R v Munro

Victim Impact Statement

1. The Court has before it a victim impact statement dated 2 October 2019 from Mr Maurice Smith, the father of Ms Smith. He described Ms Smith as his favourite child, who was his best friend. As a consequence of the tragedy, he now has responsibility and care for four of the nine children of the relationship, and is seeking to gain custody of two of the younger boys as well. This has had some impact on his and his wife's finances and routine, but he acknowledges "we wouldn't have it any other way."
2. Mr Smith states that since the accident the family has been torn apart, and the stress of losing a daughter and a mother has had a serious impact on everyone's life. In particular, he refers to the impact that the accident has had on the 17 year old son, whose birthday was celebrated on 2 July, and who is now constantly reminded of the accident every year.
3. Mr Smith refers to the challenges he has faced raising the children. He acknowledges that while Ms Smith will never come back, they are trying to move forward and raise the children to be kind human beings, who are mindful and respected citizens who respect the law. He refers to the continuing pain and suffering being endured in ways he cannot place into words.
4. It is clear that this accident has had a devastating impact on all concerned. Regrettably it is the kind of impact that the Court is all too familiar in cases of this kind. Nevertheless it is important that the Court be reminded of it.
5. The Court takes the statement into account in the way the law provides.
6. The Crown made no submission that the offending was aggravated within the terms of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). [5]

Objective Seriousness

1. The offender himself did not give evidence.
2. It was accepted by both parties that the only circumstance of aggravation was that set out in s 52A(7)(b) of the 1900 Act, being that the offender drove the vehicle at a speed more than 45km/h above the speed limit applicable to that length of road. In particular I give no consideration to the evidence of the offender's consumption of illicit substances in circumstances where Dr Pearl was unable to form a firm opinion that the offender was under the influence of any drug detected in his blood at the time of driving.
3. In a report prepared by Dr Travis Wearn, psychologist, the offender is recorded as stating that Ms Smith was at his house to see his eldest son, whose birthday was on the following day. He stated that Ms Smith had earlier asked him to go to her house to have a look at her car, which was running rough. The offender told Dr Wearn that he fell asleep behind the wheel along the way and that his memory surrounding the events was limited.
4. In considering the objective circumstances of the case, (and in particular the Offender's moral culpability), it was acknowledged that none of the aggravating features that frequently occur in matters of this kind were present, except that of speed which is an intrinsic aspect of the s 52A (2) offence. In particular, there is no evidence as to the length of the journey in which the offender was said to be driving at an excessive speed or the time period involved. Whilst the offender is recorded as believing that the accident was brought on by fatigue, there is no evidence that this was a consequence of sleep deprivation or how this led the vehicle to travel at the speed indicated. The absence of planning or organisation was cited as a mitigating factor pursuant to s 21A (3)(a) of the 1999 Act.
5. The Defence drew attention to the fact that the time and location of the road, and that the offender was not seen by a witness until around 5:30am on 2 July 2018, as evidence that few, if any, other persons were put at risk.
6. The Defence accepted that the case did not involve momentary inattention or misjudgement. The Defence nevertheless submitted that the offence fell towards the lower end of objective seriousness as the moral culpability was not high.
7. The Crown submitted that the Court is unable to conclude as to the number of persons who might have been present in the vicinity. It was acknowledged that the accident occurred in the early hours of the morning. Further the Crown conceded that the offending was largely spontaneous, and it did not involve any planning or organisation.
8. The Crown submitted that the objective seriousness fell below mid-range
9. Offences under s 52A (2) of the 1900 Act are serious as they all entail significant issues of public safety and the death of a human being. However the offence can embrace a range of circumstances.
10. Taking account of the time, location and circumstances of the accident, I am satisfied that few if any other persons were put at risk during this driving episode, apart from those in the vehicle at the time. I accept that the offending was largely spontaneous. I accept there was an absence of planning and organisation in the offending, although that is commonly the case with offences under s 52A. [6]
11. The offender's moral culpability is limited, to the extent able to be determined by the agreed facts. It is not as low as to amount to momentary inadvertence or inattention but not as high as to amount to an abandonment of responsibility. I cannot be satisfied beyond reasonable doubt as to the precise circumstances which led the offender to drive at the speed indicated, although I accept that he did so leading the vehicle to the tragic path it took. The speed estimated being "no less than 152 km" is above the aggravating factor threshold but not substantially so and no other aggravating factors are identified. Overall, I would find the moral culpability falling towards the lower end of the spectrum.
12. Bearing in mind all of the circumstances, I would also accept that the offence falls towards the low range of objective seriousness of offending embraced by s 52A(2).
13. In relation to the violation of the AVO by attending on Ms Smith's residence, I accept that this was consensual contact that Ms Smith sanctioned. In the circumstances I, am satisfied that that this matter falls into the lower end of objective seriousness of offences embraced by s 14(1) of the 2007 Act.

