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Supreme Court 30 December 2020

R v Dufty; R v Tisdell

[2020] NSWSC 1920

Homicide

Citation: R v Dufty; R v Tisdell [2020] NSWSC 1920
Court: Supreme Court of New South Wales
Date: 30 December 2020
Judge: Cavanagh J

Background

In the early hours of Christmas Day 2018, two offenders attacked Tyron Beauchamp while he slept in a shed in Taree, New South Wales. The victim, aged 41, had recently been released from custody and had known the offenders for only about a week. Both offenders had consumed significant quantities of drugs and alcohol during the preceding evening.

The attack involved one offender striking the victim to the head with a metal breaker bar, fracturing his skull, while the other punched and kicked him. The victim was then placed in the boot of a car and driven to Yarratt State Forest, where he was dumped. Two days later, the offenders returned to the forest, mutilated the body by severing the victim's hands, and set fire to the remains. The severed hands were later thrown into the Manning River.

Both offenders were arrested in May 2019, initially denied involvement, and ultimately pleaded guilty to murder. The sentencing proceedings required the court to resolve a significant factual dispute about events inside the shed and whether the victim was alive when transported to the forest.

  • Whether disputed facts, resting largely on the evidence of a single witness (referred to as "Mr Jones"), could be established beyond reasonable doubt for the purposes of adverse findings against the offenders
  • How to apply the Murray direction (governing caution about single-witness testimony with reliability concerns) in a sentencing context
  • The objective seriousness of the offending and where it sat on the range for murder
  • Whether the offenders' deprived backgrounds attracted the Bugmy principles (requiring ongoing consideration of profound disadvantage as a mitigating factor)
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio
  • The appropriate discount for guilty pleas
  • Whether the principle of parity warranted equal sentences for both offenders

Decision

Disputed facts and witness reliability. The key factual dispute turned on whether the victim was still alive when he was transported to the forest. The court examined the evidence of Mr Jones, the sole Crown witness on the disputed matters, and considered his reliability carefully. Cavanagh J directed himself in accordance with R v Murray (1987) 11 NSWLR 12, which requires particular caution when a finding depends on the evidence of a single witness whose reliability is in question. Where the Crown could not establish disputed facts beyond reasonable doubt on Mr Jones's evidence alone, the court resolved those facts in the offenders' favour.

Objective seriousness. The court assessed the offending as serious, though below the most serious category of murders. The use of a metal bar to deliver a blow sufficient to fracture the skull, the dumping of a living or recently deceased victim in bushland, and the subsequent mutilation and burning of the body were all features that elevated the objective gravity of the offending. Both offenders were found to have played roles that, on balance, were of comparable culpability.

Subjective factors and Bugmy principles. Both offenders were young, had experienced significant disadvantage and deprivation, and entered pleas of guilty. Cavanagh J applied the principles from Bugmy v R (2013) 249 CLR 571, recognising that the effects of profound social disadvantage do not diminish over time and must be given ongoing weight in mitigation. The court acknowledged the remorse expressed by both offenders.

Parity and special circumstances. The court found that the offenders' objective criminality and subjective circumstances were sufficiently similar to warrant identical sentences. Special circumstances were found to exist, justifying an adjustment to the balance of term beyond the standard ratio, to allow for adequate supervision and rehabilitation on release. A 25% discount was applied to each sentence for the guilty pleas, reducing what would otherwise have been a head sentence of 23 years.

Orders Made

  • Darcy Dufty: sentenced to imprisonment with a non-parole period of 12 years and a balance of term of 5 years and 3 months, backdated to commence 8 May 2020, with first eligibility for release on 7 May 2032.
  • Andrue Tisdell: sentenced to imprisonment with a non-parole period of 12 years and a balance of term of 5 years and 3 months, backdated to commence 8 May 2019, with first eligibility for release on 7 May 2031.
  • Both offenders warned of the operation of the Crimes (High Risk Offenders) Act 2006 (NSW) pursuant to s 25C, with their solicitors directed to carry out that notification.

Key Takeaways

  • Where disputed sentencing facts rest entirely on a single witness of questionable reliability, the court applied the Murray direction as a self-direction, requiring careful scrutiny before making findings adverse to the offenders beyond reasonable doubt.
  • The standard of proof in sentencing remains important: adverse factual findings against offenders require proof beyond reasonable doubt, while facts asserted by offenders need only be established on the balance of probabilities, following Olbrich and Filippou.
  • Under the Bugmy principles, the mitigating weight of profound social disadvantage and deprivation is not diminished by the passage of time and must be given genuine consideration at each sentencing, regardless of the gravity of the offence.
  • Special circumstances justifying an extended balance of term can be found where the offenders' youth, background, and rehabilitation needs require a longer period of supervised parole.
  • Parity of sentence is appropriate where two offenders share substantially similar objective criminality and subjective circumstances, even where minor differences exist in their respective roles.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Court Suppression and Non-publication Orders Act 2010 (NSW)
- Evidence Act 1995 (NSW), s 165

Cases:
- R v Murray (1987) 11 NSWLR 12
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- 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
- R v Alcazar [2017] NSWCCA 51
- Barbieri v R [2016] NSWCCA 295
- Ohanian v R [2017] NSWCCA 268
- Knight v R [2006] NSWCCA 292; 164 A Crim R 126
- Smale v R [2007] NSWCCA 328
- R v Yeo [2003] NSWSC 315