R v Munster
[2007] VSC 386
•18 April 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No 1565 of 2006
| THE QUEEN |
| v |
| KARL ANTHONY SHANE MUNSTER |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2007 | |
DATE OF SENTENCE: | 18 April 2007 | |
CASE MAY BE CITED AS: | R v Munster | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 386 | |
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Plea – intentionally causing serious injury, aggravated burglary – severely affected by alcohol, cannabis user – no prior history – 4 years and 9 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Mr S. Zebrowski |
HER HONOUR:
Karl Anthony Shane Munster you have pleaded guilty to one count of intentionally causing serious injury to Tony Campbell, and one count of aggravated burglary with intent to assault, whilst in possession of a knife. Both offences occurring on 5 March 2006 at or near the premises of Tony and Charlene Campbell in Pakenham. The maximum penalties for the offences are 20 years for intentionally causing serious injury and 25 years for aggravated burglary.
You are now aged 45, having been born on 17 July 1961, and have worked as a truck driver and/or cook for a large proportion of your life. You are currently on remand at Melbourne Reception Centre, having been incarcerated from the time of arrest on the night of the commission of these offences. You have no prior criminal history and accordingly this is the first time that you have been in any prison.
The Crown opened these offences in some detail and that material is not disputed in terms of the circumstances of the offending. You were aged 44 at the time, living in Pakenham. You had lived there with your wife and two children, aged nine and ten, until about a week before the offending. You and your wife had known each other some 12 to 13 years, and clearly lived together during that time, ultimately marrying in 2000. This was your second marriage. At around the end of February 2006 your wife asked you to leave. She was indicating that she needed some space and was not happy with the marriage. You did not leave initially and it was apparent that you were not able to come to terms with what was happening with your marriage and you started drinking heavily. You left for a short period of time, but returned home staying in the spare bedroom of your family home.
On 4 March, your wife took the two children to Henry Street, Pakenham, the home of her friend, Charlene, and her partner, Tony Campbell. During the course of the afternoon and evening she returned home to see you. You were upset, crying, and drinking heavily. She returned to her friend's house to stay the night. At about 11.30 that night you came to those premises, talked to your wife, and left. You returned to your home and collected two knives that you had used in your role as a cook. They were large, sharp knives. You came back about half an hour later and your wife went out to speak to you. You were described as drunk and irrational and there was a lot of noise.
Charlene and Tony Campbell were concerned and decided to intervene. You were yelling and screaming and either possibly kicking or falling over rubbish bins. When Tony Campbell went outside you were standing outside the fence line of the house, and he realised that you had a knife in each hand. When he realised that he picked up a plastic cricket bat and started swinging the bat in your general direction and he managed to knock one of the knives out of your hand and into the ground.
Tony Campbell said he was at that stage very scared. His wife, fortunately, had already returned inside along with your wife, and you were swinging quite wildly with the knives in the general direction of Tony and he was hitting at you with a plastic bat to try and keep you away. During this wild thrashing about you connected and inflicted a small cut on him. You then fell over, got up and started swinging the knife at him again. All of this was occurring in about the middle of the road. Tony Campbell then lost his balance and when he did so you made a run for the house. Tony got up, met you at the gate and tried to stop you coming in. You took what he describes as a great swing at him. That swing resulted in a severe knife wound to his abdomen area, and clutching his stomach he ran to the back door. When he got there he started calling out that he had been stabbed. His partner, Charlene, pulled him in through the back door and then he laid down on the kitchen floor. Those are the facts relating to the offence of intentionally causing serious injury.
You next tried to get into the premises and Charlene saw your arm poking through the back door with the knife in it, as she was pushing against the door to keep you out. Tony Campbell got up off the floor and helped push the door closed. As they did that, you dropped the knife and they were able to close the door. Those are the facts that relate to the offence of aggravated burglary.
The police had been called and when they drove into Henry Street they saw you walking along the street. They stopped the car and you lay on the ground in front of the vehicle. You told them that you were sure you had stabbed him. You wanted the police to shoot you.
The injury suffered by Tony Campbell was significant, although it was only the one wound. At the time of the ambulance officers arriving they found that he had a large ten centimetre open wound in the right upper area of the abdomen. With his bowel and omentum on show. What was described to the ambulance officers by his partner as "his guts hanging out", which is how the presentation of a wound such as this would be described by a lay observer. It was clearly a frightening time for the victim and his partner, and the others in the house.
