence, but his account of benzodiazepine and amphetamine use was less consistent.

...

From review of the Justice Health medical records provided, however, it is evident that from between 2005 and 2006 Mr Beldon manifested persistent psychotic symptomatology and mood state changes, which appeared to stabilise with regular review by Mental Health staff and gradually increasing doses of antipsychotic medication.

Although Mr Beldon was unable to provide an exact account of his mental state during the last two years of incarceration, his description was in keeping with that of an overall improvement. He described how since his incarceration his overall presentation had improved and his mood state stabilised. He described the gradual lessening in terms of frequency and intensity of auditory perceptual abnormalities and persecutory ideation, and noted the disappearance of referential thoughts, passivity phenomena, thought interference and grandiose thinking. This description appears to be broadly corroborated by review of the Justice Health medical record provided, although as noted, I am unaware as to his recent review by Mental Health Services. This stabilisation of mental state appears to have been set in the context of the gradually increasing dose of Quetiapine, and ongoing prescription of a mood stabiliser and antidepressant.

As illustrated above, at the time of my assessment Mr Beldon presented as reasonably calm and not overtly agitated, his facial expressions were restricted, and his affect blunted. His response style was vague and at times inconsistent, requiring several clarifying questions. Mr Beldon referred to the possibility of ongoing persecution by a "secret organisation" and "James" and also the possibility of ongoing auditory perceptual abnormalities. He denied experiencing any further features suggestive of psychosis. In my opinion Mr Beldon's presentation was in keeping with that of ongoing partially treated psychotic symptomatology.

With regards diagnostic possibilities, in my opinion Mr Beldon's history is in keeping with that of a psychotic disorder with prominent mood symptomatology, with the most likely diagnosis being one of schizoaffective disorder. I would also consider the differential diagnoses of schizophrenia with a comorbid affective illness, and also a bipolar disorder. In my opinion it is likely that Mr Beldon's longstanding history of illicit substance dependence has compounded his mental state presentation. From the information made available and the description given by Mr Beldon, it is apparent that Mr Beldon's mental state deterioration has been set on a background of his emotionally unstable personality structure.

26. It seems to me that the offender's troublesome repeated behavioural problems result when, released from supervision, he ceases taking prescribed medicine and symptoms of mental illness reappear. Whether or how his further use of illegal drugs exacerbates his symptoms may not matter. The pattern seems well established.

27. While I am prepared to accept that the offender's mental illness may slightly lessen the need for a deterrent sentence, it seems to me that the same consideration gives rise to a greater need to impose a sentence that protects the public from the prospect of further offences, such has been the readiness of the offender continually to re-offend. To my mind this latter consideration outweighs the former.

28. It was submitted that notwithstanding his serious history of offending, the offender had prospects of rehabilitation. Mr Hoyle pointed to records showing that the rates at which the offender had been punished for offences committed in custody had been lower during his latest incarceration than formerly. The record does show that over the years the offender has been dealt with many times for offences against gaol discipline and that he committed no infringement between 3 August 2009 and 26 April 2010. It seems possible that the offender may have begun to change his ways and that he may in the future begin to take responsibility for his actions. I note his statement to Dr Adams that he wishes to follow the medical advice he is offered, though one would not confidently predict success. The sentence I am obliged to impose is bound to incorporate a long non-parole period, and that will mean that by the time he is considered for parole the offender will be of a mature age and will have behind him a continuous period of supervision without, it is to be hoped, access to the drugs which have played such an important part of his life. I think that there is a slight prospect of rehabilitation.

29. It was submitted that the Court ought to find special circumstances justifying an increase in the parole period of the sentence and a corresponding reduction in the non-parole period. Looking at the offender's episodes of crime, imprisonment, parole, freedom and return to crime, it is easy to justify a much longer period of parole than in a normal case of this kind. However, the Court cannot for that reason increase a sentence beyond that which the offence itself warrants. Neither can the court impose a non-parole period lower than that which the case objectively calls for. As a result, the court's discretion is limited, though I intend to exercise it in favour of the offender.

30. The standard non-parole period of 20 years for murder is to be imposed for an offence that falls in the middle of the range of objective seriousness of such offences. In my opinion this offence falls below the middle of the range because the offence was carried out in the heat of the moment, because the offender intended to do really serious bodily injury rather than to kill and because he has pleaded guilty.

31. Having in mind the standard non-parole period and taking into account the matters I have mentioned, I think that the non-parole period should be 16 years. Taking into account the matters I have mentioned that justify a bias towards parole, I select a period of 8 years of eligibility for parole.

32. The offender has been in custody since his arrest on this charge on 28 November 2008. The sentence will commence on that day.

33. Reece Leonard Beldon, for the murder of Stephen Solomon I sentence you to imprisonment. I set a non-parole period of 16 years, which will be taken to have commenced on 28 November 2008 and which will expire on 27 November 2024. The balance of the term of your sentence will be eight years, expiring on 27 November 2032. You will become eligible for parole on 27 November 2024.

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