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." Victim impact statements 1. I received victim impact statements from the deceased's daughter, Kalyra Michelutti, who is now 21 years old, and from the deceased's brother, Steve Michelutti, and her mother, Joan Bush. Kalyra Michelutti read her statement to the court. As one might expect, she was very distressed when she did so but persevered with courage and dignity. All the statements express their grief and outrage at the senseless and brutal death of the deceased, and attest to her love of her children. Steve Michelutti's statement also reveals the "significant distress" suffered by his partner, Sharon, who saw the deceased as "the sister she always wanted to have... ." The statements reveal the enduring effects this tragedy has had upon their lives. This includes Steve and his partner taking on parental responsibility in respect of their nephews and nieces, and Kalyra assuming the burden of care for her younger sister, T. 2. At the sentence proceedings I expressed my deepest sympathy to the family members in their loss, and I do so again now. I have regard to the victim impact statements as giving "texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way": per McCallum J in R v Halloun [2014] NSWSC 1705 at [46] (cited in Sumpton v R [2016] NSWCCA 162 at [153]. Subjective case 1. The offender is now 52 years old. He has a sporadic criminal history, commencing in the Children's Court in 1979. The only entries of significance for present purposes are several offences of breaching an apprehended violence order and stalking or intimidating with intent (domestic). These entries are infrequent, and appear over periods between 1996 to 2000 and 2011 to 2014. 2. Also in evidence are a pre-sentence report of Ms Amy Rafalo, Community Corrections Officer, a report of Dr Olav Nielssen, psychiatrist, and a statement of the offender's mother, Ms Barbara Booth. His mother bears that surname following her second marriage, after the termination some years before of her relationship with the offender's father, John Ralston De Beyer. 3. Ms Booth is now 74 years old. In her statement she sketches the history of the family, including the development of the relationship between the offender and the deceased when they were both in their teenage years. The offender is the eldest of four children, two of whom have died. The picture she paints of his early years is disturbing and, possibly, significant. 4. She described the offender's father as "an angry man", who physically abused her on many occasions. She said that she had blocked a lot of what had happened in those early years out of her memory, but did recall "certain things". He would hit her in her left eye which, to his knowledge, had been damaged in an accident when she was a young girl, causing a loss of vision. He would beat her up in front of the children, who were terrified and too little to do anything. She said that it was "like he needed an audience." On occasions his beatings were bad enough for her to need hospitalisation, but she was too scared to call the police because she knew that he would beat her up "some more." 5. She also said that in recent times she was told by her daughter, Louise, about something else which she had blocked from her memory. This was that the offender's father used to be "very heavy handed" with him and would often "bash" him. Any time that the younger children were in trouble for having done something bad, he would beat the offender "as punishment for the other children." 6. At some stage she and the father separated. It is not apparent from her statement when this occurred, but the offender told Ms Rafalo and Dr Nielssen that he was 6 years old at the time. He and his siblings remained with their mother, although for a period of some years he, his sister and one of his brothers stayed with their maternal grandmother because their mother was spending a lot of time with his other brother, who was seriously ill in hospital. In due course, they returned to live with their mother, and over the whole period, they had some contact with their father on weekends. 7. After the offender and the deceased moved out to live together, it seems that Ms Booth has had only sporadic contact with them. It is apparent from her statement that she was not aware of the problems in the relationship and, in particular, of the offender's pattern of domestic violence. 8. To what extent the offender was scarred by his childhood experience of domestic violence perpetrated by his father is unclear. Ms Rafalo's pre-sentence report reveals that he "described what appeared to have been a difficult childhood", and he told Dr Neilssen that he had been "neglected as a child." However, neither report records anything said by him about his father's violence. His account of his background conflicts with that of his mother in other respects, which need not be examined. To both Ms Rafalo and Dr Nielssen he maintained his innocence of the murder of the deceased, and gave an account of his relationship with her which is plainly sanitised and which I do not accept. 