Director of Public Prosecutions v McNamara
[2021] VSC 845
•17 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0284
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK WAYNE McNAMARA |
---
JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 November 2021 |
DATE OF SENTENCE: | 17 December 2021 |
CASE MAY BE CITED AS: | DPP v McNamara |
MEDIUM NEUTRAL CITATION: | [2021] VSC 845 |
---
CRIMINAL LAW – Sentence – Recklessly cause serious injury – Plea of guilty – Unprovoked physical assault – Aboriginal offender – Utilitarian value of plea in light of COVID-19 pandemic – Bugmy considerations – Total effective sentence of 136 days’ imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Glynn | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms E Clark | Victorian Aboriginal Legal Service |
HIS HONOUR:
Mark Wayne McNamara, in July 2020, you were living in a rooming house in Burke Road, Hawthorn East. The property had five bedrooms. You lived in one of the rooms and had done so for a number of years. Alexander Dreher lived in another room in the house.
Mr Dreher was 63 years old. You were friends and drank alcohol together on a regular basis. Apart from some occasional verbal arguments, there was no particular history of animosity and none of violence between you.
On 31 July 2020, you were drinking with Mr Dreher in your room and you had each consumed a substantial quantity of alcohol and smoked some cannabis. No doubt fuelled by alcohol, an argument broke out over nothing and you punched Mr Dreher forcefully in the face at least twice. As a result of your blows, you broke Mr Dreher’s nose which resulted in Mr Dreher bleeding profusely from his nose.
At the time you punched him, Mr Dreher was sitting in an arm chair. He had not threatened you, and because of his age, intoxication (his blood alcohol level was later found to be 0.47 grams per 100 millilitres of blood), and absent any warning, Mr Dreher had no means of protecting himself and he was in a terribly vulnerable position. The sudden and unprovoked escalation to violence must have come as a shock to Mr Dreher. He was heard a short time later swearing loudly, no doubt shocked and pained as a result of your assault.
You have pleaded guilty to a charge of recklessly causing serious injury[1] and I must sentence you for that offence. The maximum penalty for the offence is 15 years’ imprisonment.
[1]Crimes Act 1958 s 17.
Although you are not to be punished for it, it is necessary that I describe the tragic turn of events that followed your assault on the defenceless Mr Dreher.
The assault occurred just after 3:00 pm. Around 40 minutes after the assault, you called triple zero requesting an ambulance. At this point, Mr Dreher was still screaming out. You told the operator that you had ‘belted’ the victim, he was conscious, struggling to breathe properly, and that you needed an ambulance now. Although it is difficult to understand why, given the content of the call, an ambulance was dispatched but assigned code 3 priority, which has an expected response time of 90 minutes.
Police were also despatched and two officers arrived at 3:56 pm. Another two officers attended shortly after. One of the officers knocked on the door and windows to seek entry, and Mr Dreher was heard yelling inside.
You led two officers to your room where police found Mr Dreher sitting in the chair. They saw that Mr Dreher’s eye was swollen, and blood was coming from his nose and mouth. Police attempted to engage with Mr Dreher, who remained seated in the chair and apparently unable to move himself. His breathing was laboured. Some attempt was made to clear some of the blood from his mouth and nose. He was not placed in a recovery position and remained seated. The police officers asked Mr Dreher to lean forward, no doubt hoping to deal with the blood. It is likely this movement further constricted Mr Dreher’s lungs.
At about this time, you were arrested by two of the officers and taken to the front of the property. After being cautioned you told police, ‘Mate I done the damage alright, I nearly killed this fucking bloke, so no, it’s…my responsibility, my fault, no one else’s, my fucking responsibility, my fault. I don’t know how strong my fucking hands are.’ You told police that you thought you had hit Mr Dreher four times. A few minutes later you said, ‘I took it out on Alex, fucking no reason, just belted the fucking poor bloke, no reason.’ Later you told police that you had ‘just turned’, saying, ‘What happens? Bang, one after the other, after other, after the other, bang. I lost the plot. My fault sarge, my, yeah, you’re a senior, my own fault. Ok? I took it out on him.’
Meanwhile, inside Mr Dreher remained in the chair and police remained with him awaiting the ambulance. At about 4:20 pm, Mr Dreher was observed to be dropping in and out of consciousness. At 4:23 pm, Mr Dreher was unconscious, police moved him to the floor, and commenced CPR. At 4:27 pm, the ambulance was upgraded to a time critical code 1. The ambulance and fire service arrived at 4:30 pm. When they arrived they took over CPR and attempted resuscitation. These efforts were unsuccessful and Mr Dreher, tragically, died at the scene.
