R v Munro
[2016] ACTSC 222
•13 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Munro |
Citation: | [2016] ACTSC 222 |
Hearing Date: | 7 July 2016 |
DecisionDate: | 13 July 2016 |
Before: | Refshauge J |
Decision: | 1. The conviction of the offence of assault occasioning actual bodily harm is confirmed (CC 10/3935). 2. The Good Behaviour Order made on 19 November 2012 be cancelled. 3. Alex Robert Munro be sentenced to 18 months imprisonment to commence on 25 April 2016. 4. The sentence be suspended today, 13 July 2016, for a period of 18 months. 5. Alex Robert Munro be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from today with a probation condition that he be subject to the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him especially as to mental health treatment and counselling and drug counselling and treatment. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Breach of Good Behaviour Order – re-offending – original good behaviour period almost completed – Good Behaviour Order now expired – new Good Behaviour Order made |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 75(1)(f), 86(1)(a), 86(1)(a)(i), 107(2), 110 |
Cases Cited: | Guy v Anderson [2013] ACTSC 5 R v Curtis (No 2) [2016] ACTSC 34 |
Parties: | The Queen (Crown) Alex Robert Munro (Defendant) |
Representation: | Counsel Ms K MacKenzie (Crown) Mr D Johns (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (ACT) (Defendant) | |
File Number: | SCC 207 of 2010 |
REFSHAUGE J:
After a trial, Alex Robert Munro, the accused, was acquitted by a jury of recklessly inflicting grievous bodily harm, but convicted of assault occasioning actual bodily harm.
On 14 May 2012, I sentenced Mr Munro to imprisonment for 18 months, six months of which was to be served by periodic detention and, at the end of that period, the sentence was suspended for a period of two years. I made a Good Behaviour Order, as required under s 12 of the Crimes (Sentencing) Act 2005 (ACT), for a period of two years and six months from that day. See R v Munro (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, No SCC 207 of 2010, 14 May 2012) (R v Munro (No 1)).
Unfortunately, Mr Munro was unable to complete the period of periodic detention because of mental health problems. The Sentence Administration Board referred the matter back to me under s 75(1)(f) of the Crimes (Sentence Administration) Act 2005 (as it was in November 2012) and on 19 November 2012, I re-sentenced Mr Munro to 18 months imprisonment, backdated to account for the periods of periodic detention that Mr Munro had served and I suspended the sentence on 14 January 2013 for a period of two years. Again, I made a Good Behaviour Order for three years, from 14 January 2013, with a probation condition. See R v Munro (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, No SCC 207 of 2010, 19 November 2012) (R v Munro (No 2)).
This means that Mr Munro had served approximately two months and two weeks in custody, being the periodic detention and the period of full-time imprisonment that I originally imposed. See R v Munro (No 1).
The Good Behaviour Order made continued until 14 January 2016.
Unfortunately, less than two months before the expiry of the Good Behaviour Order, Mr Munro got into an argument with his father in circumstances to which I will refer below. As a result, his father was injured and had to be taken to hospital where the wound he suffered was sutured.
As a result, Mr Munro was charged with assault occasioning actual bodily harm.
He appeared in the Magistrates Court on 9 April 2016 when he was sentenced to five months imprisonment, immediately suspended with a Good Behaviour Order for 18 months.
Because the offence was committed during the currency of the Good Behaviour Order made in R v Munro (No 2), Mr Munro was committed to this Court to be dealt with for the breach of the Good Behaviour Order. See s 107(2) of the Crimes (Sentence Administration) Act 2005.
Mr Munro appeared before me on 7 July 2016 and admitted the breach.
Accordingly, I am now required to deal with that breach.
Under s 110 of the Crimes (Sentence Administration) Act 2005, being satisfied that the conviction constitutes a breach of the Good Behaviour Order obligations imposed on Mr Munro (s 86(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT), I must cancel the Good Behaviour Order and either impose the suspended sentence proposed for the offence or resentence the offender for the offence.