9. Dr Nielssen did not find the offender to be suffering from a major mental illness requiring specific psychiatric treatment. His main problem would seem to be substance abuse, and Dr Nielssen recommended counselling and supervision of abstinence after his release from prison. Ms Rafalo described him as a man who "presented as emotionless and detached", and he displayed no remorse about the death of the deceased. She recommended that, upon his release, he be referred to "an appropriate intervention program targeting domestic abuse" and a "suitable drug and alcohol intervention program." 10. Finally, I received a character reference from a friend of the offender, Mr John Nott, who also gave evidence. The reference was provided with the knowledge of the murder conviction. It records that Mr Nott had known the offender and his family for 12 years, and considered himself a close family friend. It describes the offender as a person of integrity, who did his best to be a good parent and was "always there" for his family. Mr Nott wrote that, although the offender's and the deceased's relationship was "quite volatile", they loved each other and brought up their children as well as they could with the little resources available to them. He added in the reference that he "would not have remained friends if there was any inclination (sic) abuse was being perpetrated against the family, as he knew I do not accept any excuse for violence against women and children." 11. In oral evidence, Mr Nott presented as an honest and responsible citizen. However, it emerged in cross examination that, apart from a "couple" of occasions when police took out apprehended violence orders against the offender for the protection of the deceased, he was not aware of the extent of the violence he had inflicted upon her. Nor was he aware of issues between the offender and the family, including the fact that other members of the family had taken out apprehended violence orders against him. 12. Over objection, I admitted a statement of the offender's son, Blake, together with a disc of a recording made on his mobile phone, concerning an occasion in October 2014 when the offender abused Blake from outside his home unit (Exhibit B). That incident needs to be understood in its context and, of itself, I do not see it as of any particular significance. When the disc was played to Mr Nott, he said that it sounded like an argument between the offender and his son. He had no knowledge of its circumstances, but said that he did not know "whether that is a relationship between him and his son." 13. Of course, it is often the case that long standing domestic violence is not apparent to outsiders, including family friends. The offender may well have exhibited good qualities in his relationship with Mr Nott as a friend, but I can place very little weight upon Mr Nott's evidence about his relationship with the deceased and his family. Sentence 1. Clearly, this is a serious offence of murder. It involved the use of a knife. It was an act of domestic violence, against a longstanding background of violence of that kind. The offender was subject to an apprehended violence order for the protection of the deceased at the time. While the circumstances of the stabbing are unclear, there is nothing to suggest any provocation on the part of the deceased. 2. As I have said, the offender stands for sentence on the basis that he killed the deceased by a spontaneous act with the intention of inflicting grievous bodily harm upon her. The Crown prosecutor and Mr Webb were agreed that the offence falls into the mid-range of objective gravity. 3. The offender maintains his innocence and has shown no remorse. His subjective case does little to assist him on sentence. I have referred to his previous convictions for contravening apprehended violence orders and stalking and intimidation. However, it is fair to observe that there are only a few of those convictions over a lengthy period, and that his criminal history otherwise is limited and of no present relevance. I accept that he had a disturbed upbringing. I do take into account his exposure to domestic violence perpetrated by his father when he was a child but, in the absence of any account by him of that experience, and any expert evidence about its likely impact, I can give it no more than limited weight. 4. It is difficult to assess his prospects of rehabilitation. However, given that he must serve a lengthy term in custody before release on parole and the fact that he would be of an advanced aged when released, I entertain some hope that he would not re-offend in this way. Nevertheless, personal deterrence remains relevant and, of course, general deterrence looms large. I do not find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. Given the length of the sentence I must pass, that proportion would provide for a substantial period of parole eligibility. 5. I consider that the appropriate sentence is imprisonment for 25 years. The application of the statutory proportion to that sentence leads to a non-parole period, in round figures, of 19 years. He has been in custody since his arrest on the day of the offence, 1 February 2016. 6. Gavin John De Beyer, for the murder of Sharon Michelutti you are sentenced to a non-parole period of 19 years, commencing on 1 February 2016 and expiring on 31 January 2035, and a balance of term of 6 years, commencing on 1 February 2035 and expiring on 31 January 2041. You will be eligible for release on parole on 1 February 2035. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 December 2017