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District Court 6 December 2019

R v Munro

[2019] NSWDC 743

HomicideTraffic & drivingDomestic & family violence

Citation: R v Munro [2019] NSWDC 743
Court: District Court of NSW
Date: 6 December 2019
Judge: Hatzistergos DCJ

Background

The offender pleaded guilty to dangerous driving causing death under s 52A(2) of the Crimes Act 1900 (NSW) and breach of an Apprehended Violence Order (AVO) under s 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The AVO, made in April 2018, prohibited the offender from attending any premises where his former partner, Ms Amy Lee Smith, lived.

In the early hours of 2 July 2018, the offender was driving Ms Smith home along Corowa Road in regional New South Wales. His vehicle left the roadway, became airborne at a speed of no less than 152 km/h in a 100 km/h zone, travelled across a paddock, and collided violently with a tree. Ms Smith sustained severe injuries and died on 6 July 2018. The offender was found at the scene by a passing motorist around 5:30 am.

The offender's blood later tested positive for methylamphetamine and amphetamine, though an expert could not confirm he was under the influence at the time of driving. He told a psychologist he had fallen asleep at the wheel, though no firm conclusion could be drawn about the precise cause of the accident.

Legal Issues

  • What was the appropriate sentence for the s 52A(2) offence, having regard to objective seriousness, the offender's moral culpability, and relevant mitigating factors?
  • What weight should be given to the offender's drug use, given expert uncertainty about impairment at the time of driving?
  • Whether the breach of the AVO warranted a custodial penalty, given the contact was consensual and sanctioned by the victim?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio?
  • What weight should be given to extra-curial punishment arising from the offender's grief and loss following Ms Smith's death?
  • Whether the impact of imprisonment on the offender's nine children constituted "wholly" or "highly" exceptional circumstances within the meaning of R v Edwards?

Decision

Issue 1: Objective seriousness of the dangerous driving offence

The court found that the offence fell towards the lower end of objective seriousness within the range captured by s 52A(2) (at [35]). The speed of no less than 152 km/h triggered the statutory aggravating factor under s 52A(7)(b), but the court noted this was above the threshold of 45 km/h over the limit without being substantially so, and no other aggravating factors were established (at [34]). The court accepted that few if any other persons were put at risk, the offending was largely spontaneous, and there was no planning or organisation involved (at [33]-[35]).

Issue 2: Moral culpability and drug use

The court declined to treat the drug findings as an aggravating consideration, given that the expert could not form a firm opinion that the offender was under the influence at the time of driving (at [25]). The court found the offender's moral culpability fell towards the lower end of the spectrum, as the precise circumstances leading to the excessive speed could not be determined beyond reasonable doubt (at [34]). The court accepted the offender's account of fatigue playing a role, while noting there was no corroborating evidence of sleep deprivation (at [27]).

Issue 3: The AVO breach

The court found the AVO breach fell at the lower end of objective seriousness, accepting that the contact with Ms Smith was consensual and she had sanctioned it (at [36]). The offender was subject to conditional liberty at the time of the s 52A(2) offence, but the court gave this little weight in sentencing because the AVO only prohibited him from attending her premises, not from being in her company (at [38]-[40]).

Issue 4: Mitigating factors, extra-curial punishment, and special circumstances

The court accepted genuine remorse, supported by the offender's acknowledgment of responsibility to the psychologist and expressions of grief (at [44]-[47]). The grief, depression, and anxiety the offender experienced following Ms Smith's death constituted extra-curial punishment, reducing the need for general and specific deterrence (at [69]). The impact on the offender's nine children, while acknowledged, did not reach the "wholly" or "highly" exceptional threshold required under R v Edwards, though it was taken into account as part of the broader sentencing matrix (at [73]-[76]). Special circumstances were established, warranting an extended parole period, given the offender's first time in custody, reasonable prospects of rehabilitation, and the need for recommended psychological treatment and community reintegration (at [86]).

Orders Made

  • For the offence under s 52A(2) of the Crimes Act 1900 (NSW): sentenced to a total term of 3 years imprisonment, comprising a non-parole period of 16 months commencing 18 March 2019 and expiring 17 July 2020, followed by an additional term of 20 months on parole from 18 July 2020 to 17 March 2022.
  • Earliest release date: 17 July 2020.
  • Disqualified from driving for the statutory period of 3 years, less any period of prior suspension.
  • For the offence under s 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW): convicted without penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Key Takeaways

  • Where an expert cannot form a firm opinion that an offender was under the influence of drugs at the time of driving, the drug findings do not constitute an aggravating feature for the purposes of sentencing for dangerous driving causing death (at [25]).

  • Moral culpability for a s 52A(2) offence falls towards the lower end of the spectrum where the precise circumstances causing excessive speed cannot be determined beyond reasonable doubt, the offending was spontaneous, and no aggravating factors beyond the statutory speed threshold are present (at [34]-[35]).

  • The District Court applied the principle from R v Howcher and R v Koosmen that an offender's genuine grief and psychological suffering following the death of a victim they caused can constitute extra-curial punishment, moderating the need for general and specific deterrence, even where the victim was the offender's former partner (at [68]-[69]).

  • A breach of an AVO may be sentenced without penalty under s 10A where the contact was consensual and sanctioned by the protected person, and the breach was confined to attending the protected person's premises rather than broader prohibited conduct (at [36], [39]).

  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) can be established where an offender is serving a first custodial sentence, has reasonable prospects of rehabilitation, and requires an extended parole period to undertake recommended psychological treatment and reintegrate into the community (at [86]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bugmy v R (2013) 249 CLR 571
- Dipangkear v R [2010] NSWCCA 156
- Elsobky v R [2016] NSWCCA 168
- Imbornone v R [2017] NSWCCA 144
- Rosenthal v R [2008] NSWCCA 149
- R v Archer [2017] NSWCCA 151
- R v Bednarz [2000] NSWCCA 553
- R v Berg [2004] NSWCCA 300
- R v Daetz [2003] NSWCCA 216
- R v Edwards (1996) 90 A Crim R 510
- R v Elkassir [2013] NSWCCA 181
- R v Errington [2005] NSWCCA348
- R v Foster [2002] NSWCCA 215
- R v Gonzales [2006] NSWCCA 4
- R v Howcher (2004) 146 A Crim R 371
- R v Koosmen [2004] NSWCCA 359
- R v Thomas; R v Houlton (2000) 49 NSWLR 383
- R v Tzanis [2005] NSWCCA 274
- R v Whyte (2002) 55 NSWLR 252