As a result of the wound you inflicted, he lost his gallbladder. He had lacerations to his liver and duodenum. He remained two weeks in hospital and ultimately and fortunately made a good recovery, but with significant time not working, as his evidence in the Victim Impact Statements.
I have received two Victim Impact Statements, one from Tony Campbell, and one from his partner, Charlene Caldwell. They were tendered and became Exhibit 1. They detail the physical and emotional damage that you wrought upon them. They are no longer together, a fact that they blame on the events of this night and the consequences of the financial and emotional hardship that followed. Whilst I accept they have had the hardships mentioned, I am not prepared to accept that the responsibility for the breakdown of their relationship was solely yours and the events of this night. I do accept that it may well have contributed to those problems.
As I have already indicated, you have been in custody since the night of the incident and now have, on my calculations, spent 410 days on remand. The Crown accept that you were quite severely affected by alcohol on the night when you committed these crimes. That much is also evident from the inability of the police to interview you at around the time of the arrest, as you were found to be not fit to be interviewed until much later the next day.
The circumstances of the crime appear to relate to your inability to come to terms with the collapse of your marriage and your involvement in heavy alcohol consumption as your means of dealing with that problem. The resort to alcohol or any other form of anaesthetising agent does not, in any way, excuse the commission of these crimes, or any crimes of a similar type. You clearly knew what you were doing, you had the ability to go to your home and obtain the knives, the ability to return to the correct address, and thereafter terrify these people, including your wife.
Your counsel submitted that what you intended at the time of retrieval of the knives was to, as he expressed it, "commit suicide by police". In that you intended to brandish the knives around in such a manner that the police would be called and when they arrived, you would continue to display the knives in such a way that the police would have no choice but to shoot you.
Whilst this was a desperate scenario as painted by your counsel, and I do accept that initially that may have been your intention or part of your intention, it clearly was not your intention at the time of stabbing Tony Campbell, or your intention at the time of heading to the house and trying to gain entry into those premises where your wife and children were.
The knife thrust in front of you through the door is the most prominent feature that those in the house could see, and you were certainly not standing on the roadside calling attention to yourself in the manner you say you had intended. So whilst I do accept that at least the initial intention may not have been to cause harm to the occupants of the house, I do not accept that at the time of the commission of the offences, that intention remained, which is evidenced not only by the matters to which I have just referred, but by your plea of guilty, and your acceptance by that plea of the intent that you had at the time of the commission of each of these offences.
Counsel has submitted that there are a number of factors which I should take into account in your favour in mitigation of the penalty to be imposed for the offences. They include your lack of prior offending and the age that you have reached without having been in any trouble. Your plea of guilty at an early stage. The acceptance of a straight hand-up brief and no cross-examination accordingly of the victims and occupants of the house. I agree that they are significant relevant factors, and I will take them into account in your favour when imposing sentence.
In relation to the early plea, whilst it is was not at the most immediate instance, I believe it is appropriate to consider it a very early plea in light of your acceptance of the evidence and the negotiations that must necessarily occur between the Crown and the defence as to the appropriate matters to which an accused person should plead guilty.
Your counsel urged me to consider the circumstances of the offending in light of your previous lack of prior convictions and the occurrences between your wife and yourself in the weeks immediately prior to the offences. It was submitted that the whole incident came about as a result of your wife's flourishing friendship with Charlene Caldwell. You wanted her home more, more involved with you and the children. It is apparent from reading the materials that you, even according to your wife, did most of the cooking and cleaning whilst holding down a job. It is clear that you blamed the friendship with Charlene as one of the causes of your wife's growing restlessness within the marriage, and her desire for more freedom and space. You were very involved in your marriage and did not seem able to cope with the breakdown. As indicated, you have been married previously and counsel said you did not want to be again without your family, coming as you did from such a fractured family.
You are a person who used marijuana on a daily basis, not alcohol, and your wife had rarely seen you affected by alcohol previously. There are strong indications that at around the time of these offences you were in a highly emotional state. Shortly prior to the commission of the offences, you made plans to commit suicide by hanging. You had in fact fashioned a noose and hung it in the garage, but decided against it, due to the fear that you may not have been totally successful and then you would be dependent upon others to care for you if you suffered catastrophic injuries but did not die. You were actually found asleep on the garage floor the next morning, underneath the noose.
