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District Court 1 November 2018

R v Rayn Munro

[2018] NSWDC 331

DrugsDomestic & family violence
REDUCTION IN MORAL CULPABILITY

Citation: R v Rayn Munro [2018] NSWDC 331
Court: District Court of New South Wales
Date: 1 November 2018
Judge(s): DCJ Yehia SC

Background

A 19-year-old apprentice plasterer pleaded guilty to one count of supplying 2.34 grams of MDMA, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. Police found him unconscious on a bench outside a hotel in Port Macquarie in the early hours of 22 April 2018, severely affected by drugs and alcohol. A search of his wallet revealed 23 capsules of MDMA, and his mobile phone contained text messages consistent with low-level dealing.

The offender had no relevant criminal history. His subjective case centred on a period of family violence he had witnessed between the ages of approximately 15 and 17, during which his stepfather subjected his mother to physical and verbal abuse and made threats against the entire family, including a threat to burn down the house.

The central sentencing dispute was whether that background of family violence reduced the offender's moral culpability for an offence involving at least some deliberation, and whether the matter warranted full-time custody, an Intensive Correction Order, or a Community Correction Order.

Legal Issues

  • Whether academic research and literature about the impact of family violence on children was relevant and admissible in sentence proceedings
  • Whether exposure to family violence during adolescence reduced the offender's moral culpability for a drug supply offence involving some planning
  • Whether the principle in Bugmy v The Queen (2013) 249 CLR 571 is limited to offences that are wholly impulsive, or extends to offences involving a degree of deliberation
  • Whether the s 5 threshold for a term of imprisonment was met, and if so, what form of sentence was appropriate

Decision

Issue 1: Admissibility of family violence research

DCJ Yehia admitted academic and governmental research, including findings from the 2016 Victorian Royal Commission into Family Violence, into the sentence proceedings. The Crown objected on the basis that the material did not address the offender's individual circumstances. The court rejected that objection, noting that the material had not been challenged as to its credibility or reliability, and that courts had previously relied on comparable academic research in sentencing contexts (at [49]-[53]). The court found the research was relevant when considered alongside the specific evidence from the offender's mother about his changed behaviour following the family violence (at [41]).

Issue 2: Effect of family violence on moral culpability

The Crown submitted that little or no weight should be given to the offender's exposure to family violence, relying on passages from Bugmy and Taysavang v R; Lee v R [2017] NSWCCA 146 to argue that disadvantage is not relevant where an offence involves some planning. DCJ Yehia rejected that submission (at [56]-[68]). The court held that the High Court in Bugmy did not limit the mitigating relevance of childhood deprivation to wholly impulsive offences. A compromised development may give rise to compromised maturity and impaired judgement in young adulthood regardless of whether an offence involves an element of deliberation (at [75]).

Issue 3: Application to the facts

The court was satisfied that the offender had been exposed to family violence from approximately age 15, including witnessing a physical assault on his mother, overhearing threats, and becoming so protective of his family that he declined an overseas soccer scholarship (at [72]). His mother's evidence established observable changes in his behaviour proximate to the violence and to his drug use. The court found that his relative youth, immaturity, and exposure to family violence at a formative stage of development reduced his moral culpability (at [73]-[74]).

Issue 4: Form of sentence

Weighing the below-mid-range objective seriousness, the offender's good character, his good prospects of rehabilitation, compliance with bail, expressions of remorse, and the reduced moral culpability arising from his background, the court was not satisfied that the s 5 threshold for a term of imprisonment was met (at [84]). A Community Correction Order for 18 months was imposed rather than a custodial or intensive correction order (at [84]-[86]).

Orders Made

  • The offender was convicted of one count of supplying a prohibited drug (MDMA)
  • A Community Correction Order was imposed for a period of 18 months, commencing 1 November 2018, pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999
  • Standard conditions applied for the duration of the order
  • An additional condition was imposed (supervision)
  • The offender was directed to attend the Community Corrections office at Kempsey within seven days
  • A related matter listed as Sequence 2 on the s 166 certificate was withdrawn and dismissed

Key Takeaways

  • Academic and governmental research on the psychological impacts of family violence on children was held admissible in sentence proceedings where its credibility was not challenged, provided it was considered alongside specific evidence about the individual offender's circumstances (at [49]-[53]).

  • The District Court rejected a narrow reading of Bugmy v The Queen that would confine the mitigating relevance of childhood deprivation to impulsive offences. Where some deliberation is present but the offending is unsophisticated and low-level, a deprived or violent background can still reduce an offender's moral culpability (at [67]-[68]).

  • Adolescent exposure to family violence, even where it is not the most severe presented to the courts and even where it begins in mid-adolescence rather than early childhood, can reduce moral culpability for subsequent offending if supported by evidence of a proximate impact on development and behaviour (at [56], [73]-[74]).

  • Consistent with established principles for young offenders, rehabilitation received significant weight where the offender was 19 years old, had good prospects of reform, had complied with bail, and had taken steps to obtain counselling (at [79]-[81]).

  • Childhood disadvantage does not carry uniform mitigatory weight across all sentencing purposes. The court confirmed that countervailing factors such as specific deterrence and community protection may diminish that weight, particularly where objective seriousness is grave or the offender has a significant prior history (at [69], [76]).

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985, s 25(1).
- Family Violence Protection Act 2008 (Vic)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Kentwell v R (No 2) [2015] NSWCCA 96
- Miller v R [2015] NSWCCA 86
- Perkins v R [2018] NSWCCA 62
- R v Gareth Mullya Lewis [2014] NSWSC 1127
- R v Millwood [2012] NSWCCA 2
- Ingrey v R [2016] NSWCCA 31 at [35]
- Tammer-Spence v R [2013] NSWCCA 297
- Taysavang v R; Lee v R [2017] NSWCCA 146