R v Munro

[2015] NSWDC 353

District Court

New South Wales

Medium Neutral Citation:	R v Munro [2015] NSWDC 353
Decision date:	01 October 2015
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For the offence of reckless wounding, a sentence of imprisonment of 3 years and 4 months to commence on 11 May 2015 and to expire on 10 September 2018. A non-parole period of 2 years is fixed to commence on 11 May 2015 and to expire on 10 May 2017.
Catchwords:	CRIMINAL LAW – Sentence – particular offence – offence against the person – reckless wounding – stabbing to the chest with scissors – gravity of offence – above the middle of the range of objective seriousness – injury to vital part of the body – offence occurred just outside home of the victim – more weight to be given to general deterrence – nature and circumstances of offender – prior criminality – record of offences of personal violence – aggravating factor – Indigenous woman from unstable background – Fernando principles – remorse – apologised in court – undertaking rehabilitation program in custody – fair prospects of rehabilitation – plea of guilty at earliest opportunity – 25% discount – special circumstances for altering the ratio between the head sentence and non-parole period – extended period of supervision required to overcome drug and alcohol issues
Legislation Cited:	Crimes Act 1900 (NSW), s 35(4) Crimes (Sentencing Procedure) Act 1999, s 21A
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 R v Fernando (1992) 76 A Crim R 58
Category:	Sentence
Parties:	Regina (Crown) Neesha Rebecca Munro (Offender)
Representation:	Counsel: P Coady (Offender)   Solicitors: G Wasilewicz, Office of the Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2015/34150

Judgment

1. I am sentencing Neesha Munro for stabbing her own mother. It was a serious crime.

2. What a judge does when they are sentencing an offender is to say something about the crime and then something about the offender themselves before announcing what the sentence is. The judge needs to make an assessment of how serious an example of the offence this particular one was but also take into account any factors that are personal to the offender which should be taken into account.

3. The first thing I should say is that Ms Munro has pleaded guilty to the crime that she was charged with. The crime is called reckless wounding. It is an offence against s 35(4) of the Crimes Act1900 (NSW). It is so serious that Parliament has fixed a maximum of seven years imprisonment to the crime. Not only that, it has fixed a standard non-parole period of three years to the same crime.

4. As a result of Ms Munro’s plea of guilty I will formally convict her of the offence. In addition, in due course I will reduce her sentence by some 25% because she pleaded guilty at the earliest available opportunity.

5. First, the crime. Neesha Munro’s mother lived in Coledale with Neesha Munro. She was at home on the night of Sunday 4 January this year, when Neesha Munro arrived at the door. She went to the door and yelled “Let me in, let me in.” The light came on, the front door opened and Neesha Munro went inside. She and her mother were yelling at each other for some minutes inside. Neesha Munro was heard saying “[c]an I get my bottle, give me my bottle, give me my bottle, give me bottle or I'll stab ya.”

6. At some stage they moved to the front of the house. A witness saw Mrs Munro, Neesha Munro’s mother, “grab her chest above her breasts and walk towards the roadway where she collapsed.” Neesha Munro left the scene. An ambulance came and Mrs Munro was taken to hospital. There they found “a stab wound to her chest.” What the doctors found was that Mrs Munro “had sustained a stab wound which penetrated her left upper chest, extending through the chest wall into the pleural cavity. She had sustained a collapsed lung as a result.” When the police came to the scene they found a pair of scissors in front of the house with blood on them.

7. Neesha Munro turned up at the police station the next day and was arrested and charged. She has been in custody since 11 May this year and her sentence will commence on that date.

8. At this stage, I should make some findings about how serious an example of a reckless wounding this particular crime was. There is a small difference in the submissions made by Neesha Munro’s counsel, Mr P Coady, and the solicitor for the Director of Public Prosecutions, Ms G Wasilewicz. Mr Coady realistically acknowledges that the criminality of the crime “should be assessed at toward the midrange of objective seriousness.” On the other hand, Ms Wasilewicz argues that the objective seriousness of the crime is above the midrange. She says slightly above the midrange, but above the midrange, because of the place where the wound was and the amount of force needed to inflict it. It was, Ms Wasilewicz argues, a very serious part of the body.

