Regina v Munro [2000] NSWSC 1225

New South Wales Supreme Court

CITATION : Regina v Munro [2000] NSWSC 1225 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70043/00 HEARING DATE(S) : Tuesday, 19 December 2000 JUDGMENT DATE : 19 December 2000

PARTIES : The Crown Christopher Brett Munro JUDGMENT OF : Badgery-Parker AJ

COUNSEL : M Barr (Crown) B M J Toomey QC (Prisoner) SOLICITORS : Director of Public Prosections (Crown) Walsh & Blair (Prisoner) CATCHWORDS : Murder - manslaughter - self defence - Home Invasion (Occupants Protection) Act 1998 No 109 CASES CITED : R v Shillingsworth, unreported, Court of Criminal Appeal, 13 August 1998 R v Hanna Taouk, unreported, Court of Criminal Appeal, 20 March 1992 DECISION : See para 26

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BADGERY-PARKER AJ

TUESDAY, 19 DECEMBER 2000 70043/00 - REGINA v Christopher Brett MUNRO SENTENCE

1 HIS HONOUR: On 13 December 2000, following a brief trial before myself without a jury, Christopher Brett Munro was acquitted of murder but convicted of manslaughter. I remanded the offender in custody for sentence today. 2 The charge against the offender related to the death of Benjamin Phillip Prior on 26 December 1999 as a result of injuries inflicted upon him by the offender in the early morning of 25 December 1999. 3 In my judgment on 13 December 2000 explaining my reasons for the verdicts, I set out a brief summary of the facts which it is convenient to reproduce here. 4 In December 1999 the accused Christopher Brett Munro was residing at 13 Loughnan Street, Coolamon. The accused was then just over twenty years of age, having been born on 26 November 1979. Also resident there were his grandmother, Joyce Munro and that person's mentally disabled daughter, an aunt of the accused. A verandah which extended part way along the front of the building and down the whole of the west side of the building was furnished as a flatette, and it was in this part of the house that the accused resided. In the next door house, number 15, resided two brothers Benjamin Philip Desmond Prior (aged twenty-five years) and Gerard Michael Charles Prior (then aged seventeen years and two months). 5 Late on the evening of Christmas Eve, 24 December 1999 both the accused and Benjamin Prior were at a hotel in Coolamon referred to in the evidence as the "top pub". They played a game of pool. At some stage late in the evening or in the small hours of the following morning, an argument developed between them with regard to the accused's behaviour towards a girl who had interfered with the pool table. Peace was restored and the evidence does not reveal the extent of any residual ill feeling existing at the time when one or other of the two young men first left the pub. 6 The accused is an epileptic and on long term medication for that condition. That medication reacts badly with alcohol and it seems he probably should not drink at all. On the evening of 24 December he consumed a quantity of alcohol and soon after his return home he became violently ill, vomiting or retching continually for some hours. Some time after 3 am the sounds that he made attracted the attention of the brothers Prior in their house next door and became a source of irritation to them. Towards dawn, but while it was still dark, they went out of their house and towards the accused's home and yelled out to him to be quiet. The Prior brothers had been drinking and the quantity that each consumed was certainly sufficient to produce a significant measure of disinhibition. There was an exchange of words between them and him, with foul language used on both sides. Reference was made to the earlier incident at the pub, and Ben Prior challenged the accused to come out into the street to "sort it out". He refused to do so. 7 The Prior brothers commenced to walk towards the accused's home. Ben waited while Gerard Prior went back into his own home and picked up a cricket bat. His motive for doing so is unclear - whether simply to afford them protection in the event that the accused reacted violently or aggressively to their entry, or whether on the other hand it was his intention that he or his brother should physically assault the accused in any event. They walked the short distance down the street and turned into the pathway which leads directly from the street to the front steps of the accused's home. By the time they reached the steps the cricket bat was in the possession of Ben Prior though Gerard could not say in what circumstances the transfer occurred. Ben Prior went up the steps onto the verandah. His brother was certainly on the steps if not on the verandah itself, and both young men were visible to the accused as he moved along the verandah towards them. A struggle took place between the accused and Ben Prior, and in the course of that struggle the accused obtained possession of the cricket bat. He commenced to swing it at Ben Prior and some blows made contact with him. That led Gerard Prior to run away down the path towards the front gate, and Ben Prior turned to follow him. The accused continued to strike at him with the bat. At a point about four metres from the house and two metres short of the gate, Ben Prior collapsed into shrubbery on the right hand side of the path. The accused continued to strike Ben as he lay on the ground, as well as fending off Gerard each time he tried to intervene. 8 Before the accused took the cricket bat from Ben Prior, Ben Prior had swung the cricket bat at the accused at or above shoulder height in an attempt to hit him. If those blows had landed they represented an obvious risk of serious injury, even death to the accused. It was after evading two such swings of the bat or possibly more that the accused obtained possession of the cricket bat and continued as I have just described. 