A post mortem revealed fractures to the nasal bones and bruising to the nose, a left periorbital haematoma (a ‘black eye’), and deep bruising over the left side of the jaw, lips and chin. Blood was found in Mr Dreher’s airways and the lower lobes of the lungs. The cause of death was recorded as ‘aspiration of blood complicating blunt force injuries to the face, in the setting of alcohol intoxication and hepatic cirrhosis.’
Dr Gregory Young, pathologist, said that death was ultimately due to respiratory arrest because of aspiration of blood from the facial injuries. The bleeding risk had been increased due to presence of hepatic cirrhosis, and the respiratory compromise had been exacerbated by the alcohol intoxication. He made the unsurprising observation that it is quite normal for some people to have a bleeding nose and it would be in exceptional circumstances that a person would die from it.
Dr Young concluded that when the police first arrived, and Mr Dreher was talking and able to breath, his injuries were survivable. When the ambulance and firefighters arrived, and Mr Dreher was in respiratory arrest, he may have been able to survive. Taking into account Mr Dreher’s injuries, his lung and liver function, as well as his intoxication, if no medical assistance had been provided he could very well have survived if he had managed to get himself into a position where he could expel blood and stop inhaling it. If he could not do that, it was very possible he would have died. It followed that the injuries, coupled with his health difficulties, presented a risk to his life.
The trauma suggested one or two impacts on Mr Dreher’s face but Dr Young was unable to determine precisely how many. Dr Young was unable to comment on the degree of force involved.
I mention these matters for a number of reasons. It is important that this Court acknowledge the tragic death of Mr Dreher. In looking at the events of that day it is impossible to ignore the sad reality that Mr Dreher died. I have read the victim impact statements of Mr Dreher’s sister, Ilona Brunner, and his brother in law, Guenter Brunner. Ms Brunner speaks of the enormous loss and sadness that has followed the death of her brother. She says that he would visit her two or three times a week, which were uplifting and joyous occasions. She laments the ill effects alcohol had on her brother.
At the same time, I must record that you are not to be punished for the death of Mr Dreher. You have not been charged with his death, you cannot be taken to be criminally responsible for it, and the sentence I impose on you must not take into account this tragic fact or the burden that the loss of Mr Dreher has had on his family and friends.
There is no artificiality in doing so. The Director of Public Prosecutions has brought a charge that fairly reflects the facts, your conduct, and the consequences of it.
It is necessary that I make some assessment of the objective seriousness of the offending. I have already noted that it was an unprovoked attack on a defenceless man. Mr Dreher was relatively elderly, heavily drunk, and not in good health. It is not possible to estimate the force that you used, although your descriptions to police suggest that they were full blooded blows. These matters increase your moral culpability. Equally, it must be said, there was no motive for the assault and it was a spontaneous act without premeditation. The extent of injury, when compared to other injuries that fall within the definition of serious injury, was at the lower level. Looking at your conduct and the extent of injury, I regard your offending as a relatively low level example of the offence.
I have already set out the events surrounding the assault, and I now turn to your own personal circumstances.
You are 60 years old. You are of indigenous descent and are one of five brothers, and a sister who was born to your mother but was either removed from the family or died shortly after birth. Your parents were heavy drinkers, and your father, a truck driver, was extremely violent towards your mother and you and your siblings. You and your elder brother, Trevor, who is two years older than you, were taken into care with Christian Brothers near Geelong where you suffered sexual assaults. You both ran away when you were around 13 and from that age the two of you lived without the support of a family or any supervision. You have no contact with your eldest brother, two of your brothers have died, one at his own hand and the other from an overdose. You remain close to Trevor who lives in Queensland although contact has been sporadic. He was in contact with you while you were on remand for this charge.
You left school at an early age, and have little numeracy and literacy. You had fairly regular employment in various jobs and you are currently on a disability support pension, which you supplement with additional casual work, including gardening and cleaning at the rooming house you were living in.
I accept that you did not have the opportunity to grow up in a stable, family environment, and that your childhood was marred by significant instability and deprivation.
You father was a Noongar man who grew up in Western Australia. You believe your father may have been taken from his family as part of the Stolen Generations. As a child, you did not have a connection to country or your Aboriginal culture. Whilst in custody for this offence, you took classes in Aboriginal culture and I accept you have recently engaged with your culture for the first time.
