R v Todd MUNTER [2009] NSWSC 158

New South Wales Supreme Court

CITATION : R v Todd MUNTER [2009] NSWSC 158

HEARING DATE(S) : 15/12/2009, 06/03/2009

JUDGMENT DATE : 9 April 2009

JUDGMENT OF : Howie J at 1

DECISION : The offender is sentenced to a term of imprisonment of 3 years 3 months made up of a non-parole period of 18 months to date from 6 October 2008 and to expire on 5 April 2010 and a balance of term of 21 months to commence on 6 April 2010.

CATCHWORDS : Criminal Law - Sentence - Manslaughter - Unlawful dangerous act - Offender assaulted victim who died of heart attack.

CATEGORY : Principal judgment

PARTIES : Regina v Todd Munter

FILE NUMBER(S) : SC 2008/15420

COUNSEL : T Thorpe - Crown P Young SC - Offender

SOLICITORS : S Kavanagh - Crown S O'Connor - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HOWIE J

THURSDAY 9 APRIL 2009

2008/15420 REGINA v TODD MUNTER

REMARKS ON SENTENCE 1 HIS HONOUR: On the afternoon of 31 October 2007 the deceased, Kenneth Proctor, was watering the lawn outside his home in Sylvania. Although there were water restrictions in force at the time, it was permissible for the deceased to be carrying out this activity. As the offender was walking along the street, he started to abuse the deceased because he believed that the deceased was acting in breach of the water restrictions. 2 A heated exchange took place between the two leading to the deceased hosing the offender. As a result the offender entered onto the deceased's property and approached him in a threatening manner, yelling abuse. The offender struck the deceased with a closed fist jolting his head back and causing him to stumble. The offender then pushed him to the chest with both hands causing the deceased to fall backwards forcibly to the ground. As the deceased attempted to get to his feet, the offender kicked him to the midsection with moderate force. 3 The deceased was able to regain his feet and the argument between the two was renewed. Neighbours who had witnessed the incident approached to intervene. One of these was an off-duty police officer. He told the offender to settle down and stop swearing. The offender said he had done nothing wrong and started to leave. The police officer however restrained him, placing him under arrest for assaulting the deceased. The offender said, "I have had a bad day. Look at my back I had to have an operation". He then lifted his shirt showing a large scar to his lower back. He said, "See, things have been pretty bad, I didn't mean to do it". 4 While this conversation was occurring, the deceased became physically distressed and crouched to his knees. He seated himself on the lawn and then lay outstretched. The officer asked if he was all right but there was no response. The deceased's face changed to a purple colour and there was no sign of breathing. The officer with the assistance of the offender started to perform CPR. Another neighbour then took over attempts to revive the deceased. Eventually the deceased was conveyed to hospital where life was pronounced extinct. 5 The deceased, who was aged 66 years, had a history of hypertension, and an enlargement of the left side of his heart. The autopsy revealed that he had severe and potentially fatal heart disease and had suffered a previous heart attack. His death was a result of a cardiac arrest due primarily to his existing heart disease. Death could have occurred at any time, however it was highly likely that his death was brought on by the altercation with the offender shortly before he died. The plea of guilty by the offender accepts that his acts contributed to the death of the deceased sufficient to make him criminally liable for the death. 6 The offender was arrested by a police officer who had attended the scene. He was weeping and his hands were shaking. He was taken to the police station and eventually charged with murder. He remained in custody until 6 March 2008 when Hidden J granted him bail. He was arraigned before me on 15 December 2008 on a count of murder but pleaded guilty to an alternative count on the indictment of manslaughter. The Crown accepted that plea in full discharge of the indictment. I continued his bail until 6 March 2009 on which date I remanded him in custody for sentence. 7 The offender was born on 23 November 1970 and hence was just short of his 37th birthday on the day of the incident resulting in the death of Mr Proctor. He has a record for driving offences of some seriousness but they can be disregarded in determining the appropriate sentence for the present matter. He has no record for violence. I am prepared to accept that he should be regarded as a person of prior good character. That finding is supported by a number of testimonials from members of the community placed in evidence before me. There is also no doubt that the offender is truly remorseful for the death of the deceased. This was apparent at the time of the death of the deceased by the offender's attempts to assist in his resuscitation and the offender's general demeanour at that time and later. It is also apparent in the testimonials before me and the references in reports to his being tearful when recounting the incident. 8 The offender suffered a devastating back injury and underwent spinal surgery in 2006. Unfortunately in early 2007 he fell causing further injury, disturbing the plates that had been inserted and fracturing one of the screws. This resulted in what his surgeon referred to as "intractable pain". There was further surgery in July 2007 but the problems continued. On 31 October, the date of the incident, the offender had attended upon his surgeon. He was unwell with pain. The surgeon described him as being "sweaty and tremulous". He had further x rays that day which revealed that one of the screws on the plate was broken. The surgeon revised his opinion of the effects of surgery and determined that the offender did not have a solid fusion. This may have been as a result of an infection. The surgeon "hinted" to the offender that that there would be a need for another operation. 