Breach of an AVO

1. The offender was subject to an AVO at the time of the offending, as earlier described. Both parties accepted that this was a form of conditional liberty within the terms of s 21A(2)(j) of the 1999 Act . [7]
2. It was submitted, however, that this matter is to be given little weight, as the offender was not precluded within the terms of the AVO from making contact and being in the presence of Ms Smith. Rather, it simply precluded him from going into any place where she lived.
3. The offender was prohibited by the AVO from attending "any place where Amy Lee Smith lives." Whilst the accused violated the AVO by attending on the premises of Ms Smith at Rand, his further contact with Ms Smith was not prohibited.
4. Accordingly, whilst I accept that the offender was subject of conditional liberty at the time of the offence under s 52 A (2) of the 1900 Act, this matter carries little weight on sentence.

Plea of guilty

1. It is acknowledged that the offender entered a plea of guilty in the Local Court, and accordingly he is to receive a 25% discount on sentence. [8]

Prior Good Character

1. The Offender does not have any prior convictions. Whilst he does have some traffic antecedents, there is only one prior matter involving travelling at speed in 2014 which was dealt with by way of a penalty notice.
2. The Defence submitted that I would find the offender is of prior good character, [9] which together with his lack of previous convictions should be taken into account in mitigation. [10] The Crown did not submit otherwise and I accept this submission.

Remorse

1. In addition to his plea of guilty, the Offender acknowledged to Dr Wearne that he felt responsible and was the reason why Ms Smith lost her life. He stated that he wished he could take it all back, and wishes he had stayed home.
2. Dr Wearne records that the offender experiences depression and anxiety due to the accident and the guilt he feels over the death of his partner. He is recorded as stating "I am pretty bad at the moment, mental health wise, I think about it all the time… I can't switch off… I feel for the kids… I get quite upset and break down every day. I have to deal with it for the rest of my life."
3. The Court also has before it a number of testimonials written by the offender's family members which acknowledge the fact that the offender mourns the passing of Ms Smith and the impact that this has had on others.
4. Notwithstanding the reservations that ordinarily attaches to out of court statements to third parties, [11] in the circumstances I am satisfied that remorse has been established. [12]

Offender's Social Background

1. According to Dr Wearn's report, the offender was born and raised in Frankston, Victoria and has four brothers and one sister. He reported a close relationship with his siblings. His father was reported to be a heavy drinker, and both his parents were frequent cannabis smokers. However, he did not believe that his parents' substance abuse had a negative impact on his development or upbringing.
2. The offender stated that his mother and father separated when he was 13 years of age. The offender subsequently lived with his mother, and he described a close and loving relationship with her throughout his life. The offender denied having a close relationship with his father, citing his father's night shift roster and subsequent daytime somnolence as the reason for their lack of relationship.
3. The offender stated that he believed that his parent's separation and his father's departure from their family home was the catalyst for his drug and alcohol use, as he was not held accountable for his actions.