In a report, Exhibit 2, by Mr Joblin, a psychologist, he stated at p.5 under the heading "Assessment". "Mr Munster is a somewhat uncomplicated man, and he indicated that all he wanted to do was work, own a house, and a settle with his family. He wanted to enable them to avoid the type of upbringing he had as a ward of the State in New South Wales. It seems that he had made progress in achieving that ambition. He felt that he had a very positive relationship with Tracey, and that continued, until he believed Charlene was disrupting that relationship. It is important that his perception of the situation on which he acts, and that perception may not be consistent with the perception of others. Certainly to Mr Munster it appears that the relationship between Tracey and Charlene was placing his ambition to have a positive family environment in jeopardy. To Mr Munster that was intolerable, particularly as he felt those factors important to a harmonious home environment, such as jointly participating in family duties, were not being respected because she was spending an inappropriate amount of time with Charlene. Quite obviously the issue is complicated by what he reported to be an excessive use of cannabis and alcohol by both parties. These offences," he continued, "in my opinion, were Mr Munster's inappropriate attempts to cope with what he saw as a violation of his ambition to have a stable family situation. He reported that he felt he could no longer cope with the threat of the stability of his family. He tried to answer some of the problems with excessive alcohol abuse. He reported that the basis of the offences and his attendance at the house in Pakenham was not to commit the offences for which he is charged, but rather theatrically demonstrate his upset. He wanted to threaten the police so they would shoot him." He said, "There are elements in his presentation of a personality disorder that has seen his use of cannabis and alcohol leading up to this offence. It is seen in his report that he wanted to have the police shoot him. It is seen in his inability to deal more appropriately with the issues he felt were threatening the stability of his family. With regard to the present situation, he reported that he has lost everything he ever had. He believed he has lost his vehicle, tools and fishing gear. His mother died whilst in prison and he has lost his family. He has some contact with his sisters, but believes that he has no support in the community at all. This will be an issue of concern when he is released, and given his history, I am not of the opinion that he should be released to his own resources. "
I have to say, in respect of that matter, I agree with Mr Joblin, and a copy of this sentence, together with Mr Joblin's report will be forwarded to the Parole Board to ensure that that does not in fact occur.
I also take into account when sentencing you your personal background and history. You are the second youngest of four children. Your oldest sister is 50 and a housewife in Taree. Your second sister is 46 and a widow with two children, on a pension, living in the ACT. You have a younger brother. When you were about four or five, your parents separated, and you believe that your father may have been a psychiatric nurse and your mother a trained nurse. Some of the children, including you, stayed with your father for a very short time. After that you ultimately went to live with your mother, but your mother found herself unable to cope with four children, and you and your older sister were made State wards. You then went to live with your mother's sister in Ryde and then your mother's brother in Woy Woy. Both of those placements under the supervision of the Department.
Between the ages of 12 and 13, you left the care of your uncle and went back to live with your mother as your uncle was described by you as very harsh. You attended school in Balgowlah and in Year 10, in what your counsel described as the results of a not very good student, you left school. For a short time you enjoyed, I think your counsel described it as, "bumming around on the dole". But you then got a job in the Collaroy Services Beach Club as kitchen hand. You then moved up from there to cook and then you went to a fast food shop as a cook in Manly. You spent a short hiatus in air-conditioning and then went off to Canberra again as a cook. That is where you met your first wife with whom you have a daughter who is now aged 18. You have not seen her for over four years. You and your first wife were married for six years and your wife left you whilst you were living in Narre Warren, having moved there. You instructed your counsel that she left because she did not feel that you were a good enough provider. At that stage you were working in security for MSS. Then when you were aged about 32, you met Tracey who was only 19 at that stage, and as I indicated earlier, you are now married and have two boys, Damian ten, and Joshua nine. At the time of the offences you were working with Triple A Trusses as a driver. Your counsel stated that you have been working basically the whole time since you first commenced work, except for a period of about six months. Whilst you have been in custody you are currently now in the laundry service at the Remand Centre.