9 There is little doubt that the offender was, at the time when he came across the hapless deceased, suffering the effects of pain that had been noticed earlier that day by his orthopaedic surgeon and frustrated by the fact that he would need further surgery. The pain made him irritable and hence his verbal, and ultimately, physical attack upon the deceased. He had consumed some alcohol but I do not think that has much to do with what happened. 10 Some of the events of the day leading up to the confrontation with Mr Proctor are set out in a psychiatric report tendered before me. I treat that account with some scepticism because the offender did not give evidence and so the material is untested. The offender said that he had taken a large amount of analgesic as he was to attend a TAFE course that evening. He had also consumed cans of alcohol because he was agitated by the consultation with his surgeon, the thought of further surgery and the effect of this prognosis upon his then girlfriend. He met his father and they went to the offender's flat. The girlfriend was informed of the results of the consultation and was distressed. They went to lunch together but the girlfriend left in an emotional state. It was as he was trying to find her that he came across the deceased. I am prepared to accept this account and to some degree it is in accord with what the offender said to the off-duty police officer about his "having a bad day". 11 The offender was released to bail from his remand custody in order to undertake further surgery. This occurred in July 2008. The surgeon believed that the procedure went well but the offender was slow to recover. His pain has returned and in January of this year he was still on high doses of narcotic medication. The surgeon does not expect that the offender will ever be pain free and it will be uncomfortable for him to sustain any prolonged position. He will clearly find it more difficult in custody because of his injury and would, I imagine, spend any sentence largely in the prison hospital. 12 There is little else in the psychiatric report of significance to the task of sentencing the offender. The offender has clearly suffered a chronic pain disorder as a result of the injury to his back and the subsequent surgery. I am satisfied that his irritability with Mr Proctor was a result of pain and disappointment with its prognosis. He had been suffering from depression and anxiety as a result of his injury and its treatment. He has also since the incident ruminated on the events leading up to Mr Proctor's death and its effects upon himself and his family. There is a reference in the report to another matter that may need to be addressed by psychiatric assistance but that is long-standing and does not in my opinion have any relevance to the commission of the offence or to what punishment should be imposed upon the offender. 13 I am prepared to accept that the offender will need some psychiatric treatment to help him cope with a number of problems not the least being pain and the effect upon him of this offence. I do believe that this material gives rise to special circumstances in his case. The difficulty for him in serving a custodial sentence as a result of his constant pain and physical restrictions due to his injury are matters principally to be taken into account in determining the total sentence. 14 Of course sentencing is largely about the offender and I can understand that victims, and in particular the family of the deceased, may feel frustrated by the attention paid to the problems of the offender when they have themselves suffered grievously as a result of the death of the deceased. But sentencing is a complex task with various factors being taken into account in an attempt to derive a sentence that is just, both to the offender and the community. I wish to make it clear that I have not lost sight of the enormous impact upon the family of the deceased as a result of the actions of the offender. However I cannot increase the sentence because of that fact. But I am conscious that it must be particularly hard to cope with the loss of a loved one as a result of such a senseless act of violence inflicted upon a totally innocent person. When he died, the deceased was simply going about his life without wishing to disturb any other person, let alone a complete stranger who happened to come upon him in an irritable state of mind. 15 But sentencing can never be simply about trying to redress the loss suffered by the victim or victims or in some way determining punishment by assessing the value of the loss of a life. That would be an impossible task to perform. The simple fact is that nothing that I could do to the offender would compensate for the loss he has occasioned to the deceased's family. Retribution is only one aspect of punishment although an important one when the offence involves the taking of an innocent life. But I have to determine the punishment appropriate not only to reflect the result of his actions but also to reflect the actual culpability of what the offender did. That is the difficulty in this particular exercise. 16 No matter how he has been portrayed in the media, the offender is neither a ruffian nor a bully. He is not a bad person in any shape or form. But he has committed a crime and must be punished for it particularly because he has caused the loss of human life. Part of that punishment must include an attempt to deter others from public violence. But in this case deterrence is very much of less significance than might otherwise have been the case where, for example, an intoxicated person picks a fight with another because of some perceived wrong occasioned to him. This case is in marked contrast to others that come before the courts where death has been a result of unprovoked violence arising from public drunkenness, hooliganism or plain thuggery displayed by young men. Those are matters of increasing concern to the community and call for heavy punishment. But this is not such a case. I do not accept the Crown's submission that this is a suitable vehicle to denounce public violence generally. 