R v Moananu

[2020] NSWDC 672

District Court of NSW|2020-10-08

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At a glance

Source facts

Court

District Court of NSW

Decision date

2020-10-08

Source

Original judgment source is linked above.

Judgment (49 paragraphs)

[1]

Introduction

The Offender is to be sentenced having pleaded guilty to the following offences: 1. That on 28 September 2018 at Orchard Hills he unlawfully killed AH. That is the offence of manslaughter under s 18 of the Crimes Act and has a maximum penalty of 25 years imprisonment. 2. That on the same day and at the same place he unlawfully killed Katherine Gordon. That too is an offence of manslaughter relating to Ms Gordon. 3. That on the same day and at the same place he drove a vehicle when it was involved in an impact occasioning grievous bodily harm to Bronko Hoang, and at the time of the impact he was driving the vehicle under the influence of intoxicating liquor, in circumstances of aggravation, namely that he had in his blood the prescribed concentration of alcohol. His reading was in fact .204 being more than four times the legal limit. That is an offence under s 52A(4) of the Crimes Act and has a maximum penalty of 11 years imprisonment.
None of the offences carry a standard non parole period.
When sentencing the Offender on the offence of manslaughter which relates to Ms Gordon, the Offender acknowledges his guilt in relation to the following offences and asks that I take them into account when imposing sentence on that count: 1. An offence of by misconduct he drove on the incorrect side of the road causing bodily harm to a Blake Reid; 2. Driving without being licenced; and 3. Driving while present in his blood a prescribed illicit drug being Delta 9 tetrahydocannabinol and Delta 9 THC acid, essentially cannabis.
At the outset, I record convictions in relation to the three offences to which the Offender has pleaded guilty.
There are three offences on a certificate under s 166 of the Criminal Procedure Act which are to be withdrawn upon the imposition of sentence.

[2]

[12]

Bronko Hoang

Bronko Hoang sustained a number of very significant injuries as a result of the collision:

A tear in the area of the body where the intestine attaches to the abdominal wall requiring a laparotomy, control of bleeding vessels, and the removal of part of his colon.
A traumatic brain injury requiring a ventricular drain insertion.
A fractured base of the first metatarsal requiring a reduction and pinning.
A reduction in the blood flow to his left upper limb, secondary to left subclavical/auxillary artery dissection which was managed conservatively.
A left sided pneumothorax which was decompressed at the site of the collision by finger thoracostomy and subsequent insertion of intercostal drains.
Sixth cranial nerve palsy resulting in diplopia, being impaired perception of images.
Post traumatic grief requiring counselling.

After initial operations and treatment Mr Hoang was reviewed by his colo-rectal surgeon on 21 December 2018. It was ascertained his wounds were healing well and the colostomy was functioning normally. To check the colon proximate to the colostomy and the rectal stump, a colonoscopy was performed on 21 January 2019. Both the colon and rectum were in good condition at that time.
On 18 March 2019, further surgical intervention was undertaken to take down the colostomy and re-join the colon. On the 30 March 2019 Mr Hoang suffered abdominal pain as a result of an anastomotic leak, being a leak from the site of the surgery. Mr Hoang was re-admitted to hospital and an emergency laparotomy performed. A pin-hole leak at the anastomotic staple line was noted. There was no peritoneal contamination other than free gas and some inflammatory exudate. The peritoneal cavity was washed out after which Mr Hoang made a good recovery.
Another operation was performed on 25 November 2019. Mr Hoang made a good recovery from that surgery. Regular medical review has continued to assess the recovery made by Mr Hoang. There is a possibility of further difficulties associated with the large midline incision which was opened on two occasions plus the site of the colonoscopy and there is potential for hernia formation in the future.