The facts
The facts which give rise to the offence which breached the Good Behaviour Order were somewhat complicated.
Mr Munro had been staying with his father on a non-permanent basis. He normally stays with his mother.
On the morning of 27 November 2015, Mr Munro’s father was scraping carpet from the floor in preparation for getting new carpets. He was using a garden spade.
Mr Munro entered the room and began to assist his father with pulling up the carpet and began to use the spade while his father started using a paint scraper.
While they were working, however, they began to argue and Mr Munro went to leave the room during the argument, throwing the spade aside as he exited the room.
The spade hit Mr Munro’s father on the base of his index finger near the web of his thumb and he felt extreme pain. The wound started to bleed profusely, as Mr Munro’s father was then taking blood thinning medication.
Mr Munro’s father drove himself to the hospital where he received medical treatment, including four stitches to the wound. His hand, however, was not broken. When Mr Munro’s father returned home, he found that Mr Munro had left, but Mr Munro called a few days later to apologise for what he had done.
Mr Munro’s father did not report the incident to police but, in early December, Mr Munro’s father had concerns for Mr Munro’s welfare because of previous suicide attempts and drug use. When speaking with police, Mr Munro’s father disclosed to police the incident of 27 November 2015 and police decided to prosecute.
Police found Mr Munro on 9 December 2015 and he was arrested and participated in an interview with police when he stated that he had not deliberately hurt his father.
Mr Munro appeared in Court on 9 December 2015 and was remanded in custody. On 22 December 2015, he pleaded not guilty and, on 24 December 2015, he was granted bail.
After several adjournments, he entered a plea of guilty on 8 April 2016 and was convicted and sentenced as indicated above (at [8]).
Accordingly, I must now deal with Mr Munro for the breach of the Good Behaviour Order I had made. The breach is the commission of the further offence which breaches a core obligation not to commit further offences punishable by imprisonment: s 86(1)(a)(i) of the Crimes (Sentence Administration) Act 2005.
I have set out above (at [12]), the action that must be taken in this matter and the options I have and likely action on the breach. Accordingly, I must cancel the Good Behaviour Order and I will do so.
The Good Behaviour Order has now expired. Nevertheless, under the legislation, I have power still to proceed in accordance with s 110 of the Crimes (Sentence Administration) Act because the breach occurred during the currency of the Good Behaviour Order. That requires, curiously, that I cancel the order. It is the occasion then for the re-sentencing or the imposition of the period of imprisonment.
In Saga v Reid [2010] ACTSC 59 at [99]-[101], I adopted what had been said in other cases, namely that the failure of the courts to act where there has been a clear breach of the conditions of a conditional release order, such as a Good Behaviour Order, imposed when a sentence of imprisonment is suspended and by which the offender avoids being sentenced to full-time prison, is likely to bring such sentence into disrepute.
Nevertheless, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]-[87], there is, in this jurisdiction, no presumption in favour of imposing the original sentence that had been suspended, and a court may, in an appropriate case, merely sentence the offender to the same sentence, including suspension of the term of imprisonment, as originally imposed. While that would have the effect of extending the period in which the offender is subject to a Good Behaviour Order, that may be modified to take into account the period of satisfactory compliance for the earlier order. See R v Kekalainen (No 2) [2015] ACTSC 369 at [48].
Over time, a number of considerations have been identified as relevant to the decision as to the appropriate response to the breach of a Good Behaviour Order. I identified some of those in the R v Curtis (No 2) [2016] ACTSC 34 at [18], as follows:
These include the proportion of the term of the Good Behaviour Order that had been served without breach, any rehabilitation attained by the offender prior to the breach, the nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed, the relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending; and, the prospects of the offender's rehabilitation.
When re-sentencing, the legislation expressly applies to the Crimes (Sentencing) Act 2005 to any resentencing, thus all relevant factors on sentencing are to be taken into account.