17 This is a real human tragedy not just for the family of the deceased but for the offender and his family as well. It was simply the interaction of a number of factors none of which were the offender's fault that resulted in him being primed as a time bomb waiting to go off on this particular day. The offence is at the low range of manslaughters by unlawful and dangerous act. An assault upon a 66 year old man with sufficient force to knock him off his feet and including a kick to his midsection is a dangerous act within the scope of the offence. It was a nasty assault and totally unwarranted, yet the force used was apparently not great. The injuries inflicted upon the deceased by the assault were relatively minor. If the deceased had not suffered from a very diseased heart, he would not have been seriously injured. If that had been the case, it is likely that the offence would have been no more serious that an assault. In any event had the deceased not died, the offender would not have gone to gaol for what he did. 18 But he must now be punished for bringing about the death of the deceased even though that death could have occurred at anytime without any assistance from the offender. The offence and its punishment must be seen from that perspective. Similarly the aggressive conduct of the offender must be considered in the context of the unchallenged evidence that he was suffering from chronic pain that left him irritable, frustrated and disappointed by the failure of surgery to bring him relief. It is clear that his particular state of mind was a result of the events of that morning and principally arose from the consultation with his surgeon. He was showing signs of distress and anxiety at that time. There was also his concern for his girlfriend and the emotional turmoil that had arisen that morning. 19 It should also be borne in mind that prior to this day the offender had not reacted to his terrible physical state by staying at home and feeling sorry for himself or by taking it out on others because life was unfair to him. Nor had he used his injury and constant pain as an excuse for getting drunk and misbehaving himself. Nor did he turn to illegal drugs as is often the case with people who seek to relieve themselves from life's difficulties. Rather he had tried to make the best of his position by seeking retraining at TAFE because he was restricted from carrying out his normal trade. Despite his injury, he was endeavouring to be a worthwhile member of the community. 20 I have previously expressed the view that the pattern of sentences for manslaughter are out of kilter with the maximum penalty for the offence and with sentences imposed for other offences. I believe that sentences for manslaughter often fail to reflect sufficiently the loss of life resulting from a serious criminal act. But whatever be the appropriate sentencing range for offences of dangerous act manslaughter, this is a case that would come towards the bottom of it. 21 The offender has been assessed as unsuitable for a sentence to be served by way of periodic detention. This is because of a fear that his safety might be at risk because of the nature of the offence. It is ironic that because the offender is not a young thug, he cannot be given an easier option to serve a gaol sentence than has been provided to persons far more culpable than he. But his counsel quite properly conceded that as that option is not available there is no escaping the imposition of a full-time custodial sentence. 22 A question has arisen as to the discount that should be given for his plea of guilty. A letter written by his counsel to the Director was placed before me for this purpose. However, the simple fact is that the offender did not offer to plead guilty to manslaughter in the Local Court. That may have been because of a concern as to whether the causation between the offender's acts and the death could have been proved. But whatever the reason, the plea did not occur at the earliest opportunity and the utilitarian value of the plea was thereby reduced. The discount should be about 20 per cent from a sentence of 4½ years imprisonment. 23 The offender has served about 5 months in custody. The proper course where there has been a break in the period of remand custody is to backdate the sentence even though that may mean that the sentence commences upon a date when the offender was not actually in custody. There is a degree of fiction in the nominated commencement date. But that course is adopted so that the offender is assured that he actually has received credit for the period spent on remand and the sentence imposed does not appear to be unduly lenient by being reduced by the time served. So this sentence will date from 6 October 2008 but will not otherwise include the period he has already served. As I have already indicated, I have found special circumstances by reason of his need for psychiatric assistance on release. 24 I have considered the cases to which the Crown has referred me which are the one-blow cases of manslaughter or something similar. Although this was more than one blow, none of the assaults were of any significant force so far as causing injuries were concerned. The only injuries observed at the autopsy that can be attributed to the assault by the offender were as follows: grazes and bruising to the upper rear aspect of the scalp, bruising to the left side of the face, bruising and skin tears to both arms. As I have already indicated, I do not believe this offence is in the same degree of seriousness as offences where there was a very much more substantial connection between the assault and the death. The offence is also mitigated because of the cause for the aggressive conduct of the offender that was completely uncharacteristic to his personality. The sentence has been significantly reduced because of the effect of his injuries on his imprisonment. I understand that the sentence is a lenient one and is at the very bottom of the range but I believe it is appropriate. 25 The offender is sentenced to a term of imprisonment of 3 years 3 months made up of a non-parole period of 18 months to date from 6 October 2008 and to expire on 5 April 2010 and a balance of term of 21 months to commence on 6 April 2010. The consequence of that is that he must serve continuous custody until 5 April 2010 and then he is eligible to be released to parole. **********