R v Darren MUMBERSON

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.

Issues on appeal 19The Crown relies on the following grounds of appeal: Ground 1: His Honour should have found the aggravating feature pursuant to s.21A(2)(c) Crimes (Sentencing Procedure) Act 1999 - use of a weapon; Ground 2: His Honour should have not given the respondent a 15% discount for his plea; Ground 3: His Honour failed to have adequate regard to the standard non parole period; Ground 4: The sentencing Judge placed too much weight upon the respondent's subjective features and insufficient regard to deterrence and the other purposes of punishment; Ground 5: The sentence is manifestly inadequate (previously contained in the Notice of Appeal).

Crown submissions 20It was submitted for the Crown that the sentencing judge should have found the aggravating feature pursuant to s 21A(2)(c) of the Crime (Sentencing Procedure) Act , because the motor vehicle was used as a weapon: R v Chisari [2006] NSWCCA 19, Hamilton v R (1993) 66 A Crim R 575. The Crown did not contend that the sentencing judge should have found the aggravating features in pars (i) or (ib) of s 21A(2). 21The Crown submitted that, since it was only a few days prior to the commencement of the trial that the respondent's counsel conveyed to the DPP that the respondent would plead guilty, there should not have been a discount of 15 per cent: R v Borkowski [2009] NSWCCA 102; (2009) 52 MVR 528. 22The Crown submitted that the sentencing judge did not give reasons justifying his finding that the matter fell below the middle range of objective seriousness, or justifying such a dramatic deviation from the standard non parole period: R v Tory [2006] NSWCCA 18 at [42]; R v McEvoy [2010] NSWCCA 110 at [92] - [94]. 23The Crown submitted that the sentencing judge misinterpreted the criminality involved in the offence, namely very serious domestic violence against the victim, something which is by no means unusual or unique: cf R v Cheh [2009] NSWCCA 134 at [30]. The Crown submitted that the subjective circumstances were not as strong as the sentencing judge assessed them: the respondent was not of exceptionally good character, and had an unaddressed binge drinking problem. 24The Crown submitted that no reason was given for the leniency of suspending the sentence, and that the subjective circumstances were not sufficiently compelling to justify this: R v Foster [2001] NSWCCA 215; (2001) 33 MVR 565 at [36], R v Zamagias [2002] NSWCCA 17.

Respondent's submissions 25Mr Roser SC for the respondent submitted that the principles in House v The King (1936) 55 CLR 499 apply; that even if this Court found error, it has a discretion whether or not to intervene: Carroll v The Queen [2009] HCA 13; and that the Crown should not be permitted to attempt to rely on matters that were not part of the Crown case below: R v JW [2010] NSWCCA 49. 26Mr Roser submitted that the assessment of the objective seriousness of an offence is classically within the role of the sentencing judge: Mulato v R [2006] NSWCCA 282 at [37] and [45] - [46]. 27Mr Roser submitted that there was no error in the discount given for the plea of guilty; and that there was overwhelming evidence of the remorse of the respondent, and this was not disputed by the Crown below. He submitted that there was no error in finding that the respondent was unlikely to re-offend, or in accepting that he had good prospects of rehabilitation and was of good character. 28Mr Roser noted that the Crown submitted below that a penalty of periodic detention was within the range available (albeit that such a penalty no longer existed), yet a suspended sentence was a more severe penalty than periodic detention: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, R v JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18, R v Zamagias [2002] NSWCCA 17. 29Mr Roser referred to a number of authorities in which suspended sentences were imposed or not overturned, including R v Farrawell-Smith [2010] NSWCCA 144. He submitted that the sentencing judge had not erred in using the standard non-parole period as a guidepost: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168; and that the reasons given were adequate. 30Mr Roser also relied on a letter from the NSW Department of Corrective Services advising that, in accordance with the provisions of the respondent's bond, his obligation to report to the Service had been terminated as from 23 January 2011.