Education and Employment

1. Dr Wearn recorded that the offender completed several years of formal education and attended Aldercourt Primary School and Monterey Secondary College. He described himself as being a below average student, but disclosed that he learnt to read and write but had trouble concentrating and understanding academic content. He ultimately left school to enter the work force at age 15.
2. The offender's employment history is noted to be predominately manual labour jobs. He worked in various short term physical jobs before working on a fishing boat for approximately four to five years, from 17 years of age. He subsequently worked as a truck driver in Queensland for two years, before moving back to Victoria where he worked in a Pizza Box factory. His most recent employment was as a farm hand on a farm in New South Wales. He is recorded to have been employed in a full time capacity and had no difficulties in managing a full time work load.
3. Dr Wearn noted that the offender was positive about re-joining the work force in future and cited truck driving and fishing as his two main areas of interest. He has not engaged with further education and training since leaving high school.

Substance Abuse

1. The offender started drinking alcohol from age 13 and described a daily pattern of use in the years that followed. His usage decreased to every two to three days at the age of 16 when he met his partner, and further decreased to a weekend pattern of binge drinking after he became a father. He is recorded as rarely consuming alcohol in the past five years due to his preference for methamphetamine.
2. The offender started to smoke cannabis at the age of 15, but has not smoked for the last year.
3. The offender described gravitating towards negative peer influences, stating that he tended to socialise with those associated with drugs, alcohol and crime. However, he disclosed that the birth of his son motivated him to curtail his involvement with antisocial peers.
4. He stated that he started to smoke methamphetamines at the age of 30, which escalated. His last use was several days before the subject accident. He never completed treatment for his substance abuse, and denied experiencing symptoms of withdrawals. He is recorded by Dr Wearn as willing to engage in treatment. He stated that his main social relationships are with his family.
5. The offender met Ms Smith at approximately 16 years of age, and their first child was born when he was aged 17. Ms Smith and the offender since had eight additional children together, being six boys and three girls in total. The children are currently aged between 2 and 17.
6. No submission was advanced that the offender's background was such that it gave rise to the principles set out in Bugmy v R. [13]

Medical and psychiatric history

1. The offender denied any history of neurological concern and did not sustain traumatic brain injury from the subject accident. Dr Wearn records him as having experiencing anxiety and depression since the accident, and notes that he has been prescribed Seroquel since his incarceration to assist with sleep.
2. The offender has had two previous experiences with psychological therapy whilst in custody and acknowledged that it was good to "talk over". He was receptive to engaging with psychological support in the future and denied a history of suicidal thoughts or self-harm.
3. The report further records that the offender will benefit from a pre-treatment program of motivational interviewing, and referral to a clinical psychologist who has experience working with individuals with adjustment, trauma, grief and stress-disorder type presentations. Additionally, the offender should be monitored for deterioration of his mental health whilst he is in custody.

Extra Curial Punishment

1. The Defence submitted that some consideration should be made for what was described as the extra curial punishment that the offender has suffered as a consequence of the loss of Ms Smith, who was his wife. In essence this was includes the self-punishment that the offender is said to have endured since the subject collision.
2. Cited in support was R v Howcher, [14] where Hulme J noted that: Despite the reference in R v Whyte to the victim being a stranger and the extent of injury to the driver or persons known to him there is no discussion in that case of the significance of any such event. Nor as a matter of logic does it follow that the fact the victim is not a stranger of itself justify leniency. Rather is it a case that the offender's relationship with the victim may be some indication of extra-curial suffering flowing from the occurrence.
3. The Defence stated however that it was not just the fact of the relationship between the offender and Ms Smith that is relevant, but it is the effect or the impact of her loss that is relevant, and the shame felt by the offender knowing that he has robbed Ms Smith of her life. [15]
4. In R v Koosmen, [16] Smart AJ stated at [32]: Dhanhoa [2000] NSWCCA 257 is authority for the proposition that the effect of the death in the accident on the offender and self punishment (the self inflicted sense of shame and guilt) were often highly relevant factors, that the weight to be given to these depended on the circumstances and that different judges may give different weight to those factors. Where the facts reveal gross moral culpability judges should be wary of attaching too much weight to considerations of self punishment. Genuine remorse and self punishment do not compensate for or balance out gross moral culpability.
5. The Crown, for its part, referred to the decision in R v Daetz. [17]
6. As I have indicated earlier, I accept that the offender is remorseful for his actions. Beyond that, I accept that he suffers anxiety and depression following the accident and will require referral to a clinical psychologist who has experience working with individuals with adjustment, trauma, grief and stress-disorder type presentations. Such treatment has been limited thus far, although records confirm that he has been prescribed Seroquil.
7. This is not a case where the offender has demonstrated gross moral culpability. Accordingly I am satisfied that it is appropriate to take into account the extra curial impact arising from the death of Ms Smith reducing the need for general and specific deterrence.

Hardship to the Offender's Family

1. The Defence argued that a lengthy sentence of imprisonment would cause significant harm to the large family of the offender. It was submitted that the circumstances amounted to exceptional, as described in R v Edwards. [18]
2. The Defence specifically identified that four of the offender's children were residing with the parents of Ms Smith, three of them are with the offender's mother, and two younger boys are with the offender's brothers. It was contended that some sympathy for the underlying situation should be given in the circumstances.
3. It was submitted that the fact that the circumstances are exceptional may bear on the length of the non-parole period, or otherwise might permit some adjustment to the ratio of the non-parole period to the total sentence.
4. In my view, the circumstances do not amount to "wholly" or "highly" exceptional within the terms of R v Edwards.
5. In this instance, I have note that the children were already separated prior to the offender's arrest and incarceration, no doubt due to his capacity to be able to care for them and to maintain employment. Dr Wearn's report indicates that the offender intends to resume employment following his release.
6. However, I accept that there is some impact on the offender and his children brought about by his incarceration. This is generally inevitable.
7. There is, however, a large number of children and their care has been divided amongst family members on both sides of the parentage living some distances apart. Whilst in custody, some of the children have had access to their father. It is not clear what contact they have had with each other. This is a matter to be taken into account in general way, as part of the matrix in selecting the appropriate sentence and in relation to the length of the non-parole period. [19]

Prospects of Rehabilitation and Likelihood of Reoffending

1. The Crown submitted that in light of the offender's prior drug use the Court would be guarded as to the offender's prospects of rehabilitation. The Defence submitted that the offender has good prospects of rehabilitation.
2. Dr Wearn records that the offender is performing within normal limits across all areas of his intellectual functioning. He states that the offender's criminogenic treatment and management needs are minimal, although he will benefit from treatment to deal with his poorly controlled substance use.
3. The offender appears to have to have good family support. He has a strong working history despite his limited education and skills, and appears to have some insight into his illicit drug use behaviours. There is no evidence that he has consumed illicit substances in custody and Dr Wearn records that the negative impact of methamphetamine as the reason for his abstinence.
4. Dr Wearn acknowledges nonetheless that the offender will benefit in a program of relapse prevention to better manage his substance abuse in the real world. The offender for his part was reported as being positive, stating "Can't see any harm in trying."
5. Taking all these matters into account I am satisfied overall that the offender does have reasonable prospects of rehabilitation, and subject to availing himself of recommended treatment, a low likelihood of reoffending.

Sentence

1. Both parties accepted that the threshold in s 5(1) of the 1999 Act has been met and no penalty other than imprisonment is appropriate.
2. The offender needs to be punished, made accountable and his conduct denounced within the parameters of an overall proportionate sentence.
3. The sentence needs to provide for general deterrence moderated to some extent in recognition of the extra curial impact the offender has endured. I accept that the offender has to a large extent already been specifically deterred.
4. No sentence can ever properly account for the tragedy that resulted in the loss of Amy Smith. Her life has been needlessly lost forever. Her father Mr Smith and his family no doubt have a strong sense of grievance towards the offender. However neither desires for vengeance nor expressions of sympathy find a place in the exercise of sentencing discretion. Yet the sentence must acknowledge the harm that the offender's actions have brought about.
5. This will be the offender's first term in custody. In light of that fact, recognising the need to see the offender avails himself of the treatment recommended by Dr Wearn, the reasonable prospects of rehabilitation and the need for a longer period to assist in reintergration I am satisfied that a finding of special circumstances is justified
6. In setting the appropriate sentence I am mindful of the guideline judgment in R v Whyte [20] as a check or guide but not as a rule. [21]
7. In R v Whyte Spigelman CJ held that where the offender's moral culpability was high, a fulltime custodial head sentence of less than three years in the case of death would not generally be inappropriate. His Honour further acknowledged that in the case of the aggravated version of the offence under s 25A(2) an appropriate increment is required to reflect the higher maximum penalty and what will generally be a higher level of moral culpability. [22]
8. In this case both parties acknowledged that the typical case there described varied from the instant case, in that the offender at age 35 is not a young offender, the victim was not a stranger and the plea was not of limited utilitarian value. Moreover, I have not found the moral culpability to be at the higher level.
9. My attention was also drawn during submissions to the sentencing statistics published on the Judicial Information Research Service and a number of authorities including R v Foster, [23] R v Berg, [24] R v Tzanis, [25] R v Errington, [26] R v Gonzales [27] and Rosenthal v R. [28] I have read this material together with other cases referred to on the Public Defenders' sentencing table. Ultimately each case including this one rests on its own factual circumstances.
10. The offender has been in custody since 18 March 2019. I propose to commence the sentence from that date.
11. The offender is convicted and taking into account the discount for the plea of guilty he is sentenced as follows: 1. In respect of the offence under s 52A (2) of the 1900 Act, he is sentenced to a non-parole term of 16 months to date from 18 March 2019 and to expire on 17 July 2020. 2. Thereafter he is to serve an additional term of 20 months imprisonment from 18 July 2020 to 17 March 2022, during which he is to be released to parole. 3. The offender's overall sentence is a term of 3 years imprisonment. 4. The offender's earliest release date is 17 July 2020. 5. The offender is disqualified from driving for the statutory period of 3 years less any time the offender has hitherto been suspended. 6. In respect of the offence under the s 14 of the 2007 Act, the offender's conviction is without penalty pursuant to s 10A of the 1999 Act.

Endnotes

1. the 1900 Act.
2. the 2007 Act.
3. Dealt with pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).
4. AVO.
5. the 1999 Act
6. R v Elkassir [2013] NSWCCA 181at [30]
7. R v Archer [2017] NSWCCA 151
8. ss 22 A(3)(k) and 22 of the 1999 Act; R v Thomas; R v Houlton (2000) 49 NSWLR 383.
9. s 21 A (3) (f) of the 1999 Act
10. S 21 A (3) (e) of the 1999 Act
11. Imbornone v R [2017] NSWCCA 144 at [52]
12. s 21A(3)(i) of the 1999 Act
13. (2013) 249 CLR 571.
14. (2004) 146 A Crim R 371 at [16]
15. See R v Hughes (2018) 185 A Crim R 155 at [23].See also R v Elkassir [2013] NSWCCA 181at [62]-[64]
16. [2004] NSWCCA 359
17. [2003] NSWCCA 216 at [62].
18. (1996) 90 A Crim R 510 at 516.
19. R v Bednarz [2000] NSWCCA 553 at [51]-[52]; Elsobky v R [2016] NSWCCA 168 at [17]-[21]; Dipangkear v R [2010] NSWCCA 156 at [29]-[40].
20. (2002) 55 NSWLR 252
21. At [232]
22. At [230]
23. [2002] NSWCCA 215
24. [2004] NSWCCA 300
25. [2005] NSWCCA 274
26. [2005] NSWCCA348
27. [2006] NSWCCA 4
28. [2008] NSWCCA 149 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: 12 December 2019