9. Given that it is a wounding and not a grievous bodily harm and given that a wounding can occur to many other parts of the body, I agree with Ms Wasilewicz that this particular wound was in a very serious part of the body. Judges are used to dealing with tragic cases where someone has lunged at another person with a knife or scissors and slightly penetrated their chest, but the wound has punctured the heart and the person has died. Not only that, in this case although missing the heart, the wound caused - as I said - a penetration through the chest wall and into the pleural cavity.

10. There was also some debate about the fact that the offence took place at the home of the victim. It was also the home of Neesha Munro. Ms Wasilewicz argues that this was an aggravating factor. Again, I agree with her. Neesha Munro’s mother was at home in her house minding her own business when her daughter - the offender - knocked on the door, came in, argued with her and then stabbed her outside the house. The purpose of the aggravating feature is that a person is entitled to feel safe and unmolested in their own home, even though that home might be shared with the offender.

11. As I said, it is also important to take into account factors which are personal to an offender. A judge always starts with the criminal record. That can be relevant for a number of reasons. In this case Neesha Munro, who turned 31 earlier this year, has a criminal record which commenced with relatively minor offences in the Children’s Court but then when she became an adult she found herself in the Local Court, again with common assault offences. But in 2014 she was sentenced for assault occasioning actual bodily harm - in fact twice - and those sentences were imposed on 15 January 2014, about a year before Ms Munro committed this offence.

12. Section 21A of the Crimes (Sentencing Procedure) Act 1999 includes, as aggravating factors to be taken into account in determining the appropriate sentence for an offence, the fact that “the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences)”. I regard Neesha Munro’s record including assault occasioning actual bodily harm about a year before this offence as a relevant factor to take into account in accordance with s 21A of the Crimes (Sentencing Procedure) Act.

13. But there is more information about Ms Munro. A lot of it is contained in a detailed report from the experienced clinical psychologist, Anna Robilliard, which was prepared on 10 September 2015. When Mr Coady called his client to give evidence, she confirmed the history which she had given to the psychologist.

14. I think Mr Coady’s submission in para 15 of MFI 1 - his written submissions - is correct, that his client -

“…is an indigenous woman, who comes from an unstable background that included frequent violence as well as alcohol and drug abuse. Her offending conduct must be seen in the context of her observing violent abusive and addictive models of behaviour in her formative years. She has developed addictions to escape the outcomes of this upbringing...”.

He refers to the report of Dr Robilliard to sustain the last sentence. I agree with that submission.

15. Ms Munro has seven children, none of whom she cares for personally. Her youngest boy Jarmarley, is looked after by her father. Ms Robilliard acknowledged that Ms Munro “will be vulnerable to relapsing with the associated consequence of increased likelihood of re-offending.” In addition to Jarmarley, Ms Munro has six other children. Her education is limited and she has also participated in substance abuse, including the drug commonly known as ice.

16. When Ms Munro was called to give evidence, she not only expressed remorse and apologised to her mother, but explained some of the efforts that she had been making towards her own rehabilitation. In custody she has been undergoing a rehabilitation program. In the past before committing this crime she has attempted to undergo rehabilitation. Once she went to Dooralong in Wyong but was ordered to leave because of an anger issue. Another time she went to William Booth House in Sydney. She was going well there but discharged herself when her brother left gaol and she needed to look after him and get him back home. She was not accepted back into the program. In addition, she has made her own enquiries about programs that might be available on her release and she has mentioned the Bridge program here in Tamworth and an Aboriginal medical service program in Inverell as well as a program in Moree.

17. Ms Munro hopes to live with her father when she is released. He will be moving to Inverell. She acknowledged that alcohol as well as drug abuse featured in the crime which she committed against her mother and that alcohol has been a problem all her life and often leads to violence. The program she is doing in custody has been helping. She acknowledges her drug use and acknowledges that it will be a battle to overcome it. Her strong driving motivation is to secure the custody of her children who have been removed from her.

18. Mr Coady also called Terrence Munro, Ms Munro’s father. Having had an alcohol problem in the past it is clear that he has now given up alcohol and leads a stable life to such an extent that he has custody of Jarmarley. Mr Munro confirmed that he hopes to move to Inverell once he secures some accommodation there and that he is prepared to take his daughter back and he confirmed that she was very sorry for what she had done. He has visited his daughter in custody, taking along Jarmarley to maintain the contact.

