R v Gavin John De Beyer [2017] NSWSC 1700

Supreme Court New South Wales

Medium Neutral Citation: R v Gavin John De Beyer [2017] NSWSC 1700 Hearing dates: 24 November 2017 Date of orders: 06 December 2017 Decision date: 07 December 2017 Before: Hidden AJ Decision: Offender sentenced to imprisonment for 25 years, NPP 19 years, from 1 February 2016 Catchwords: CRIMINAL LAW – murder – conviction after trial – fatal stabbing by offender of his wife – background of domestic violence Cases Cited: R v Halloun [2014] NSWSC 1705 Sumpton v R [2016] NSWCCA 162 Category: Sentence Parties: Regina Gavin John De Beyer Representation: Counsel: Crown – Mr K McKay Offender – Mr A Webb Solicitors: Crown – Director of Public Prosecutions Offender – Birchgrove Legal File Number(s): 2016/33235 Publication restriction: No

1. HIDDEN AJ: The offender, Gavin De Beyer, has been found guilty at trial of the murder of his wife, Sharon Michelutti, at their home in Riverwood on 1 February 2016. On that morning he killed her by a single stab wound to her abdomen with a kitchen knife. The Crown case was circumstantial, and what led to the stabbing is unknown. However, the incident falls to be understood against the background of their relationship.

Facts 1. The offender was 50 years old at the time of the offence and the deceased was 48. They had been in a relationship since their later teens and they married in 2001. They had 5 children, whose ages ranged from 30 to 7 years. At the time of the offence the last of their two children were residing at their home: their son, K, aged 17 years and their daughter, T, who was 7. 2. Both the offender and the deceased drank alcohol to excess at times, and both used illicit drugs. Over a long period they had regularly used cannabis and taken amphetamines (described in a statement of the offender's sister, Louise De Beyer, as "speed"). It seems that in more recent years they also used methylamphetamine, commonly known as "ice". 3. The relationship had been a troubled one for many years. They regularly had arguments about a variety of matters: sometimes matters of substance, such as the expenditure of money or the behaviour of the children, and sometimes quite trivial things. It does seem that mutual drug use, and its impact upon the family finances, put a strain on the relationship. 4. Frequently, during these arguments, the offender would assault the deceased, throwing things at her, pushing her, punching her, kicking her and even head butting her. She was not physically violent towards him. They abused each other, but he would abuse her in particularly virulent terms. This was strikingly demonstrated by a recording of one of the arguments made by the deceased on her mobile phone, which was downloaded by investigating police and was admitted in evidence at the trial (Exhibit T). 5. This is no more than a brief sketch of the evidence of domestic disharmony and violence from a number of witnesses at the trial, principally that of their son, K and their third child, Kalyra, who was 19 years old at the time of the offence. It was also the subject of handwritten material of the deceased, Exhibit U, which was found after her death. 6. Despite this consistent conflict, the relationship had endured for roughly 30 years. Louise De Beyer, whose statement to police was read to the jury, was familiar with the relationship of the offender and the deceased from its inception until about 1990, when she had a falling out with her brother and lost contact with them for about 20 years. When contact was resumed the deceased would speak to her about the relationship. In these circumstances Ms De Beyer's knowledge of the extent and nature of their conflict is limited. Nevertheless, it is fair to note her description of them as "a very loving couple in their own funny way." 7. A neighbour, Lisa El-Zein, who had known the offender and the deceased for a long time and had been a confidant of the deceased, gave evidence of their relationship not being a happy one, particularly in the period from the later part of 2015 to the day of the offence. Generally, however, she agreed in cross-examination that there had been "a degree of up and down" in the relationship. 8. On 13 December 2015, police were called to the home in the mid-evening after the deceased and the offender had been drinking and arguing. What led to their being called is of no particular significance. Indeed, it appears that it was the offender who called them. What is of significance is that the incident led to an apprehended domestic violence order being made against the offender in the Local Court on 16 January 2016. The protected persons were the deceased and their daughter, T. It was served on him on 23 January. The order was for a term of 12 months and, of course, was in force at the time of the offence. 9. In the morning of 1 February 2016, prior to the fatal event, the offender had been angry. Kalyra had telephone contact with her mother at about 10am, and she could hear her father in the background complaining angrily about having lost his phone charger. At the time of the stabbing, which appears to have been roughly 40 minutes later, only the offender and the deceased were at home. K had been staying overnight at a friend's place. 10. Telephone records reveal that at 10.42am a call was initiated to the 000 emergency line from the phone used by the deceased, but did not connect. It was the Crown case that the deceased had attempted to make that call but was prevented from doing so by the offender. It was said to be at that point or shortly thereafter that he stabbed her. There had been conflict of some kind between the two of them and the offender inflicted the wound in a rage. He was said to have prevented the call to 000 because he was conscious of being subject to an apprehended domestic violence order at the time and did not want police to become involved. 11. This is a plausible scenario, consistent with the evidence, but there is substance in the argument of counsel for the offender, Mr Webb, that there is very limited evidence upon which to form firm conclusions about what happened. As I have said, the evidence does not disclose what led to the stabbing. Nor does it disclose why the offender had the knife, or exactly how the 000 call was initiated. Against the background of domestic violence, I am satisfied that there was conflict between the offender and the deceased on this occasion and that he stabbed her in anger. His use of a knife was exceptional, there being no suggestion that he had ever used one on any previous occasion, but I could not be satisfied that the stabbing was anything other than spontaneous. I cannot find that he intended to kill the deceased but, of course, the jury's verdict conveys that he intended to inflict grievous bodily harm upon her. 12. The offender then set about concealing his involvement in his wife's death. He withdrew the knife from her body, took it to the kitchen, wiped it with a tea-towel and placed it in a kitchen sink with other items to be washed. He put the blood stained tea towel into the washing machine in the laundry, but did not turn the machine on. The deceased was lying on the bed in the main bedroom, which they shared, and he covered her body with a doona. He left the house a little before 11am, having changed his clothes. He had been wearing a distinctive shirt and shorts. The shirt was found by police on the top of the washing machine, and the shorts were never found. 13. At the time he left the home, K arrived to change his pants before going with two friends to look for work. The offender said nothing to K about the fate of his mother. He merely said that he was going to pick up his car, which he had lent to Kalyra the previous day, and left. He proceeded on foot to Campsie Police Station. There, apparently in great distress, he told police that the deceased had killed herself. This had been the effect of his case at trial: that is, that the knife had penetrated her body by her own act, whether deliberately or accidentally. 14. It was the Crown case that after the stabbing the offender left the home when he did because of the arrival of K. It was said that he otherwise would have dealt with the knife, the tea towel used to wipe it, and other items in the house tending to link him to the stabbing before leaving. It was put that if he had succeeded in doing so, he might have been able to claim that someone else had entered the house and murdered his wife while he was absent. 15. This also seems plausible, and is consistent with the appearance of the offender having left the house before completing the process of dealing with items which might have been incriminating. However, there is force in Mr Webb's argument that it assumes that he left the house because he knew K had arrived. It is fair to say that the evidence could establish no more than that he was leaving the house and encountered K outside as he did so. There is no doubt that the offender had taken steps in the house to conceal his crime, but they may not have been as well thought out as the Crown would have it. On balance, I accept Mr Webb's submission that those steps were "both incomprehensive and largely ineffectual."