[20]

Objective Seriousness

In relation to my assessment of the objective seriousness of the two manslaughter offences I note the following observations of Justice Howie, with whom the other members of the Court of Criminal Appeal essentially agreed, from R v Borkowski [2009] NSWCCA 102: [58] Of course the offence of manslaughter is notorious for the range of conduct falling within its scope and hence the width of the sentencing discretion when punishing for that offence. This is no doubt why there is no standard non-parole period prescribed for the offence. However, when sentencing for the offence, like all offences, the court must take into account the maximum penalty prescribed by the legislature. Further in cases of motor manslaughter, in my opinion, the sentence to be imposed must also take into account the fact that there is a structure of offences dealing with the occasioning of death through driving and that manslaughter stands at the very pinnacle of that structure as the most serious offence. In particular the sentence must take into account that there is a less serious offence of causing death by driving under s 52A(2) of the Crimes Act that carries a maximum penalty of imprisonment for 14 years. Of course it does not follow that the sentence for manslaughter must exceed the maximum for the less serious offence or that the sentence for manslaughter is in some way calculated using the maximum sentence for the other offence.
Howie J in Borkowski made clear that it is unnecessary to consider whether motor vehicle manslaughter can be characterised as one based on unlawful and dangerous act or by way of gross criminal negligence. It is the particular facts of the killing, not the class of manslaughter, that determines the seriousness of the offending; Borkowski at [49].
All cases of manslaughter are objectively serious because they involve the loss of a precious human life. In SBF v R [2009] NSWCCA 231 Justice Johnson, with whom the other members of the Court agreed, said the following in relation to the assessment of the objective seriousness of motor vehicle manslaughter offences: [122] It will be apparent that some of the concepts which may arise for consideration in a case of motor vehicle manslaughter by unlawful and dangerous act or by criminal negligence are not far removed from concepts which arise with respect to, in particular, an offence of aggravated dangerous driving causing death under s.52A(2). The guideline judgments of this Court in R v Jurisic at 231 and R v Whyte at 286 [216]-[220], identified a range of factors which bear upon the objective seriousness of a s.52A offence:
In assessing the objective seriousness of the manslaughter offences I have had regard to the range of objective factors identified in the guideline judgments His Honour referred to, keeping firmly in mind, however, that I am considering two manslaughter offences, which attract a far higher maximum penalty. Some of the factors mentioned in the guideline discussed in those cases involve subjective factors, which I have not had regard to when assessing objective seriousness.
The Crown submitted that the two manslaughter offences fell "towards the higher end of seriousness but falling short of the worst category of case." Counsel for the Offender submitted that the seriousness of the manslaughter offences falls "closer to the mid range than the high range, and is significantly less serious than the worst case."
I am of the opinion that the objective seriousness of the two manslaughter offences falls within the high end of the range of objective seriousness for such offences, but not within the worst category of such cases. My reasons for reaching that conclusion are as follows:
The Offender's level of intoxication was very high, 0.204 grams of alcohol in 100ml of blood. That is some four times the legal limit in relation to the consumption of alcohol and driving. The Offender drove himself to the hotel in question, drank over a significant period of time, and must have always intended that he would drive away from the hotel. Given the level of publicity over decades in this State as to the impact of alcohol on driving and the publicity as to the legal limit being 0.5, and that it takes few drinks to reach that level, the Offender's conduct in driving in the circumstances in which he did, amounted to gross irresponsibility and a total disregard towards all users of the road that day. I note that, not surprisingly, Dr Perl considered that as a result of his alcohol consumption the Offender would have been "very substantially impaired" at the time of the driving and collision. I note that he also had cannabis detected in his blood.