The original offence
The original offence was a serious attack of violence between Mr Munro and a neighbour of his then partner.
In the early hours of the morning of 6 November 2008, Mr Munro, apparently disturbed because of noise coming from the neighbour, walked over to the neighbour’s place and threatened to assault him. The neighbour told Mr Munro to leave his property, but Mr Munro did not do so and came and punched him in the face with his fist. This broke some of the victim’s teeth. The victim then covered his face with his arms, but Mr Munro continued to attack him.
The victim fell to the ground, curled up in a foetal position and wrapped his arms around his head to protect himself. Mr Munro kicked him in the head and shoulder area.
The victim suffered a broken cheekbone that was surgically repaired by the insertion of a mesh titanium plate inserted into his cheek and eye socket. He suffered nerve damage, which made his entire left cheek, upper lip and left side gums numb and left him with a phantom feeling if he touches his lip. His front teeth had been chipped or broken, which makes eating painful and hot and cold food gives him a stabbing pain through his left cheek. He lost movement in his lips, which, he says, means that when he smiles it looks like a “cynical sneer”. He has no movement in his left eyelid, which makes blinking or closing his eye impossible. He had to have a further operation and has to attend eye specialists every year. The damage to his eye makes sun and wind intolerable and means he cannot swim. He cannot drive and sleeping becomes a source of discomfort. It was a serious attack which left the victim with serious and long-lasting injuries.
Subjective circumstances
Mr Munro was born in Canberra 38 years ago. He has, apart from a short time in Melbourne, lived here ever since.
His mother had psychological problems which led to the breakdown of his parents’ marriage. He lived with his mother, primarily, until he was 16. Although he said his childhood was “fun” and “quite active” it was marred by the psychological impairment of his mother, with whom he had a “terrible relationship”, leading to him sleeping outside the home.
He moved in with his father when he was 16 until he was 18, but has returned there on a number of occasions since and now has, in general terms, a good relationship with his father. He is now living, however, with his mother.
While Mr Munro may perhaps have viewed it as less so, Dr Van Meurs, psychologist, who Mr Munro consulted, described his childhood as “emotionally traumatic”.
Mr Munro completed his Year 12 certificate and has obtained Bachelor Degrees in Commerce, majoring in Accounting, and in Applied Science with Environmental Design. He commenced a post-graduate Accounting course but did not complete it, though he has been admitted as an Associate of the Association of Certified Practising Accountants. He has also completed certificates in computer assisted drafting and has various other employment related certificates.
Mr Munro has been employed for much of his time since school but there have been periods of him being unemployed, particularly related to his mental impairment, to which I will refer below. He has been employed in significant positions, for example, as a Project Director with a firm of consulting engineers. Regrettably, his mental health worsened and he relapsed into drug use, which resulted in him losing his job. As a consequence, he lost his place of residence and there followed a period of homelessness, including sleeping in his car or temporarily sleeping at the homes of friends, punctuated with a return to his father’s home from time to time.
Mr Munro has been diagnosed as suffering from a severe borderline personality disorder and chronic post-traumatic stress disorder consequent on child abuse and sexual abuse at the age of 14. The psychiatric report provided to the Court on 6 November 2012 also considered that Mr Munro suffered from “significant anxiety and depression”.
When I was originally sentencing Mr Munro, it was proposed that he would access Dialectical Behaviour Therapy, a mode of therapeutic intervention which would assist, in particular, with his borderline personality disorder otherwise difficult to treat therapeutically. Initially, this was not easily accessible in Canberra and it was expensive which, because of his loss of employment, Mr Munro was not able to afford.
That position has now changed and such programs are available through ACT Health without payment.
On 18 January 2016, Mr Munro was referred to the counselling and treatment team within Alcohol and Drug Services of ACT Health for the purpose of considering the possibility of participating in that program.
At the present time, Mr Munro is in the preparation stage as he is “deemed not ready to participate in the skills group component”.
