R v Munday
[2016] VSC 114
•21 March 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0133
| THE QUEEN | |
| v | |
| GARRETH MARK MUNDAY | Accused |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 5 February, 3, 15 March 2016 |
DATE OF SENTENCE: | 21 March 2016 |
CASE MAY BE CITED AS: | R v Munday |
MEDIUM NEUTRAL CITATION: | [2016] VSC 114 |
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CRIMINAL LAW – Sentence – Recklessly cause serious injury – Early plea of guilty – Likely diagnosis of schizophrenia - Sentenced to 407 days imprisonment considered time served, combined with a three-year Community Corrections Order – No parole period – Standard CCO conditions – Additional conditions including mental health assessment and treatment, drug rehabilitation and treatment, supervision, judicial monitoring.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Coombes | Office of Public Prosecutions |
| For the Accused | Ms N. Karapanagiotidis | Victoria Legal Aid |
HIS HONOUR:
Mr Munday, you have pleaded guilty to one charge of recklessly causing serious injury.
On 3 February 2015 you brutally assaulted your uncle, Colin Rowlings, with a tomahawk, which you had secreted some months earlier. You were initially charged with attempted murder and, inclusive of today, have served 407 days in custody by way of pre-sentence detention. You were 18 when you committed this crime and suffering from a serious psychiatric illness.
The short background to your offending is as follows. As I understand it, your mother and her brother, Mr Rowlings, share ownership of a small house in Old Belgrave Road, Upper Ferntree Gully. In early 2015, accommodation there was cramped. Your mother, Sharon, shared a room with her partner Mark Van Der Brink. Janet, your sister, had her own bedroom. Your uncle slept mostly on a couch and you also slept on a couch in the kitchen/meals area. Space was tight and over time tempers became frayed.
You and Colin Rowlings did not get along. He would lecture you about your poor attitude around the house. You resented this and you argued with him frequently. During the evening of 2 March into the early morning of 3 March, your arguing became more serious. Your uncle remarked to you that he wouldn’t care if you jumped in front of a train and killed yourself. This is an irresponsible and foolish remark from an adult to a late adolescent. It cannot, however, in any way justify your vicious and grossly disproportionate response.
You retrieved your tomahawk from under a couch in the dining area of the house. Mr Rowlings had his head down preparing food. You stood in front of the couch, swung the tomahawk high and struck your uncle to the top of the head with significant force. He turned around and you repeated your action, this time striking him to the left cheek/eye socket area. You were only prevented from striking Mr Rowlings again by the brave interventions of your sister, Mr Van der Brink and Mr Rowlings himself. Mr Van der Brink pushed you away and you fled the house.
Mr Rowlings was taken to hospital and treated, including with surgery. He sustained a 6 cm laceration to the parietal scalp, a deep laceration over the left eyelid area (about 10 mm in length) and a comminuted fracture of the left zygomaticotemporal arch and zygomatic body. In lay terms, your second blow was sufficiently forceful as to shatter Mr Rowlings’ cheekbone.
Fortuitously Mr Rowlings has made a good recovery, although I regard it as inevitable that he will have sustained reasonably significant scarring.
In my view, a cogent explanation for the explosive response to your uncle’s foolish remark can be found in your mental state. Various psychiatric reports have been tendered on your plea including four from Dr Adam Deacon, a consultant psychiatrist engaged by your solicitor, and one from Dr Kevin Ong, a consultant psychiatrist attached to the Victorian Institute of Forensic Mental Health. At certain times there have been concerns as to your fitness to plead, which explains the relative wealth of psychiatric material before the Court. There is no significant disagreement between the psychiatrists, and it is sufficient to state the following propositions which summarise their opinions:
(a) You have suffered from a psychotic disorder, likely to be schizophrenia, from about the age of 16.
(b) You were very likely psychotic at the time of offending. It is also likely that, as a result of your illness your inhibitions were lowered, your impulsivity increased and your judgement reduced.
(c) You have relatively little insight into your mental condition and have only intermittently complied with your medication regime since your imprisonment. I note with some urging from your practitioners and the court that you have resumed taking olanzapine, an anti-psychotic.
(d) You continue to be quite unwell. You will continue to require close supervision and treatment upon your release from custody.
I am satisfied that your mental health is relevant to this sentencing exercise in the following ways:
(i) I consider that there ought be some reduction in my assessment of your moral culpability, although I consider this reduction ought be modest given the relatively subtle influence it had over your actions which I have referred to in (b) above.
(ii) I am persuaded that upon your release a close form of supervision and treatment will need to be in place for a significant period of time. This will include judicial monitoring for a time.
(iii) I am satisfied that deterrence, both general and specific, ought be given somewhat less weight than otherwise would be warranted.
(iv) I am not satisfied that any future imprisonment would be more onerous on account of your mental illness. I have no evidence as to this and I am not prepared to guess. I am satisfied, however, that the treatment that is available in the community is vastly superior to that that has been available so far at Port Phillip prison.
