Proceedings before sentencing judge
5The following statement of agreed facts was tendered before the sentencing judge:
As at the date of the offence, the victim Kara Monro and the offender Darren Mumberson were involved in a domestic relationship, although did not cohabit.
At about 11pm on Sunday 28th of June 2009, the victim was at her home when she received a telephone call from the offender who was at PJ Gallagher's hotel in Parramatta. The offender was sounded heavily intoxicated and the victim offered to and pick him up [sic].
The victim arrived at the hotel at about 11:40pm and picked up both the offender and Andrew Bryan, a friend of the offender.
The victim was driving a maroon coloured Holden Commodore registered DM 1059.
The victim drove Mr Bryan to his home in Winston Hills before then heading towards Oakhurst, the home of the offender. Darkness had been sitting in the front passenger seat, and after he alighted in Winston Hills, the offender moved from the rear of the car to the front passenger seat.
The victim drove to the M4 motorway and then headed west towards Oakhurst. While travelling on the M4, the offender used the victim's mobile telephone and telephoned Kaylene Jones, a friend of the victim. The offender was aggressive and argumentative and became involved in a heated argument with Ms Jones. After the call was terminated, and while they were still travelling on the M4, the offender reached over to the steering wheel and pulled it downwards causing the car to swerve to the left hand side of the road. There was limited traffic about and the victim was able to regain control of the vehicle without incident.
The victim exited the M4 via the Reservoir Road exit and stopped at a red traffic light at the intersection of Reservoir road and the Great Western Highway.
While waiting at the lights, the offender told the victim to go through the red light. He started to talk about death and screamed at the victim, " Kill us now. Go through the red lights ".
The victim waited for the traffic lights to turn green and then proceeded through the intersection and travelled north along Reservoir Road, She turned left at the roundabout at Holbeche Road, Arndell Park.
While she was turning left, the offender undid his seatbelt. The victim, believing that the offender was going to jump from the car, locked the car doors.
The offender was acting erratically and his behaviour was causing the victim to worry. As the car approached a second roundabout, at the intersection of Holbeche Road and Walters Road, the offender said, " When we get through this roundabout I'm going to drive us into that truck that is parked on the left ." This caused the victim to panic and she began to drive slightly faster in order to get the offender home.
As the vehicle approached a truck parked on the left side of the road, the offender reached across the centre console again and took hold of the steering wheel with his hand. He pulled it down and to the left, causing the car to swerve violently to the left.
The victim attempted to correct the vehicle but it was already spinning to the left. The car impacted with a telegraph pole and then spun into the parked semi trailer.
The victim observed the offender to hit the windscreen as he was not wearing a seat belt.
Police and ambulance attended the crash scene and both the victim and the offender were treated by paramedics. They were both taken by ambulance to Westmead Hospital.
Police took photographs of the vehicle and the scene.
As a result of the collision, the victim suffered two fractures to her spine: - a C2-3 fracture and a sacral fracture. She underwent surgery involving anterior cervical discectomy and fusion of C2-C3 and a posterior C1-C4 fusion for the C2-C3 fracture/sublaxation.
On Monday, 10th August 2009, the offender attended Blacktown Police Station and was charged with the matter before the Court.
The offender was cautioned and agreed to answer certain questions of the investigating police. The interview was recorded on DVD and during the interview the offender stated that he had no recollection of the incident. He said that his last memory was consuming alcohol with his friend.
6Also tendered before the sentencing judge by the Crown were the respondent's criminal history, his traffic record, a victim impact statement and a pre-sentence report by James Potts. For the respondent, there were tendered a report of C Probets, a psychologist, and five written references. No oral evidence was given.
7The respondent's criminal history showed one conviction for a high range PCA on 15 October 1998, for which he was fined $1,000 and disqualified from driving for 12 months. His traffic record showed eleven further fines for speeding and other offences between 1993 and 2008, and also a number of fine defaults, suspensions of licence and one demerits point suspension of licence (all apparently quickly lifted or not implemented).
8There was no medical evidence as to the victim's medical situation, but her victim impact statement was not challenged, and the sentencing judge accepted it as showing the following:
She is unable to turn her neck and head, in full rotation. She has scars to her hip and surgical scars on the back and front of her neck. She will never be able to do high impact sports or activities. She has restrictions on weight lifting, she has to turn her whole body to check left and right while driving and she may have difficulty in lifting children. She gets pain for which she needs pain killers and she still has medical check ups. She has given a list of the features of emotional impact and the impact on her well being. She has self doubt, sleepless nights, intense nightmares, loss of confidence, loss of trust in relationships, fear of driving in the rain, nervousness generally in a number of fashions, in motor cars and she had emotional break downs leading up to the court case.
...
She still needs treatment by a clinical psychologist for the features which I have mentioned. She finds that she cries uncontrollably at times. Her social life has changed and she lacks confidence in going out and meeting new people. Her physiotherapy has to be met from her own pocket as have other elements of medical treatment and generally there has been an impact on her financial situation which is set out in detail in the victim impact report and which I repeat, is accepted.
9It was not suggested that the respondent himself received any significant injury; although on impact he struck his head on the windscreen, and the psychologist who examined him thought this, together with his intoxication, may have contributed to his inability to recollect what happened.
10The pre-sentence report was summarised as follows by the sentencing judge:
The pre-sentence report is a favourable one. The author comes to conclusions based of course on what the author has been told, similar to those which I have already mentioned. It does say that relationship and anger issues may have been a factor in the offending behaviour although says the author "the offender denies that this was the case".