9 The accused hit Prior two or three times while Prior was still on the verandah and three or four times more as Prior was running on the path. I found that the significant head injuries were not inflicted while the two men were still on the verandah but that they were inflicted by the last blow or blows delivered immediately before Ben Prior fell to the ground. 10 The offender was not guilty of murder because the Crown failed to establish that his act causing the death of Ben Prior was done with intent to kill or inflict grievous bodily harm. He was guilty of manslaughter because the Crown satisfied me beyond reasonable doubt that the fatal blow was not struck in lawful self defence. I was satisfied that the accused did not in fact believe, at the time when he struck the fatal blow, that it was necessary for him to act as he did in self defence; and I was satisfied that even if he had had such a belief, there were no reasonable grounds for such belief. I expressed my conclusion in the original judgment as follows: "I am satisfied beyond reasonable doubt that when he struck the blows which put an end to the deceased's flight and brought him to the ground, the accused had ceased to believe that it was necessary for him to do what he was then doing by way of self defence. He was striking the deceased not in the belief that it was necessary to do so in self defence but in a desire to stop the deceased getting away." 11 I accepted also that the offender was concerned to discourage Prior from any thought of returning or renewing the attack, and I said "I accept that he believed that that was reasonable conduct on his part; but that belief is not in my view the same as a belief that it was necessary to do what he did, that is to say to continue striking Prior as he was running down the path in order to defend himself against Prior's attack. Simply, the attack had ceased." 12 The offender acted in a way which was unlawful and in doing so took a human life. Recognition of that is the first step in sentencing for manslaughter. It is a recognition that manslaughter, however it occurs, is to be regarded as a serious offence. Nevertheless the circumstances which may constitute the offence of manslaughter are very diverse and they may often reveal circumstances of significant mitigation. Because the circumstances of manslaughter vary so widely, it is in my view of no assistance in sentencing for manslaughter, to have regard to statistics and it is rarely of assistance to compare the facts of individual cases. 13 I have examined the cases to which counsel on either side referred me but I have with respect found them of little assistance. The most that can be gleaned from that sort of exercise, in my view is that if a case exists where the criminality far exceeds that involved in the instant case, the sentence imposed in that other case may be regarded as indicating the extreme upper limit of the relevant range. The circumstances of the present case are extremely unusual. It is true as the Crown pointed out that in the cases of Shillingsworth unreported, Court of Criminal Appeal, 13 August 1998 and Hanna Taouk, unreported, Court of Criminal Appeal, 20 March 1992, the circumstances were, as here, that the accused person had been set upon by the deceased; but that is far as the similarity goes. 14 The circumstances of the present case reveal very powerful mitigating circumstances. They also reveal gross provocation of the offender by the deceased and his brother, and had I been satisfied that the offender had acted with murderous intent, I would have found that the act causing death was an act done under provocation, so that in any event murder would have been reduced to manslaughter. 15 The circumstances of mitigation appear in general terms from the facts I have stated above. Specifically they include the particular matters which I referred to in the original judgment as circumstances relevant to be considered on the issue of intent, and on the issue of the existence of reasonable grounds for any possible belief on his part that it was necessary for him to act as he did in self defence. In paragraph 83 of the original judgment I said "They include that the accused's home was invaded in hours of darkness by two burly young men, one of whom was armed with a cricket bat and one of whom, at least in the accused's perception, during the confrontation attempted to arm himself with the stick or piece of board which the accused had in the house with him; that having invaded the premises, Ben Prior attempted to assault the accused with the cricket bat in a violent manner such that if the bat had connected the accused might well have suffered extremely serious injury even death; that the accused was very ill and had had little sleep, having been vomiting continually for several hours; that the accused was conscious of the presence in the house of two defenceless women, his seventy-four year old grandmother and his mentally disabled aunt; that the accused suffered from epilepsy by reason of a childhood head injury and may be taken to have been well aware of the potentially serious risks to himself should he suffer a further head injury; and that the accused was a person of limited intellectual capacity." 16 To that I would add that, very much to his credit, the offender cooperated fully with the investigating police, at no stage seeking to deny that it was his act which caused the death of Prior. 