The Offender's driving significantly exceeded the speed limit. A reconstruction report in relation to the collision calculated, by reference to a point located within close proximity of the collision, that the minimum average speed of the Offender's motor vehicle leading up to that point was 112 km/h. That same report recorded that the speed at the time of the deployment of the airbag in the Offender's vehicle was 106.4 km/h. The sign posted speed at the time was 60 km/h and the road was subject to road works signage. Witnesses described the Offender's vehicle shortly before the collision as travelling at "ridiculous speed".
The Offender's manner of driving leading up to and at the time of the collision was erratic, aggressive and grossly negligent given the traffic conditions that prevailed at that time. He was observed by a number of witnesses to be weaving in and out of the traffic, not leaving his indicator on for a sufficient time when changing lanes, went through a red light, changed lanes in a reckless manner almost colliding with a van. It is clear from the agreed facts that there was considerable traffic on the road at the time. He ultimately mounted a concrete median strip, continued through a grassed section and his vehicle became airborne immediately before the collision. Many users of the road at that time were put at grave risk by the Offender's driving. The distance from the hotel where the Offender had been drinking to the point of collision was some 6.4 kilometres.
The factors I have just described demonstrate that the Offender had completely abandoned his responsibility to other users of the road. To drive a motor vehicle in his state of intoxication, in such a manner, and over such a distance, and at a time when there were so many other users of the road, meant that it was almost inevitable that a tragedy such as what occurred, would occur. His conduct in doing so was disgracefully irresponsible, and amounted to extremely serious criminal conduct.
In relation to the assessment of the objective seriousness of the aggravated dangerous driving occasioning grievous bodily harm offence concerning Mr Hoang, the Crown submitted that the objective seriousness of this offence "may also be appropriately characterised as falling within the high range but approaching the worst case". Counsel for the Offender submitted that the objective seriousness of this offence was within the mid range of objective seriousness and a long way short of the worst case category.
I mentioned earlier that the two guideline judgments dealing with dangerous driving causing death and/or grievous bodily harm offences, set out a number of objective factors relevant to an assessment of the objective seriousness of such offences. I have also applied those factors here, and my comments concerning the Offender's level of intoxication, speed, and his manner of driving are equally relevant to my assessment of the objective seriousness of this offence. As I said earlier, there was a complete abandonment of responsibility by the Offender in relation to his driving that day.
The additional objective factor to assess here is the extent and nature of the injuries suffered by Mr Hoang. Mr Hoang has suffered very significant and life altering injuries which he will carry with him for the remainder of his life. He continues to recover from an acquired brain injury, and his ability to work has been compromised. He has had a number of surgical interventions in relation to the injuries to his bowel and has had further hospitalisations to deal with complications arising from those injuries. In the collision he lost his wife and his two unborn sons, both of whom were to be born the following week and his sister. His psychological trauma is clearly profound.
In my opinion, the objective seriousness of the aggravated dangerous driving causing grievous bodily harm offence is also within the upper end of the range of objective seriousness but does not come within the worst case.
In making my assessment of the objective seriousness of the offences I have had regard to the substantial injury and emotional harm caused by the offences; that they were committed without regard for public safety and involved grave risk of death to another in that assessment. I have not separately considered that they constitute aggravating factors under s 21A of the Crimes Sentencing Procedure Act in order to avoid double counting.
I note the Crown submitted that the deaths of the unborn twins were not relied upon in the sentencing for the manslaughter offence concerning Ms Gordon; (Crown submissions [15]).