The author of the pre-sentence report believes that the offender does not have any memory of the offence, saying only that the actions were totally uncharacteristic, and says that
"In view of this it would be difficult to say that the offender has any insight into his offending behaviour or an ability to 'own' such behaviour. Alcohol abuse and anger/relationship issues would appear to be issues relating to his offending behaviour."
The author assesses the offender as unlikely to benefit from supervision because, says the author "Mr Mumberson was during discussions of the offence, unable to identify any issues that he can see needed to be addressed or of which he was aware."
11The psychologist's report was summarised as follows by the sentencing judge:
... There is a report from Mr Chris Probets, forensic and counselling psychologist which I find acceptable. It is careful and comprehensive. In its seven pages, Mr Probets recounts comprehensively the details of his findings which he has used to come to his conclusion. He believes that the offender functions well although not perfectly on the psychological assessment. He has previous problems with alcohol abuse to which he admitted but there are no indications of difficulties with social interactions, and close personal relationships. None of those, says Mr Probets, would suggest that the offender is in danger of reoffending. I quote:
"The overall picture utilising the psychometric assessments was of a fairly well adjusted person who has suffered somewhat due to alcohol use which has damaged his interpersonal relationships. There was no indication of any type of significant psychological or psychiatric disorder and his usual level of psychological functioning appears to be quite effective and in line with the majority of the non-offending population."
In my opinion Darren Mumberson does not require any psychological treatment as there is no significant psychological or psychiatric disorder that requires treatment. As he is a well functioning person, psychological treatment would not have any purpose or even any behaviour to target. It would be useful however if he was to learn to reduce his alcohol intake which he tells me he has done. In particular it appears that it would be useful if he could stop binge drinking.
The assessment interview and a psychometric assessments [sic] indicated that Darren Mumberson's personality is quite unlike the type of personality one would expect in a person committing this type of offence. According to his statement the offence does not relate to his thoughts, feelings and behaviour prior to or following the offence."
Mr Probets goes on to give reasons why he finds that the offender's statement of lack of memory of what happened in the motor car after the telephone call I have mentioned, is quite acceptable for medical reasons.
...
Mr Probets says and I quote:
"In my opinion Darren Mumberson does not present a danger to the community and a custodial sentence may set back his progress. In particular a custodial sentence may result in a set back to his current level of functioning. It would also prevent him from undertaking the changes that he needs to make that will lead to progress in his life and psychological functioning."
12The sentencing judge summarised the references as follows:
The five references which have been provided come from persons who have known the offender for years. For example, seventeen years in one case and twenty years in another. They come from his employer and persons who have known him in the sporting activities of his youth and who are familiar with his family life. Not only do they say that the offence for which he has been sentenced is one which is totally out of character, but they go on to speak
about his being a wonderful father, loyal to his family and friends and one who helps anyone in need. He has been incredibly loving, honest and respectful. His having an exceptional work ethic, working extremely long hours and always accepting extra work when required by his employer. He is working closely with his ex partner regarding their children's welfare and discipline and as to his being a very conservative person who is normally guarded in committing his emotional welfare to any other person whilst remaining a dedicated father, son and friend.
A significant feature is that referees have noted that he is in one case, "very emotional and worried sick about what has happened" and particularly remorseful about the effect of his actions on Ms Monro. That summarises what is set out in much more detail in the references.
13The sentencing judge summarised the submissions as follows:
In a very careful address with which the crown prosecutor expressly did not quarrel except for one feature, Mr Gallagher has set out carefully but succinctly the features which I have mentioned but has also gone to s 21A of the Crimes (Sentencing Procedure) Act . There are no aggravating features under subs (2) of the section. There are mitigating features in subs (3) which he examined carefully. I shall not repeat that examination other than indicating that he quite properly and favourably on behalf of his client dealt with the paragraphs (b), (e) (f), (g), (h) and (i). He also argued paragraph (j) in his client's favour although in my view, although properly put, that was not as strong a submission as the earlier ones.
14The sentencing judge found that the case was unique, and that in his twenty-seven years of judicial experience he had not experienced a case from which any real assistance could be gained by way of comparison or analogy. He noted the most severe injury to the victim. He found that the respondent was a man not just of good character but of exceptionally good character, being thirty-seven years of age with only one entry on his record. He noted that although the respondent had no recollection of what happened, he could have made a realistic defence on the basis that he was unlikely - close to the point of impossibility - to have committed the acts involved in the crime. The sentencing judge found that the respondent's guilty plea indicated remorse and was a genuine indication of his acceptance of his responsibility for what happened.
15The sentencing judge said that he preferred the view of Mr Probets as to the respondent's need for future treatment to that expressed in the pre-sentence report.
16The sentencing judge noted that, because of the guilty plea, this was not a matter in which the mandatory non-parole period applied. He said that the matter fell in the range of objective seriousness somewhat below the mid range, but approaching the mid range from below and close to it.
17The sentencing judge expressed his conclusions as follows:
I came to the view that the sentence should be one of two years. I have reduced it by fifteen per cent for its utilitarian value. Although it came at quite a late stage, it still had a very strong effect in so far as it caused Ms Monro not to have to give evidence, granted that she had the earlier stress of anticipating a trial. It saved the calling of a number of witnesses and the trial itself would have been relatively lengthy.
Although the plea of guilty does carry other features, in particular, it is recognition of responsibility by the offender, it is a support for my finding that he is remorseful and those other features would go to a finding of special circumstances if this were to be a time when a non-parole period would be specified. It is not specified of course in relation to a suspended sentence.
18He said that the bond to be signed by the respondent should include a condition that the respondent enter into all forms of treatment as may be prescribed by his treating psychologist or psychiatrist.