Mr Munro has attended 10 individual sessions, but has been absent from seven sessions and only punctual for three. This is somewhat problematic and suggests that I should have some reservation about his commitment to this rehabilitation arrangement. Mr Munro, however, has maintained that he is keen to participate in the program and certainly that has been the position he has taken consistently before me.
I had references from Mr Munro’s father and mother. Mr Munro’s father explained the circumstances of the further offending. He then said:
Alex has been living with, and greatly assisting, his mother, who is in the later stage of emphysema and recently underwent surgery for cancer. He has commenced a DBT course, the recommended long term treatment for his mental illness, diagnosed years ago, as borderline personality disorder and complex post‑traumatic stress disorder. It is very important he be allowed to attend these classes and to continue to assist his mother.
Mr Munro’s mother also wrote a reference and noted that Mr Munro is currently withdrawing from heroin by taking some Suboxone daily. She also added that “Alex has been very helpful and caring while living at my place”.
Consideration
The purposes of sentencing are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence does play a part. There seems no doubt that Mr Munro’s mental impairment has contributed to his offending behaviour and that reduces his moral culpability and reduces the effect that general deterrence should play in the sentencing process. See R v Verdins (2007) 16 VR 269 at 276; [32].
Nevertheless, it was a serious attack on his neighbour and has had serious long term consequences.
There is a necessity for some element of specific deterrence, if only to reinforce to Mr Munro that the use of violence is unacceptable and he must work at his therapy to ensure that he is able to function in the community without danger to its members.
As Mr Munro was found guilty at trial, he does not have the benefit of a discount for his plea of guilty, however, I do note that he was acquitted of the more serious charge that was preferred against him.
So far as the circumstances of the offending are concerned, I note that Mr Munro has, apart from this offence, completed all but a little less than two months of the three-year Good Behaviour Order that I made without any other breach.
He has also managed to access some rehabilitation, though he has only commenced that very recently.
While the offence that breached the Good Behaviour Order is the same as that for which he was earlier convicted, it is a much less serious version of the offence, both in terms of the circumstances under which it was committed and the consequences. I understand that the wound inflicted has now healed. Indeed, Mr Munro’s father in the witness box showed me his hand and, while I could see a small scar, it had obviously healed well.
It seems to me that, in the circumstances, the imposition of the sentence that was suspended would be disproportionate to the gravity of the breach offending, in particular, the circumstances of it, and so I will not impose the sentence.
It is also clear that Mr Munro has good prospects of rehabilitation, especially as he has access now to Dialectical Behavioural Therapy and pharmacotherapy.
I also accept that Mr Munro’s mental impairment is relevant to the approach that I should take, not only as noted above, as is it important to recognise that he would not be a suitable vehicle for general deterrence, but also because I consider that his mental impairment reduces his moral culpability.
When sentencing Mr Munro for the offence for which he was earlier convicted, I take into account that the further offending has reduced to a degree the trust that I could put in Mr Munro by giving him the leniency that a suspended sentence would otherwise constitute.
In my view, however, the circumstances do not require the imposition of a further period of full-time custody. I am prepared to accept the opinion of Mr Munro’s father and I do note the promising rehabilitation options.
Nevertheless, while I do not think a period of full‑time custody is appropriate, I do think that a sentence of imprisonment is the only proper response for the original offence in the circumstances.
Mr Munro, please stand.
1. I confirm the conviction of the offence of assault occasioning actual bodily harm.
2. I cancel the Good Behaviour Order made on 19 November 2012.
3. I sentence you to 18 months imprisonment to commence on 25 April 2016 and to take into account the periods of custody you have already served.
4. I suspend the sentence today for a period of 18 months.
5. I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from today with a probation condition that you be subject to the supervision of the Director-General, or her delegate, and obey all reasonable directions of the person delegated to supervise you, especially as to mental health treatment and counselling and drug treatment and counselling.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 18 August 2016 |
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