[25]

Family background

The SAR records that the Offender came to Australia from New Zealand with his family when he was five years of age. He has two siblings being a sister and a brother.
The SAR records that the Offender had a difficult upbringing due to the conduct of his father who had an alcohol problem. At one stage the Offender was removed from the family and placed into foster care for four years. When he was returned to the care of his mother, according to the SAR, he then suffered from violence at the hands of his mother's new partner.
The Offender described his upbringing in greater detail to Mr Sheehan. He described to the psychologist a childhood characterised by neglect, uncertainty and exposure to violence. He told the psychologist that his father never worked and would become intoxicated every day, beating his wife and children. The Offender described to Mr Sheehan after a particularly savage beating, his mother left with the children. Subsequently the Offender said that he was returned to his father's custody and he was subjected to persistent violence by his father, and had no contact with his mother for a number of years. His wounds at one stage were detected by teachers at school and he was removed by Family and Community Services at approximately seven years of age and stayed in five or six different foster homes.
According to the Offender's account to Mr Sheehan, he was subsequently returned to his mother's care when he was about 10 years of age. His mother had re-partnered to another violent man and she would leave the Offender at home to care for other children while she went out gambling. He described to the psychologist circumstances of neglect, with little food in the home and no supervision, and that he was frequently beaten by his step-father.
The Offender described to Mr Sheehan being "kicked out of home" at the age of about 13 to live with his uncle. He developed some stability in his uncle's home and resided there until he was 22 years old when he moved in with his girlfriend. He told Mr Sheehan that he remains in contact with both parents but is ill at ease with them given his history. He has positive contact with a half-sister who remains supportive of him.
In Mr Bembrick's report he records that an examination of the Offender's Child Protection File indicates extensive dealings with the Offender's family by DOCS dating from initial contact with the family in 1995 concerning physical abuse allegations and family violence, when the Offender was six years of age. The DOCS files revealed the Offender was removed from his father's care when aged nine years of age due to violence towards the Offender. Mr Bembrick notes that the DOCS files record the Offender having injuries to his arms from being hit with an implement for not knowing a religious verse. The DOCS files also record a threat by the Offender's father to hang him from a tree if he told anyone about his injuries.
According to what the Offender told Mr Bembrick, there was an occasion after he was returned to his mother's care, that he, when about 11 years of age, had been responsible for putting the younger children to bed. The Offender's seven month old half-brother suffered a cot death during that night, and the Offender felt responsible for it.
The SAR records that he has been in a relationship with his partner for some seven years, although they were estranged as at the time of the offending. The Offender and his partner have had no children together, and the Offender told the author of that report that his partner remains supportive and has maintained contact with him since he has been in custody.
The Offender told Mr Sheehan that he has a son aged 8 to an earlier relationship but that his former partner prohibits him from contacting the son.

[28]

Physical injuries as a consequence of the collision

Dr Dalton in his April report details what is recorded in the Westmead Hospital clinical records concerning the Offender's injuries suffered in the collision. Dr Dalton notes that the Offender was found to have suffered multiple obvious injuries to the lower limbs with a large wound on the medial right calf with visible bone. He also had lacerations to his face and scalp as well as lacerations to his upper limbs, and a seat belt injury to his abdomen. He was found to have a displaced mid femoral fracture on the right and a non-displaced fracture of the corner of the left tibia and fibula head as well as a rupture of the anterior cruciate ligament and a displaced fracture of the tibial plateau as well as an injury to the lateral meniscus. He was discharged to Long Bay Hospital on 15 October 2018 but returned to Westmead to undergo surgical procedures for his injuries on 16 November 2018 and 1 October 2019. As at March 2020 he told Dr Dalton that he was intermittently using crutches and was experiencing pain in the right thigh which tended to build up over the day. He had been receiving physiotherapy while at Long Bay.
Dr Dalton records the Offender stating that he experienced occasional retro-orbital headaches which occasionally affect his vision but receives no treatment other than Paracetamol. When seen by Dr Dalton the Offender reported that his left knee was occasionally sore and mildly swollen but that his right thigh was the major source of pain and disability. He also complained of soreness to his left wrist and thumb. He claimed to Dr Dalton that he began to take buprenorphine for pain relief when he was denied Endone upon his release from Long Bay Hospital into the general prison population.
Upon examination Dr Dalton found that the Offender's spine and upper limbs were normal and he had good mobility in both hips and there was no evidence of muscle wasting in either lower limb and no evidence of neurological impairment other than minor numbness in relation to surgical scars. There was some moderate tenderness in the area of the left knee, however, the doctor considered the most significant finding was the reported pain in the right mid-thigh on weight bearing and when applying rotational stress to the leg.
Dr Dalton considered that the Offender's orthopaedic injuries to his left knee had stabilised, and recorded that the Offender was at risk of developing post-traumatic arthritis in his left knee. His most significant complaint when seen by Dr Dalton related to consistent pain in the right thigh at the site of one of the surgical procedures. The success of that procedure would be assessed upon further x-rays and a review by an orthopaedic specialist. If successful the doctor considered that over time he would suffer little pain upon weight bearing and that pain would eventually resolve.
Dr Dalton indicates in his report that the Offender would benefit from a more specific exercise programme targeted to his injuries.
Mr Sheehan records in his report that the Offender's pain from his injuries was initially treated with oxycodone and naloxone and later with Panadeine which he considered was inadequate. It was noted he had engaged in a physiotherapy program and at least as at the date of that report, he reported ongoing pain and difficulty in walking. He reported to Mr Bembrick in July of this year that he was still suffering a great deal of pain from his injuries.

