Citation: R v Michael William Grant; R v Kodney Douglas McNamara [2007] NSWDC 212
Court: District Court of New South Wales
Date: 3 May 2007
Judge(s): Nicholson SC DCJ
Background
In the early hours of Sunday 11 February 2007, two offenders, a 29-year-old man and a 20-year-old man, had been drinking for approximately twelve hours following a cricket grand final celebration at a hotel in Moree. At around 2am, a vehicle driven by a disqualified driver accelerated rapidly from a nearby parking spot, mounted the footpath, and drove approximately twenty metres directly toward a crowd of roughly twenty to thirty people, including the offenders, before returning to the road and fleeing at high speed.
The crowd made a reference to a local tragedy in which a young woman, Renae Subeni, had been killed years earlier when a driver deliberately drove into a crowd. That reference had particular resonance for one of the offenders, who had witnessed that earlier incident and whose siblings had been present. Both offenders, along with a third person, then drove to the motel where the vehicle's occupants were staying.
Upon arriving at the motel, the offenders confronted and assaulted the passenger of the vehicle before forcing entry into a motel unit and assaulting the driver. The offences committed over an approximately ten-minute period included aggravated break and enter and commit assault occasioning actual bodily harm (AOABH), malicious damage, and assault of the passenger in company.
Legal Issues
- What was the objective seriousness of the offences, taking into account the provocative conduct of the victims?
- How should the offenders' personal circumstances, including alcohol use, rehabilitation prospects, and the particular emotional context of the night, be weighed in sentencing?
- Whether suspended sentences, rather than full-time custody, were appropriate given the circumstances
- Whether special circumstances existed that would affect the non-parole period, had full-time imprisonment been imposed
Decision
Nicholson SC DCJ assessed the objective criminality of the offences as falling within the mid-range of seriousness. The court accepted that the dangerous driving conduct of the victims was deeply provocative in the context of the local community's collective trauma arising from the Renae Subeni tragedy, and that this context had inflamed the offenders' responses. However, the court was firm that this context explained rather than excused the violence, describing the conduct as "vigilantism of the worst kind."
The court weighed each offender's personal circumstances carefully. Both had significant alcohol issues that contributed to their inability to respond appropriately to the provocation. Each demonstrated strong prospects for rehabilitation, a factor the court treated as weighty in mitigation. The guilty pleas also attracted appropriate discounts.
Having assessed all of these factors, the court determined that full-time imprisonment was not warranted. Each offender received a sentence of twenty months imprisonment, suspended on condition of entering into a good behaviour bond for the same period. Fines of $1,000 each were imposed for the assault and malicious damage charges. The court expressly declined to set a non-parole period, noting it was not compelled to do so, but recorded that had full-time custody been imposed, special circumstances would have been found, resulting in a longer than usual parole period.
Orders Made
Michael Grant:
- AOABH (assault of Glenn Withers in company): fined $1,000
- Malicious damage (to LandCruiser motor vehicle): fined $1,000
- Aggravated break and enter and commit AOABH (assault of Jayden Byron in company): 20 months imprisonment, suspended on entry into a 20-month good behaviour bond
Kodney McNamara:
- AOABH (assault of Glenn Withers in company): fined $1,000
- Malicious damage (to motel property): fined $1,000
- Aggravated break and enter and commit AOABH (assault of Jayden Byron in company): 20 months imprisonment, suspended on entry into a 20-month good behaviour bond
Key Takeaways
- A provocative act by victims, even one as serious as dangerous driving toward a crowd, does not justify a vigilante assault response; it may inform the sentencing court's assessment of objective seriousness without reducing criminal culpability to below the mid-range.
- Strong rehabilitation prospects, combined with guilty pleas and relevant personal history, can weigh sufficiently in mitigation to support a suspended sentence rather than full-time custody for mid-range aggravated break and enter offences.
- The District Court confirmed that it retains a fact-finding role independent of agreed facts tendered by the parties; an agreed statement of facts limits the material available to the court but does not relieve the sentencing judge of the obligation to make findings from that material.
- Where full-time custody is not ultimately imposed, a sentencing court may decline to set a non-parole period, though it may record what its approach would have been had imprisonment been ordered.
- Protracted alcohol consumption over many hours was treated as a relevant contextual circumstance affecting the offenders' capacity to manage a highly charged situation, rather than an aggravating factor in isolation.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1989 (NSW)
Cases:
- Gladue v The Queen [1999] 1 SCR 688 (Supreme Court of Canada, cited on the purpose and individualised nature of sentencing)
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby (1977) NSWLR 597
- R v Hayes (1984) 1 NSWLR 740