Decision 31I accept Mr Roser's submission that determination of the objective seriousness of an offence is very much a matter for the sentencing judge; and in circumstances where the Crown conceded below there were no aggravating factors, I do not think the sentencing judge's assessment (which I take to be that the matter here fell just below the mid range of objective seriousness) should be overturned by this Court. 32However, on that assessment, and even if one does not treat what was done as using a motor vehicle as a weapon, this was a very serious offence. It involved a deliberate act (grabbing and twisting the steering wheel of a moving car) knowing that this carried a risk of causing grievous bodily harm to the victim, and nevertheless doing it without caring that this could happen. The risk that grievous bodily harm could thereby be caused was very high, and the extent of the injury that could be caused was very great. In fact, very serious injury was caused to the victim, and the victim impact statement was accepted by the respondent (and is still accepted by the respondent) as showing her serious ongoing problems. This was an unexplained act of violence committed in the knowledge of a high risk of serious injury to the victim as well as to himself. The lack of recollection is not a mitigating factor. Nor was the applicant's act entirely impulsive: it was planned, albeit only for a short time. 33Given the standard non-parole period of four years, and taking account of the plea of guilty and the assessment that the objective seriousness was just below the mid range, it would be very difficult to justify a non-parole period of much less than three years in the absence of significant subjective circumstances. That the injuries were caused in an unusual way is not material to the seriousness of the criminality that was involved: certainly it is not a mitigating circumstance. The applicant's offence was a recklessly violent act with very serious consequences; and regrettably such conduct is far from rare, especially where intoxication is involved. 34It is of course necessary to consider the significance of the respondent's subjective circumstances. 35The sentencing judge's acceptance of the mitigating factors in pars (b), (e), (f), (g), (h) and (i) of s 21A(3) was not challenged by the Crown below, and is not challenged by the Crown on appeal; nor is the sentencing judge's preference for the view of Mr Probet as to the respondent's need for future treatment to that expressed in the preceptor's report. 36However, the Crown does challenge the finding that the respondent was of exceptionally good character; and while a finding of good character was available and indeed conceded, I see no justification for the view expressed by the sentencing judge of exceptional good character, having regard to his record set out above. Further, in my opinion, it is to be taken into account that the appellant denied there were any emotional issues that could have contributed to what he did: on his account, he had ended the relationship with the victim shortly before the offence, and he could not identify any emotional problems he had at the time. The only explanation that could be suggested, on the respondent's account, for what he did was that he was heavily affected by alcohol; and although the material before the sentencing judge indicated that the respondent sometimes engaged in binge drinking, it did not show that this was something that the respondent accepted he needed seriously to address. 37The finding that the respondent was not likely to re-offend was not challenged below and is not challenged here; but on the other hand, the evidence does not suggest that the respondent has carefully considered why he did what he did, or seriously undertaken to address whatever it was that led him to do such an extremely dangerous and harmful act. 38Again, the finding of remorse is not under challenge; but in my opinion the weight to be given to the respondent's acceptance of responsibility and acknowledgement of the injury he caused to the victim is affected by his failure to give any oral evidence about this; and certainly there is no suggestion that he has ever even considered making reparation for the injury caused to the victim. 39It was put to the sentencing judge that the respondent did not give evidence because he could not remember what happened; but that does not explain his not giving evidence on such matters as his concern about why he acted in the way he did, his resolve to address any issues that may have contributed to this, his acceptance of responsibility, and/or his concern for the victim. 40The respondent did have substantial subjective factors operating in his favour; but in my opinion, having regard to the objective seriousness of the offence, they could not be considered so favourable as to justify a starting point, before any discount for the plea of guilty, of two years for the total sentence to be imposed. In my opinion, this starting point was outside the range that could reasonably be adopted, and error is shown. In my opinion, the error was compounded by the suspending of the sentence, which again was outside the range of sentencing options that could reasonably be adopted. 41As regards the discount of 15 per cent for the guilty plea, in my opinion this was over-generous; but I do not consider that this on its own would justify appellate intervention. 42The question then is whether this Court should, in the exercise of discretion, intervene. In my opinion, it should, in particular to reverse the suspension of the sentence. However, in the exercise of discretion, it is in my opinion appropriate to impose a penalty substantially less than would have been appropriate at first instance. 43In my opinion, the mitigating factors identified by the sentencing judge, taken together, justify a finding of special circumstances permitting a departure from the statutory ratio for the non-parole period. After allowing a ten per cent discount for the plea of guilty, I would impose a non-parole period of fifteen months, with the balance of sentence of one year. 44A question arises as to the commencement date for the sentence. Under s 47 of the Crimes (Sentencing Procedure) Act , a court may direct that a sentence be taken to have commenced on a day occurring before the day when the sentence is imposed, but not on a day occurring after that day (except in the case where the offender is serving another term of imprisonment). In my opinion, it is appropriate in this case to order to the effect that the respondent's sentence commence on 8 October 2010, so that the time he has been subject to a good behaviour bond counts towards satisfaction of his sentence. Thus the effective non-parole period will be nine months. 45I note that s 14A(4)(a) of the Criminal Appeal Act provides for the giving of notice to a respondent of the date on which appeal proceedings are to be disposed of or a sentence imposed. In this case, the Court requested that the Registrar give the respondent adequate notice to that effect.

Orders 46For those reasons, I propose the following orders: (1) Appeal allowed. (2) Sentence below quashed. (3) In lieu thereof, the respondent is sentenced to a non-parole period of fifteen months imprisonment commencing on 8 October 2010 and expiring on 7 January 2012, and a balance of term of one year, expiring on 7 January 2013. (4) The respondent is to be released on parole on 7 January 2012. 47ADAMS J: I agree with Hodgson JA. 48HALL J: I agree with Hodgson JA.

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