[29]

Psychological/psychiatric history

Mr Sheehan estimated the Offender's intellectual functioning to be within the low-average range although no psychometric testing was administered. When interviewed by the psychologist his affect was primarily flat and dysphoric. The psychologist recorded the Offender reporting that he wished he was dead, but denied any specific suicidal ideation or self-harm behaviour.
Mr Sheehan recorded that the Offender denied any history of psychotic illness and did not endorse any symptoms consistent with psychosis. The Offender was noted as reporting persistent intrusive thoughts about the collision, accompanied by intense distress and a belief that he should be dead. Mr Sheehan considered that the nature of the collision and his described symptoms were consistent with Post Traumatic Stress Disorder. Mr Sheehan also considered that the Offender had a diagnosis of Alcohol Use Disorder in sustained remission in a controlled environment.
A report was obtained from Dr Schafer on the issue of whether the Offender had impaired cognitive functioning and if so what impact it may have on his ability to engage in rehabilitation while in custody, and on his ability to reintegrate into the community. Dr Shafer reviewed the documentation available from Westmead Hospital and the reports of Mr Sheehan and Dr Dalton which I have already referred to and also conducted an interview with the Offender on 16 September 2020 over a period of five hours.
Dr Schafer considered that the Offender's pre-morbid intellectual functioning was estimated to be in the low average range as was his current level of intellectual functioning according to IQ testing. The psychologist considered the IQ result to be one that should be interpreted with caution due to significant and unusual variability among component indices.
Dr Schafer considered that, on balance, the Offender suffered a mild traumatic brain injury due to the collision, although at the time of the assessment he did not demonstrate widespread impairment of his cognitive functioning. Dr Schafer considered that the Offender's history of alcohol dependence dating back to his early teens may have had an additional impact on his cognitive functioning. Dr Schafer did not consider that the Offender's cognitive difficulties would pose a barrier to engagement in rehabilitative programs.
The SAR records that since his incarceration the Offender has been assisted for his depressed state and sleeplessness by anti-depressant and mood stabilising medication.

[34]

The Offender's evidence

The Offender gave evidence before me and in doing so generally confirmed the accuracy and truthfulness of the things he had told the various report writers, including the difficult circumstances surrounding his early life and growing up. In the course of giving evidence, he described the events of the day of the offences up until he made the decision to drive, claiming to have no memory of getting into the car and driving from the hotel. His evidence was essentially that due to facing financial pressure, he went to the hotel that day to gamble on the poker machines in an attempt to win more money to alleviate his financial difficulties. He gave evidence that as he began to lose money, he began to drink and continued to drink throughout the day. The Offender described being a person who, prior to the collision, would not seek help from other persons to deal with his alcohol and gambling problems, but said he would in the future.
In terms of his remorse, he gave evidence consistent with what is contained in the reports that are before me, that he wishes that he had died in the collision, and of his regret for what has occurred. He described thinking about what occurred every day and night. In his evidence he said he would never drink again.
In his evidence he also described the injuries he suffered in the collision and the continuing pain he has experienced when walking. He also explained that he had turned to using non-prescribed buprenorphine in prison due to what he considered was Corrective Services' refusal to provide him with adequate pain medication. The Offender gave evidence that he sought that drug from other inmates and was aware that he should not have done so.
The Offender gave evidence that when first held in custody he received regular contact visits from family members, but since about mid-March this year, due to the Covid 19 Pandemic, he has received no in person visits, and does not know when that situation will change. His evidence was that he has essentially been held at Long Bay Gaol as he needed access to the hospital, and there have been no drug and alcohol programs available for him to engage in.
In his evidence in cross-examination he was taken to the content of a testimonial from his sister where she recounts a conversation with the Offender in which, when he was in his early twenties, he had given her advice about not consuming alcohol and the effects that can have on a person. He accepted that he had not followed his own advice in that regard.
I found the Offender generally to be an acceptable witness, noting that much of his evidence was confirmed by material contained in the documentary evidence that is before me.