17 The references to the offender's limited intellectual capacity is based upon information in a report from Dr Peter English of Coolamon who has been the offender's general practitioner since 1994. The offender has been treated for epilepsy following a fall from a horse when he was 9 years old. There has been general difficulty in controlling his seizures, particularly as he became older and experimented with alcohol and marijuana. In 1995 he was referred to the Serfontein Clinic where a diagnosis was made of "oppositional defiant disorder" and "attention deficit hyperactivity disorder". It was at that time that his IQ was assessed at 68. Having observed the offender's behaviour during the recorded police interview and his ability to understand and answer fluently the questions which were put to him and to express more than adequately his thoughts and feelings about the matter, I was surprised to read that his IQ was assessed at so low a figure. 18 For the purpose of sentencing I have been provided with a further report from Dr English, the thrust of which is that the offender suffers from a complex epileptic syndrome, and requires regular medication twice daily. Without medication, he runs a substantially increased risk of seizures which could result in physical harm even, potentially, death. I accept that opinion. It is, of course, the responsibility of correctional authorities to ensure that such a prisoner does receive prescribed medication on schedule, and one assumes that the authorities are generally diligent to see that that occurs. However, many years of experience on the bench has demonstrated to me that errors and omissions do occur; and the prisoner's need for medication (and indeed his general medical condition) are matters that go to increase the burden of imprisonment upon him, and may therefore properly be taken into account in mitigation of penalty. I take them into account accordingly. 19 A report was tendered also from Dr Joseph Moloney, consultant paediatrician who has been involved in the care of the offender since the horse riding accident in 1988 which seems to have been the genesis of his epilepsy. That report confirms the diagnosis and the general description of his history and condition provided in Dr English's first report. Dr Moloney referred to the development of behavioural disorder around 1989 following a period of family break up and separation. His schooling was disrupted and that, together with his relatively low IQ is reflected in the lack of any job qualifications. 20 The offender has not been regularly employed. There was a period of about one year in about 1995 when he worked for his grandfather in a steel yard, not formally for wages but by way of payment for a caravan which his grandfather provided for him to live in. Not surprisingly, he was not in employment at the time of the killing. It does not seem that his employment prospects in the future are particularly good, having regard to his lack of education and his medical/psychological problems. 21 Consistently with his psychological history the offender has some criminal record for the most part minor offences dealt with variously by recognizance and/or fine. Of more concern are the conviction in 1996 for possession of an offensive implement and two convictions on 26 October 1998 for two separate breaches of an apprehended domestic violence order. In none of those cases however, did the circumstances reveal any actual perpetration of violence and they do not give rise to any concern about the future aggressive or violent behaviour. There is no reason to believe that the offender will present a risk to the community upon his release. 22 He has the support of his grandmother which will no doubt be of assistance when he resumes life in the community, but she is of advanced years and there must be a question as to how long that support will continue. 23 It was submitted by Mr Toomey QC on behalf of the offender that this was not a case where considerations of personal deterrence nor of general deterrence should have much influence on the sentence. I accept that submission. That is not to say that those considerations are irrelevant, they are relevant and important in every sentencing process, but in this case they are satisfied without the need for any heavy sentence. The circumstances are extraordinary. Probably in the life of this offender unique. He is unlikely ever again to be subjected to such gross provocation, nor to such a terrifying occasion of self defence. If he is, his experience of arrest and of punishment to date will adequately serve to deter unnecessary aggression. Likewise as to general deterrence. The fact that this young man has been arrested and incurred punishment for what he did sends a clear message to the whole community that the common law of self defence and the statutory law of self defence as stressed in the Home Invasion (Occupants Protection) Act 1998 are not a charter for unrestrained or unnecessary violence. Nothing needs to be added to the sentence of this account. 24 The offender was arrested on the morning of 25 December 1999 and the sentence to be imposed upon him must date from then. That sentence must be of sufficient length to reflect the community's concern at the use of excessive violence, but must also reflect very clearly the matters of mitigation. 25 The community's concern about violent home invasion is well known and was indeed the trigger for the introduction of the Home Invasion (Occupants Protection) Act 1998, the effect of which was much debated in the course of these proceedings. It is easy to understand the sense of outrage which the prisoner felt and was entitled to feel in the circumstances which I described earlier. In my view the gravity of his offence is substantially mitigated thereby. 26 Christopher Brett Munro you have been convicted of the offence of manslaughter. For that offence you are sentenced to imprisonment for a term of three years which, having commenced on 25th December 1999, will expire on 24th December 2002. In respect of that sentence I determine a non-parole period to expire on 22 December 2000. I order that the offender be released on parole at the end of that non parole period. I impose the following conditions of that parole order: