R v Rayn Munro

Subjective Circumstances

I turn now to consider the offenders subjective case, and an issue that has arisen between the parties in relation to the weight to be given to his background of disadvantage.
The offender has not given evidence before me. However he has written a letter of apology to the Court. He is 19 years old and lives with his mother and three siblings on a 16 acre property about 20 minutes from Kempsey.
His mother is a home care worker, caring for disabled and elderly people. The offender assists financially and also helps by looking after his younger siblings. He takes them to their sporting activities and picks them up from school. The offender works at Advanced Plastering Solutions as an apprentice. He has worked in that capacity since July 2015 after finishing year 11. He will receive his craftsman certificate in the middle of 2019. He works full-time and is highly regarded by his employer and co-workers.
In his letter to the court the offender states that he was raised by his mother and stepfather. About three years ago when he was around 17 years old they divorced. About a year before their separation they were always fighting. His stepfather was abusive towards his mother verbally and physically. The offender witnessed one incident where there was physical violence. His stepfather pushed his mother to the ground and injured her shoulder. The incident was reported to police and eventually an apprehended domestic violence order was taken out.
His stepfather had many mood swings and the environment at home was not a happy one. On one occasion when the offender had taken refuge in his bedroom, he heard his mother and stepfather fighting. He heard his mother say: "don't touch me". He ran out of his room to protect her when he was confronted by his stepfather who grabbed him and they wrestled around for a while. His stepfather was bigger than him and the offender was only a teenager. I accept it was a scary experience for him.
It is clear from his letter that the offender is still troubled by what he witnessed. His mother separated from his biological father before he was born. He saw his father for the first time when he was about four or five years old. After that his father returned to his home country of Ghana. About one year ago his biological father was imprisoned. The offender was very upset when he heard about this news and visited his father in gaol twice. He expressed a desire to re-establish his relationship when his father upon his father's release.
Although his younger siblings received counselling and assistance following the separation and the family violence, this offender received no such counselling. He found himself associating with older boys and started taking drugs. His use of drugs affected his work. He felt he had no real goals, no priorities and didn't really have to worry about anyone but himself.
On the night of the offending conduct, the offender had drunk alcohol heavily and had consumed two MDMA pills. His recollection after that is fragmented. He remembers waking up in a police cell. He slowly pieced memories together. He was scared confused and felt guilty.
He has expressed his remorse in his letter to the court. He has come to realise that he could have seriously hurt or killed someone as a result of his supply of MDMA. He has been able to discuss the charges with his mother who has continued to be supportive of him. He is truly sorry for what he has done and has arranged counselling.
The offender has not given sworn evidence. What weight I give the contents of his letter is a matter for me to judge having regard to other evidence relied upon on his behalf.
Much of what is set out in his letter is supported by other evidence in the case. Ms McBurney, the offender's mother, has written a letter to the Court and given evidence in the proceedings. She confirms that she separated from the offender's biological father before the offender was born. His biological father was incarcerated for drug related matters last year and the offender has been to visit him in gaol.
The offender's mother re-partnered. The first 10 years or so of that relationship was supportive. However her ex-husband's behaviour started to become unpredictable. She suspects that he started using ice. Her ex-husband became more verbally and physically abusive. He threatened her and on occasions physically assaulted her. She gave evidence about one particular occasion where she was assaulted by her ex-husband and the offender was present and tried to protect her.
There were other occasions where her ex-husband was violent towards her. Although the offender was not present during those occasions he did become aware of them and an atmosphere of tension and fear descended upon the family home, so much so that the offender rejected an offer of sponsorship to play soccer in America because he felt he needed to stay home and look after his mother and siblings.
The offender was also the victim of threats of violence by his stepfather. His mother remembers him crying and asking her why he was being treated in that way by his stepfather.
Prior to what has been described in the letter as the "melt down", the offender excelled in soccer, motocross racing, boxing, breakdancing, surfing and all sport activities. Following exposure to this family violence, he stopped taking part in these activities. He became increasingly isolated and spent more time in his room.
Although the offender's stepfather left the family home once an AVO was imposed, he continued to return to the family home, a property which was shared with his parents. He continued to threaten the offender's mother. The threats including threatening to burn the house down with all of them in it. Her ex-partner continued to be aggressive and hostile. That conduct was witnessed on occasion by the offender. The offender was about 15 years old when the violence started and about 16 or 17 at its worst.
The offender's mother suspected that he might have been taking drugs although had no idea that he was supplying them. She gave evidence that she believed her son was numbing the pain of the last few years resulting from the violence in the home and the family breakdown.
Ms McBurney also confirmed that the offender has been to visit his biological father in gaol. When he found out that his father was incarcerated he was upset.
In cross-examination, Ms McBurney confirmed that the offender was about 17 when she separated from her ex-husband. He was 15 when the violence started. Following the imposition of the AVO, her ex-husband continued to come back to the family home harassing her and intimidating her. There were occasions when she locked herself inside the house and rang the domestic violence helpline. On some of those occasions the offender was present.
She confirmed that the offender was remorseful for his conduct and believes that spending a night in custody, seeing his own biological father in gaol and reflecting upon the potential consequences of his actions has been a sobering experience.
She continues to support her son as does the extended family. Of more recent times the offender's mother has made efforts to reconnect with her Indigenous culture, the Birpai culture. The offender has also been going through the process of cultural connection, which his mother believes will be a further supportive and strengthening experience for him.
The pre-sentence report confirms that the offender is working full-time. It also confirmed that he has made an appointment with the Grange Family Medical Centre for counselling.
He is assessed as a low risk of reoffending and it is recommended that no conditions other than a supervision condition are required to implement any supervision plan.
Dr McKeough also confirms that the offender was reviewed on 15 October and has been referred to local services for drug and alcohol counselling.
In addition to the evidence specific to the offender, Ms McMahon relies upon research outlining the impact upon children who are exposed to domestic violence. These academic writings and research conducted, for instance, by the Royal Commission into Family Violence (Victoria) in 2016, were objected to by the Crown. The objection was taken on the basis that the material says nothing about the particular circumstances relating to this offender nor does it provide an individual diagnosis as to the impact upon him of his exposure to domestic/family violence.
The material relied upon in this respect is relevant to the sentence proceedings in conjunction with the specific evidence adduced in particular from the offender's mother about the violence that he was exposed to and the observations she made as to his changed behaviour at a time proximate to the commission of the violence and proximate to his offending conduct.
The material focuses on the psychological and/or behavioural impacts experienced by children exposed to domestic violence. Those impacts include anxiety; trauma symptoms; antisocial behaviour; low social competence; low self-esteem; mood problems; loneliness and difficulties at school.
The Department of Parliamentary Services 2014 research paper "Domestic, family and sexual violence in Australia: an overview of the issues", adopts the psychological research set out in an article entitled: "Children's exposure to domestic violence in Australia: Trends and issues in crime and criminal justice" (No 419 Canberra: Australian Institute of Criminology), including the finding that children who are exposed to family violence, including witnessing family violence are more likely to experience negative impacts on their mental health and well-being and an increased likelihood of turning to substance abuse.
An article written by Campo, M entitled: "Children's exposure to domestic and family violence: key issues and responses", (CFCA Paper No 36), states that empirical evidence has found that exposure to domestic and family violence can affect a child's mental well-being and contribute to poor educational outcomes in a range of behavioural issues.
In 2016, the Royal Commission into Family Violence (Victoria) found that children experience family violence as direct victims or through witnessing it in the home. Family violence has severe short and long-term effect on children and young people. It can sometimes result in behavioural and mental health problems, disrupted schooling and intergenerational family violence. Children can be affected by family violence in a number of ways including feeling scared for those they love when they should feel safe; feeling anxious about their safety and that of their other family members; feeling a responsibility for the care and safety of the abused parent and/or siblings; feeling they are responsible for the violence or being unable to bring friends home or being socially marginalised because of the perpetrators controlling behaviour.
It is also well-established that children do not have to directly experience family violence, or even witness it, to be negatively affected by it. Examples of behaviour which may constitute family violence are provided in the Victorian Family Violence Protection Act, namely: overhearing threats of physical abuse by one family member towards another; seeing or hearing a family member being assaulted; comforting or providing assistance to a family member who has been physically abused by another family member; being present when police officers attend an incident involving physical abuse of a family member by another family member.
Children and young people who have experienced family violence are also at greater risk of drug and alcohol abuse and experiencing post-traumatic stress disorder as young people and young adults.
The research recommends that children and young people need a range of supports to assist them to deal with the impact of family violence.
I am satisfied that this material is relevant and admissible in the sentence proceedings. I make that finding because no issue has been taken with the credibility and reliability of the research. This is not a case where any of the opinions expressed have been challenged or sought to be challenged.
Secondly, in the decision of Perkins v R [2018] NSWCCA 62 her Honour Fullerton J relied upon the well-established academic and forensic research relating to the impact of exposure to family violence and development. Her Honour said: [99] First, the insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented. Recognition of these effects and their potential for lasting harm has found expression and application in a range of academic and forensic disciplines. In curial contexts, where the safety and welfare of a child is the court's primary concern, in particular where placement outside the family home is under consideration, the need to give full weight to the harm associated with family and domestic violence and the direct and indirect impact of that harm on a child is obvious. The potential impact of exposure to family and domestic violence is no less obvious when the subjective circumstances of an offender are assessed for sentencing purposes, irrespective of the age of the offender. The decision of the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 is authority for that approach. Other decisions of this Court exemplify it (see Daniels v R [2016] NSWCCA 35; Crowley v R [2017] NSWCCA 99; Linden v R [2017] NSWCCA 321). [100] In these cases exposure to family violence was recognised as one of the systemic factors which evidenced a level of social deprivation with the potential to sound in mitigation of sentence. As White JA noted at [77], the plurality in Bugmy did not say that deprivation will only be a mitigating factor lessening the moral culpability of the offender if it is causally linked to the offending but, rather, to adopt the approach of Gageler J at [56], the effects of social deprivation and its weight in the sentencing exercise is a matter for individual assessment.
There have been other examples where superior courts have relied upon psychological study and research which relates to the impact of various forms of deprivation and disadvantage on an individual's psychological emotional and cognitive functioning.
In R v Gareth Mullya Lewis [2014] NSWSC 1127, his Honour Justice Rothman relied upon a study conducted by Professor Baumeister entitled: "The inner dimensional social exclusion: intelligent thought and self-regulation among rejected persons", (2005) Journal of Personality and Social Psychology, 888, which set out the impact of social exclusion on an individual which includes a recognition that self-regulation and cognition are the most important in the processes to change in response to social exclusion.
In Kentwell v R (No 2) [2015] NSWCCA 96, Justice Rothman (with whom Bathurst CJ and McCallum J agreed) again relied upon the studies by Professor Baumeister, which make it clear that extreme social exclusion will likely result in antisocial behaviour and most likely result in criminal offending. His Honour acknowledged that there must be evidence to suggest the application of these principles and the effect of the exclusion in the particular case.
In the present case there is evidence from the offender's mother of the domestic violence she suffered at the hands of her ex-husband and the family violence that existed in the home by way of aggression, hostility and threatening behaviour perpetrated by her ex-husband. She has given evidence that whilst the offender was not always present to witness the physical violence, he was aware of it. He was so hypervigilant about the violence that he refused to take up a scholarship overseas in order to stay and protect her and his siblings. He was present on occasions when his stepfather returned to the premises acting in an aggressive and hostile manner and making threats towards the family.
It was at about the time that this violence was perpetrated that the offender became withdrawn and stopped engaging in the various sporting activities that he had been involved in.
The Crown submits that the evidence relating to the offender's exposure to domestic/family violence does not rise to a point where I would reduce his moral culpability. I reject that submission. True it is that some cases that come before this Court disclose a more severe history of domestic violence and more entrenched exposure to domestic/family violence. However, the fact that there are cases where the family violence to which an offender is exposed is more severe does not diminish the impact of the exposure to family violence in the particular case. All depends upon the evidence adduced.
The Crown also submits that no or little weight can be given to the offender's exposure to family violence in assessing his moral culpability having regard to the fact that this is an offence of supplying a prohibited drug which involved at least some planning.
In support of that submission the Crown relies upon the Court of Criminal Appeal decision of Taysavang v R; Lee v R [2017] NSWCCA 146.
That was an appeal against sentence imposed in the District Court for an offence of supplying a prohibited drug, namely 84 grams to an undercover officer. One of the grounds of appeal was the sentencing judge's failure to find that the applicant's moral culpability for the offence was low having regard to his disadvantaged background.
The Court of Criminal Appeal held there was no error on the part of the sentencing judge. In doing so the Court referred to a portion of paragraph [44] in Bugmy v The Queen (2013) 249 CLR 571 where the Court said: "….An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender".
In Taysavang, the Court observed that there was nothing in the evidence in that case to suggest that frustration on the part of the applicant gave rise to unconsidered action on his part. The Court said that: 'it was not an offence of a kind that could sensibly be regarded as flowing from dysfunctional tendencies subconsciously absorbed from experience within the offender's family in early childhood.'
As I understand it the Crown in this case calls in aid that statement to support a submission that I would give no or little weight to the history of disadvantage and deprivation when assessing the offenders' moral culpability.
The High Court in Bugmy, dealt, amongst other things, with the specific offending conduct involved in that case. In reference to that specific conduct the High Court made the statement referred by the Court of Criminal Appeal in Taysavang.
However, to rely solely on this portion of the judgment (Bugmy at [44]) ignores other important passages of the same judgment.
At paragraph 42, the Court, in referring to the submissions of the Director of Public Prosecutions on the appeal, said: "the Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case" (emphasis added).
Furthermore, the High Court held that the Director's concession should be accepted. The Court went on to say: "The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending".
The principle enunciated by the High Court in Bugmy cannot be limited in the way contended for by the Crown in the present case. The supply engaged in by the offender was not a sophisticated, well organised or highly planned operation.
The High Court did not limit the application of principle to offences that are wholly impulsive. Indeed, recognition that a background of deprivation may compromise a person's capacity to mature and to learn from experience may be as relevant to offending conduct that involves some planning as it is in cases of offences born of frustration or anger. All depends upon the circumstances of the individual case.
The plurality in Bugmy were not saying that a consideration of an offender's childhood of deprivation and disadvantage was optional: (see Ingrey v R [2016] NSWCCA 31 at [35]). What the plurality clearly had in mind was that there may be countervailing factors (such as specific deterrence or the protection of the community) which may reduce the weight to be given to a background of disadvantage or deprivation.
In R v Millwood [2012] NSWCCA 2, Simpson J said: "I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions."
This is not to say that such a person bears no moral responsibility. It is simply to say that an offender's dysfunctional childhood is one of the many factors to be taken into account in assessing that person's moral culpability and determining the appropriate penalty.
I am satisfied in this case that the offender was exposed to family violence which extended to witnessing threats, aggression and hostile behaviour on the part of his stepfather. Those threats included a threat to burn the house down with all of the family in it. On at least one occasion he witnessed his mother being physically assaulted by his stepfather. He became so concerned that he felt protective over his mother and siblings. He was so hypervigilant that he refused to take up a scholarship offered to him to play soccer in America. He became withdrawn. He stopped engaging in the various social and sporting activities that he had been involved in to that point.
The evidence establishes that the offender was adversely impacted upon by reason of his exposure to the family violence. Furthermore, and importantly, he was about 15 years old when the violence commenced. He was about 17 years old when his mother and stepfather separated. He committed this offence as a relatively young man of 19 years. I am satisfied in this case that his relative youth, immaturity and his exposure to family violence at a time proximate to his changing behaviour and use of drugs are matters that reduce his moral culpability.
Although his early childhood was not marred by family violence or deprivation, he was exposed to family violence at a time when he was still a child, during a period in his formative years when he was still developing. His mother's evidence establishes that his development was compromised having regard to the particular observations that she made in respect of his changed behaviour. If a child in development is compromised by reason of exposure to family violence, it cannot be said to be irrelevant to an assessment of his moral culpability notwithstanding the fact that the offence relates to the supply of drugs involving a degree of deliberation.
A compromised development may give rise to compromised maturity in adulthood and a compromised capacity for good judgement. A compromised development may continue to have relevance even in young adulthood whether or not the offence is born of frustration. The extent to which a history of disadvantage or deprivation reduces moral culpability will of course vary depending upon the circumstances of the individual case. Here, whilst there was some deliberation involved in the offending conduct, the offence was not sophisticated or particularly well organised criminal activity.
To submit that evidence of childhood disadvantage has no bearing on the assessment of moral culpability where an offence involves some deliberation or planning is not consistent with the statement of principle in Bugmy. I accept that an offender's deprived background does not have the same mitigatory relevance for all of the purposes of punishment. It may well be, for instance, that notwithstanding a deprived background, significant weight must be given to specific deterrence or the protection of the community where the offender has a long history of offending or where the objective seriousness of the offence is grave.
This is not a case however where the objective seriousness of the offence or the offenders subjective circumstances establish that specific deterrence or protection of the community call for a form of custodial punishment.
I have also had regard to the principles relevant to sentencing young offenders. In Tammer-Spence v R [2013] NSWCCA 297 Rothman J stated at [36]: "[36] In sentencing young offenders (or persons with a mental illness), the sentencing principles make clear that retribution may be of less significance and considerations of rehabilitation may be of more significance. Further, even in relation to retribution, the youth of an offender may be a mitigating factor. [37] Age, and the principles associated with sentencing youth, may be a factor when sentencing a 19 year old, as here, or, depending on maturity, even a 21 year old. Despite the fact that, here, the offences in question do not reflect aspects of immaturity, the Applicant may not have had the maturity to understand fully the consequences of his actions and to control his conduct accordingly.
In the decision of Miller v R [2015] NSWCCA 86, Schmidt J reiterated the well-recognised principle that the capacity for young people to reform and mold their character to conform to society's norms is usually greater than that of an older offender. In the result, considerable emphasis has been placed on the need to provide young offenders with the opportunity for rehabilitation. In that case, the appellant was 20 years old.
Her Honour went on to say that it is also well settled that the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person, to contribute to their breach of the law. Of course, the greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation.
I am satisfied that the offender has good prospects of rehabilitation having regard to his prior good character, his compliance with bail conditions, his expressions of remorse and his initiative in obtaining an appointment for counselling.
Having regard to the purposes of sentencing, I must take into account considerations of general deterrence and denunciation. I am satisfied that general deterrence and denunciation must be given some weight having regard to the highly dangerous and destructive impact of drugs on those who consume them and the community in general.
I am satisfied the weight to be given to specific deterrence should be moderated having regard to the offenders good prospects of rehabilitation, his compliance with his bail conditions and the absence of reoffending.
An assessment of the objective gravity of the offence and the offender's subjective case does not warrant a finding that the section 5 threshold is met. Accordingly I will proceed by way of a community correction order.

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Judgment (5 paragraphs)

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Cases Cited (13)