[46]

Other general principles

I have considered the table and folder of cases provided by the parties during the sentence proceedings. No two cases are ever the same, but I have obtained some assistance in the task of assessing the level of objective seriousness of the offences, and the ultimate sentence to be imposed from a consideration of those cases. It was not suggested in submissions, and I do not consider, that the cases establish any sort of range of sentence for the offences committed here. As always, sentencing remains a task involving instinctive synthesis within the confines of accepted legal principles.
I have had regard to the objectives of sentencing referred to in s 3A of the Crimes Sentencing Procedure Act which include the need to impose adequate punishment, general and specific deterrence; protection of the community; denouncing the Offender's conduct; recognize the harm done to the victim/s and the community and rehabilitation of the Offender.
Nearly every member of our community is a road user in some capacity, whether as a driver, passenger or pedestrian. The majority of our community are drivers. People are entitled to use our roads without the risk of having someone drive in the condition the Offender was in, and in the manner he drove, on the day of the offences. The senseless road toll in this State remains at far too high a level, and alcohol and speed play a significant role in the level of deaths and serious injuries that occur on our roads. The need to condemn and denounce the type of conduct involved in these offences by way of the imposition of a significant sentence is high, in order to properly reflect general deterrence, i.e., to send the message to the community that such disgraceful and appalling conduct will be met with very significant punishment. It is necessary to impose a sentence of sufficient severity in order not only to deter this Offender from engaging in such conduct in the future, but to deter other members of our community
The maximum penalties have been taken into account as legislative guideposts in determining the appropriate sentence to impose.

[47]

The Sentence

I mentioned earlier I will use the aggregate sentencing provisions. I will firstly record the indicative sentences for each offence. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier.
The sentences Mr Moananu will hear me first announce are what are called indicative sentences. I will then announce an aggregate sentence which is the sentence and non-parole period that he will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence I will specify the date it starts from, the date it ends and the date when Mr Moananu is first eligible for parole.
The indicative sentence for the offence of the manslaughter of AH which I record is one of 8 ½ years imprisonment.
The indicative sentence for the offence of the manslaughter of Ms Gordon, having regard to the offences on the form 1, which I record, is one of 9 years imprisonment.
The indicative sentence for the offence of aggravated dangerous driving occasioning grievous bodily harm to Mr Hoang which I record is one of 4 ½ years imprisonment.
I impose an aggregate sentence of 15 years imprisonment with an aggregate non parole period of 10 years imprisonment. It commences on 29 September 2018 and expires on 28 September 2033. The non-parole period expires on 28 September 2028.
The earliest date Mr Moananu is eligible to be released to parole is the date of the expiry of the non-parole period which is 28 September 2028. Whether he is in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of his behaviour in prison in determining whether he is to be released then or on another date.
I impose on each offence the mandatory three years period of licence disqualification which will not commence to run under the legislation until the Offender is released from custody.
The offences on the s 166 certificate are withdrawn and dismissed.

R v Moananu

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Judgment (49 paragraphs)

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