I turn now to other more general matters. You have no prior criminal history. You entered a plea of guilty to this offence upon the greater alternative of attempted murder being withdrawn, and indicated a preparedness to plead guilty to recklessly cause serious injury on 24 September 2015, soon after you were assessed as fit to plead. I consider your plea to be an early one. You have no contact with your biological father, who was only with your mother for a short period. You do, however, have a solid relationship with the man you regard as your stepfather, Stephen Munday. He married your mother when you were very young and they remained together until you were about 12 or 13. He is an industrial painter and the plan is for you to live with Mr Munday upon your release.
You completed Year 9 at Knoxfield Secondary College but did not complete Year 10, which you attempted three times. I think it is likely that your undiagnosed illness played its part in your problems at school. You have various half-siblings and step-siblings, although it is not clear to me whether you have solid relationships with any of them. During your time on remand you have been moved around in the prison system, and your mental health has fluctuated.
You present a difficult sentencing exercise. On the one hand there is a sound argument that 407 days on remand in adult custody is sufficient for a (then) 18 year old first offender who enters a plea of guilty to this offence.
On the other hand, you are still quite unwell and in real need of continuing treatment. The protection of the community is a real factor in this sentencing exercise. It would be unlawful for me to sentence you to a disproportionately long term of imprisonment in order to achieve this purpose. The protection of the community cannot be ignored, however, and I regard it as inextricably bound up in your future treatment. I propose to sentence you to 407 days imprisonment inclusive of today. I consider that the time you have served in custody adequately deals with the sentencing aspects of deterrence, punishment and denunciation. I further consider that the community’s interests and your interests are best served by releasing you on a strictly conditioned Community Corrections Order (‘CCO’) to be operative for a period of 3 years.
In addition to the standard conditions of the CCO, which will be explained to you shortly by your lawyer, the CCO I shall impose on you will require you to undergo mental health assessment treatment as directed by the Secretary of the Department of Justice or his delegate. This will mean, in effect, that if your case worker at the Department of Corrections directs you to attend a psychiatric appointment, for example with Peninsula Health, you must do so or you will be in breach of your CCO.
You will also be required to abstain from illicit drugs over the course of the order. It is a standard condition of all CCO’s imposed by this Court that you must not commit any criminal offence punishable by imprisonment: this includes drug offences. The CCO I shall impose will further include a condition that you undergo drug rehabilitation treatment as directed. Like the mental health condition, this means that if your case worker at Corrections tells you to engage with a program, or undergo drug testing, you must do so or be in breach.
For the first few months after your release I will also require you to undergo judicial monitoring. On the first Monday of April, May, June and July this year, you must present yourself here, preferably with a family member, and I will monitor your progress – that is, I will see how the you are going in terms of your CCO. If you can get through the first few months, things will settle down and become easier. You will be supervised, monitored, managed and directed by the Secretary or his delegate for the first year of your CCO. I’m not going to impose any requirement that you perform any hours of community service: this next phase is about your recovery, and not further punishment.
Finally, your CCO will include a residential condition that, for the first year at least, you reside with your step father at the address stated on the Order. If you want or need to change your residential address during that first year, you will need to apply to the Court to have your CCO varied. I commend Mr Munday for providing you with this support. Stability and routine are essential for your rehabilitation.
I note that s 11 of the Sentencing Act1991 states that when a sentence of 12 months – two years is imposed, the Court may set a minimum non-parole period for that sentence. In Boulton v The Queen the Court of Appeal agreed that, ordinarily, a CCO and a minimum non-parole period should be treated as alternatives.[1] The practical reasons for this were discussed at plea, and I do not set a minimum non-parole period in your case.
[1]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 (1st Revision: 30 September 2015, paras [21], [245] and [247], Maxwell P, Nettle, Neave, Redlich and Osborn JJA, at [199]; see also Debono v The Queen [2016] VSCA 16, Weinburg and McLeish JJA, at [6].
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 2 years 6 months’ imprisonment, with a minimum term of one year 10 months.
If you consent to the CCO, I will, as I have said, impose a sentence of 407 days imprisonment in conjunction with a three-year community corrections order that will carry both the standard conditions and those additional conditions that I have described. Your CCO will commence immediately upon you leaving court this morning. You will be required to attend the Frankston Justice Service Centre, the address of which is on your order, within two days of today. If you agree to the Order, but then breach it, you will be returned to this Court to be resentenced.
I have prepared a draft of this Order, and provide it now to Counsel.
I will leave the Bench now briefly. Your lawyer will come and speak to you about the Order. She will explain it to you. When I return to Court, I will ask you if you understand the Order and if you agree to it. If you answer in the affirmative to both, you will then sign the Order and I will make it.
Garreth Munday agrees to the Community Corrections Order, and confirms the CCO has been explained to him by his lawyer.
On the charge of recklessly causing serious injury I sentence you to 407 days imprisonment, inclusive of today. I declare that you have already served 407 days of imprisonment by way of pre-sentence detention. I further order that you undertake a three-year CCO, commencing today, with the standard conditions, and the additional conditions that are set out in the Order that you have signed.
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