19. I have had the benefit of very helpful submissions from both Mr Coady and Ms Wasilewicz about the factors relevant to sentencing Ms Munro. Mr Coady realistically acknowledged that the prospects of his client’s rehabilitation were no more than fair. I think that that was a correct acknowledgement. He did however point to the strength of her motivation and the fact she had made her own enquiries and was undergoing a program whilst she was in custody. He described her as honest and realistic and I think that is probably a fair description. He referred to Ms Munro’s remorse and her early plea of guilty. Ms Wasilewicz acknowledged both of those.

20. Mr Coady referred to the decision of Wood J, as his Honour then was, in R v Fernando (1992) 76 A Crim R 58 and the factors relevant to sentencing an Aboriginal offender, which his Honour set out there and to the confirmation of that approach by the High Court of Australia in Bugmy v The Queen (2013) 249 CLR 571. One of the factors in Fernando which Mr Coady reminded me of was -

“While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.”

A sentence can be particularly harsh on an Aboriginal person removing them from their home.

21. Ms Wasilewicz acknowledged the relevance of those factors referred to in Fernando. Ms Wasilewicz emphasised that the offence had a domestic violence aspect about it. That is the case. It means that I need to give more weight to general deterrence. Relevant to specific deterrence, as Mr Coady pointed out on the other hand, is his client’s remorse and the steps taken towards her own rehabilitation.

22. I have taken into account all of those submissions and have also had regard to some statistics made available by the New South Wales Judicial Commission.

23. I should add one observation about some cases which Mr Coady referred me to. He made it clear that the cases referred to in para 17 of his written submissions were not indicating a range but illustrated examples of this kind of offence. Bearing that qualification in mind, I do note that in both Zreika [2012] NSWCCA 44 and Hyunwook [2010] NSWCCA 148, observations were made by one or more judges in the Court of Criminal Appeal about the relative leniency of the sentences imposed.

24. I also bear in mind the maximum sentence of seven years imprisonment and the standard non-parole period of three years. Bearing in mind the objective seriousness of the offence and everything that I have referred to, I would regard an appropriate sentence in this case as being one of four and a half years imprisonment. However, Ms Munro has pleaded guilty at what is agreed to be the earliest available opportunity. I would therefore reduce that sentence by 25% and round it off to three years and four months imprisonment.

25. Normally for a sentence of three years and four months imprisonment the non-parole period would be three-quarters of that time, or two years and six months imprisonment. Mr Coady argues that there are special circumstances in this case for reducing the non-parole period and increasing the parole period. She will need, he argues, an extended period of supervision in order to deal with her drug and alcohol issues. I think that submission is correct. She has already made enquiries about services that will be available to her when she is released and she has been undergoing some treatment or undergoing a program whilst in custody.    I propose to reduce the non-parole period from two years and six months to two years imprisonment.

HIS HONOUR:   I am going to sentence you now Neesha Munro.

26. I sentence you to three years and four months imprisonment. That will commence on 11 May 2015 and will expire on 10 September 2018. I specify a non-parole period of two years. That commenced on 11 May 2015 and will expire on 10 May 2017. The balance of one year and four months on parole will be from 11 May 17 to 10 September 18.

HIS HONOUR:   I am just going to ask Mr Coady and the Prosecutor to check the figures. Three years, four months, 11 May 15 to 10 September 18. Non-parole period two years, 11 May 15 to 10 May 17. Balance one year and four months from 11 May 17 to 10 September 18.

WASILEWICZ: Yes your Honour.

COADY: Yes I've got no problem.

HIS HONOUR: Correct. Ms Munro, the earliest date on which you will be eligible for release is less than two years from now. It will be on 10 May 2017. Whether you are released to parole or not depends upon the Parole Authority, but you are eligible from 10 May 2017 and your overall sentence will finish on 10 September 2018. Do you understand that?

OFFENDER: Yes your Honour.

HIS HONOUR: Good luck.

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Decision last updated: 08 February 2016