Justin Monfries v The Queen

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Murrell CJ,Burns J,Ross J
• Judgment Date: 16 October 2014
• Date: 16 October 2014
• Docket Number: File Number(s): ACTCA 38 of 2013

[2014] ACTCA 46

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Before:

Murrell CJ, Burns and Ross JJ

File Number(s): ACTCA 38 of 2013

Justin Monfries

(Appellant)

and

The Queen

(Respondent)

Representation:

Counsel

Mr S Whybrow (Appellant)

Ms M Jones (Respondent)

Cases Cited:

AJB v The Queen (2007) 169 A Crim R 32

Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146

Auld v The Queen [2013] ACTCA 21

Balthazar v The Queen [2012] ACTCA 26

Barbaro v The Queen (2014) 88 ALJR 372

Bombardieri v The Queen (2010) 203 A Crim R 89

Bugmy v The Queen (2013) 249 CLR 571

Bui v Director of Public Prosecutions (Cth) 244 CLR 638

Burrows v The Queen (2007) 181 A Crim R 333

Cameron v The Queen (2002) 209 CLR 339

Dinsdale v The Queen (2000) 202 CLR 321

Dionys v R (2011) 217 A Crim R 280

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1

Director of Public Prosecutions v Johnstone (2006) 168 A Crim R 223

Fusimalohi v The Queen [2012] ACTCA 49

Hili v The Queen (2010) 242 CLR 520

House v The King (1936) 55 CLR 499

Hudson v The Queen (2010) 205 A Crim R 199

Islam v The Queen [2013] ACTCA 10

Lowe v R (1984) 154 CLR 606

Lowndes v The Queen (1999) 195 CLR 665

Markarian v The Queen (2005) 228 CLR 357

Milat v The Queen [2014] NSWCCA 29

MJL v The Queen [2007] NSWCCA 261

Muldrock v The Queen (2011) 244 CLR 120

Munda v Western Australia (2013) 249 CLR 600

R v AB (2011) 59 MVR 356

R v Ahmed [2006] VSCA 200

R v Barton (2001) 121 A Crim 185

R v Black (unreported New South Wales Court of Criminal Appeal 23 July 1998

R v Borkowski (2009) 195 A Crim R 1

R v Campbell [2010] ACTCA 20

R v Cousins [2002] NSWCCA 81

R v Creighton [2011] ACTCA 13

R v De Simoni (1981) 147 CLR 383

R v Dib [2003] NSWCCA 117

R v Ellis (1993) 63 A Crim R 449

R v Engert (1995) 84 A Crim R 67

R v Flowers [2014] ACTCA 13

R v Franklin [2009] VSCA 77

R v Grenon [2013] ACTSC 292

R v Henry (1999) 46 NSWLR 346

R v Howard (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 22 November 2012)

R v Israil [2002] NSWCCA 225

R v Jurisic (1998) 45 NSWLR 209

R v Martin [2013] ACTSC 280

R v MJR (2002) 54 NSWLR 368

R v Ryan (2003) 141 A Crim R 403

R v Scholes (1998) 102 A Crim R 510

R v Sharma (2002) 54 NSWLR 300

R v Swingler [2001] VSCA 26

R v Taylor Schmidt [2013] ACTSC 295

R v Thomson (2000) 49 NSWLR 383

R v Thorn [2010] ACTCA 10

R v Tracey-Campbell [2010] ACTCA 20

R v Verdins (2007) 16 VR 269

R v Whyte (2002) 134 A Crim R 53

R v Wright (2013) 229 A Crim R 245

R v Wruck [2014] QCA 39

R v Yaldiz [1998] 2 VR 376

Reid (a pseudonym) v The Queen [2014] VSCA 145

Stalio v The Queen (2012) 223 A Crim R 261

Veen v The Queen (No 2) (1988) 164 CLR 465

Williams v R [2012] NSWCCA 286

Wong v The Queen (2001) 207 CLR 584

WW v R [2012] NSWCCA 165

Legislation Cited:

Crimes Act 1900 (ACT) s 29

Crimes (Penalties) Amendment Bill 2001 (ACT)