In terms of your relationship with your family, you met up again with your father when you were 19, you found he was living in West Australia and you lived with him for a very short time and have had virtually nothing in the way of contact since. You equally have virtually no relationship with your younger brother who you have not seen or spoken to for over ten years. You believe he may live around the Dubbo area. You have some contact with your sister in the ACT, to whom you are closest, but that would not be described as exceptionally close. Your mother died in October last year whilst you were in custody and shortly after your wife served you with your divorce papers, which I understand to have been in September. Initially you had contact with your sons in prison, but you have now not seen them for some time and you are seeking through the courts to establish phone contact with them, and hopefully ultimately upon your release, physical contact.
Your counsel has submitted on your behalf that I should take into account that you have lost everything. Your wife, your children, home, tools of trade and freedom. It is correct that you have lost those things and whilst I will take it into account to a degree, most of those losses are the consequences of your own actions on that night.
In terms of your prospects of rehabilitation, I do accept that your prospects are good, in that you have no history of violence, either in terms of a criminal record or in terms of what your wife said in her statement, which indicated that you had never been previously violent towards her or the children, and that you had always demonstrated an even tempered nature. Equally, you had managed to last 44 years in the community without committing any crimes, or demonstrating any anti-social behaviour, apart from your predilection to use what appears to me to be vast quantities of cannabis on a daily basis over many years.
You have demonstrated some remorse, not a high degree, but some, and at least a degree of insight into your offending, which I find to be encouraging in relation to your future rehabilitation.
The circumstances of this offending are such as to cause concern in respect of a number of matters. This behaviour was clearly intended to get your wife's attention and sympathy, possibly even to cause her harm. It was committed on a house in which there were young children, including your own. The weapons involved were sharp and very dangerous and you were intoxicated and would have been exceedingly difficult to reason with at that time.
Women are entitled to fee protected from being threatened or forced to remain in domestic situations when they no longer wish to continue those arrangements. They are entitled to leave or ask the partner to leave those domestic arrangements, and feel quite safe and secure in that situation. The same applies equally to a male in those circumstances. A wedding ring does to bind a couple together in such a manner that a person loses their ability to be able to determine what they wish to do with their own life. The courts must, and will continue, to support persons who wish to leave relationships with which they are unhappy. Whilst often those who are left are very upset with the situation, the resort to violence directed either to that person or others seeking to assist them, cannot be tolerated, and the court must impose sentences that deter, not only that person, but others who may be inclined to a similar view of the break-up of domestic relationships.
The consequences of your actions are that you have now totally lost the love and affection of your wife. You are alienated from your children, and there are very few left in the community with whom you have any relationship. They are quite severe consequences, but hopefully with time you may be able to re-establish your relationship with your sons, potentially even your ex-wife, not in terms of a romantic relationship, but in terms of co-parenting. But it will require a great deal of effort on your part.
As I said, I have to take into account those factors of mitigation to which I have referred, such as your plea of guilty, the state at which it is made, remorse, lack of prior offending, circumstances under which the offending occurred, but I need to balance those with the protection of your wife and other members of the community, just punishment, expression of the community's disapproval of crimes of this nature, personal and general deterrence and impose an appropriate and just sentence.
Nothing that I can impose in the way of sentence can give the feeling of security or safety back to those persons who were the subject of your crimes on this night, but it does need to reflect, as I say, a just punishment, mitigated by those factors to which I have referred.
There is no doubt that your offending on this occasion was serious and that much was conceded by your counsel during the plea made on your behalf. You came so close to taking another person's life, Mr Munster, on that night.
Accordingly, having taken all the matters to which I have referred into account in respect of Count 1, the offence of intentionally causing serious injury, I sentence you to be imprisoned for a term of four years.
In respect of Count 2, the offence of aggravated burglary, I sentence you to be imprisoned for a period of 18 months.
I direct that nine months of the sentence imposed upon Count 2 is to be served cumulatively on the sentence imposed on Count 1. That makes a total effective sentence of four years and nine months’ imprisonment and I further direct that you serve a minimum term of three years before becoming eligible for parole.
Pursuant to s.18(4) of the Sentencing Act, I declare that you have already served 410 days in custody and I direct that that should be noted in the records of the court.
I will grant the disposal order requested, and I will equally grant the retention order.
Do we all agree on the 410 days?
COUNSEL: Yes, Your Honour.
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