The principles set out in the High Court case of Bugmy v The Queen operate to reduce your moral culpability to some degree.[2] In Bugmy, the High Court discussed how an offender’s culpability is likely reduced if their formative years have involved alcohol abuse and violence. The effects of childhood deprivation do not diminish with the passage of time and I accept that your history of alcohol abuse and isolation, which finds some considerable refection in this offending, has arisen in the context of early childhood deprivation.[3] It follows that your moral culpability for the crime of recklessly causing serious injury is reduced.
[2](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[3]Ibid 595 [44].
You have some criminal history. Between 1996 and 2007, you had 31 appearances in criminal matters in the Magistrates’ Court in Cairns, Queensland.[4] Some of the offences resulted in short terms of imprisonment, most were dealt with by fines. They are in the nature of public order offences, involving public drinking, nuisance, disorderly behaviour, breach of bail, and using abusive words. In Victoria, you have had eight prior court appearances, mainly for theft or property offences. Some of them resulted in suspended sentences of relatively short duration. The last offending took place in 2009.
[4]There were also two appearances in the Townsville Magistrates’ Court and one in the Mareeba Magistrates’ Court.
There are some things that are relevant that arise from your record. Firstly, you are plainly not a first time offender. Secondly, I infer that much of your offending is related to a history of alcohol abuse. Thirdly, it appears that, particularly in Queensland, you often came to the attention of the police for lower level public order offences. It is difficult to know from this distance, in time and place, why that was so, and whether it was your conduct or the blunt use of the criminal law. Most importantly, for present purposes, the offending does not involve crimes of violence. Overall, I give very little weight to your past offending.
I am persuaded that you are remorseful for your actions and I will treat yours as being an early plea. You made frank admissions to police, to which I have already referred. You called an ambulance and you were concerned about Mr Dreher and I have no doubt that the events of that day have been a very heavy burden on you.
Your plea of guilty, which is itself evidence of your ongoing remorse, also has utilitarian value. You have avoided a trial, which in the present time of the pandemic is of great value.
In terms of your rehabilitation, I am persuaded that this violent episode was out of character. Obviously, alcohol played a major part. Alcohol has been a problem for you for a large part of your life.
Since you were bailed you have made contact with the Victorian Aboriginal Health Service (‘VAHS’). Dr Edmund Molesworth, in a letter of support, notes that you have attended your appointments and you have been referred to drug and alcohol counselling through VAHS. Stephen Bowes, a senior drug counsellor associated with VAHS, has advised that you have competed 14 sessions and that based on testing you are in the low risk category for alcohol abuse and that you have engaged well with counselling. Although on the current material, and in the absence of further evidence, I am unable to accept his opinion that you show no evidence of dependence or problematic use, I do accept that you have engaged constructively with counselling.
I remain concerned that alcohol will continue to be a problem for you, but I do not consider that it poses a significant risk in terms of further offending of this kind. The absence of any prior convictions for violence and of any offending at all since 2009 is important in this respect. I assess your prospects of rehabilitation as good.
Nevertheless, it remains important to return to the fact that you caused serious injury to Mr Dreher in a drunken assault. There remains an important aspect of the sentence that the Court denounce this offending. It was brutal and totally uncalled for. It is not the sort of drunken violence that causes problems in public places and licensed venues and it does not have many of the hallmarks of violence in a domestic setting, even though it occurred in your home, but it remains a nasty attack which calls for some general deterrence.
In my view, a term of imprisonment is justified and required. I note that you were arrested and remanded in custody until you were bailed by an order of a judge of this Court. You served 136 days on remand. Your counsel submitted on your behalf that the period served on remand is the appropriate disposition in all the circumstances. It was submitted that a Community Correction Order (‘CCO’) in addition to the time you have already served on remand was not required. The prosecution submitted that time served was inadequate.
Following the plea hearing, I had you assessed for a CCO and you were found suitable. In the end, I am not persuaded that a CCO is necessary or warranted.
Having regard to all the matters outlined, I consider that the time served by you on remand is an appropriate and proportionate sentence for your offending. In saying that, I also take into account the especially onerous conditions that have been sustained in prisons as a result of the pandemic and to which you were subject to whilst on remand.
Mr McNamara, on the charge of recklessly causing serious injury, you are convicted and sentenced to be imprisoned for a period of 136 days.
I declare that you have served 136 days by way of pre-sentence detention and I direct that the fact of the making of that declaration and its details be noted in the records of the Court.
I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have imposed a sentence of 6 months’ imprisonment.
---
0
1
0