Crimes (Sentencing) Act 2005 (ACT) ss 33, 35, 35A, 57, 61

Criminal Code 2002 (ACT) s 318(1)

Human Rights Act 2004 (ACT) s 22(1)

Crimes (Sentencing Procedure) Act 1999 (NSW) s 22

Sentencing Act 1991 (Vic)

Catchwords:

APPEAL — Criminal Law — Appeal against sentence — whether sentences manifestly excessive — taking vehicle without consent — culpable driving causing death — nature of appellate court's discretion to resentence — considerations of guilty pleas, mental health, current sentencing practice

Decision:

Appeal dismissed.

Murrell CJ

The sentences the subject of appeal

1 The appellant appealed against sentences imposed on 18 June 2013. On that day, he was sentenced for offences of culpable driving causing death (contrary to s 29(2) of the Crimes Act 1900 (ACT) ( Crimes Act)), culpable driving causing grievous bodily harm (contrary to s 29(4) of the Crimes Act) and taking a vehicle without consent (contrary to s 318(1) of the Criminal Code 2002 (ACT) ( Criminal Code)). The offences were committed on 3 May 2012.

2 The maximum available penalties for offences against s 29(2) and s 29(4) of the Crimes Act and s 318(1) of the Criminal Code are, respectively, 14 years' imprisonment, 10 years' imprisonment and five years' imprisonment.

3 The sentencing judge imposed a sentence of 10 years and nine months' imprisonment for the offence of culpable driving causing death (taking into account three offences of failing to stop after an accident and one offence of failing to give particulars after a collision). His Honour sentenced the appellant to five years and four months' imprisonment for the offence of culpable driving causing grievous bodily harm. His Honour imposed a sentence of two years and eight months' imprisonment for the offence of taking a vehicle without consent. In each case, the sentence deemed to be otherwise appropriate was reduced by 10% for the plea of guilty, i.e. the sentences were reduced from 12 years' imprisonment, six years' imprisonment and three years' imprisonment respectively.

4 The appellant submitted that the sentences imposed for the offences of culpable driving causing death and taking a vehicle without consent were ‘manifestly excessive’.

5 When the offences were committed on 3 May 2012, the appellant was on bail for offences of assault occasioning actual bodily harm and common assault. After the subject offences were committed, he was sentenced for the assaults to 13 months' imprisonment from 14 March 2012 to 13 April 2013.

6 On 16 March 2012, Refshauge J had sentenced the appellant for an offence of attempting to obtain money by deception and other matters. A sentence of 12 months' imprisonment for attempting to obtain money by deception was commenced on 28 January, and was suspended from 16 March 2012. As at 3 May 2012, the appellant was serving the suspended portion of that sentence.

On 18 June 2013, the sentencing judge resentenced the appellant for the offence of attempting to obtain money by deception, imposing a sentence of 12 months' imprisonment. No allowance was made for the period spent in custody from 28 January 2012 to 16 March 2012.

7 In summary, on 18 June 2013 the sentencing judge imposed the following sentences:

attempt to obtain money by deception	12 months	14/9/12 – 13/9/13
take vehicle without consent	2 years 8 months	14/1/13 – 13/9/15
culpable driving – grievous bodily harm	5 years 4 months	14/1/14 – 13/5/19
culpable driving – death	10 years 9 months	14/1/15 – 13/10/25

8 A nonparole period was set to start on 14 March 2012 and end on 13 January 2022.

9 As a result of the sentences imposed on 18 June 2013, the appellant was to be imprisoned for 13 years and seven months (from 14 March 2012 to 13 October 2025), of which 12 years and nine months (from 14 January 2013 to 13 October 2025) related to the offences committed on 3 May 2012. He was to serve a nonparole period of nine years and 10 months (14 March 2012 to 13 January 2022), representing 72% of the total period of imprisonment.

10 On 19 November 2013, Penfold J sentenced the appellant for an offence of riding or driving a motor vehicle without consent that had been committed three days before the subject offences. Her Honour imposed a sentence of 19 months' imprisonment from 14 October 2024 to 13 May 2026 (reduced for the plea of guilty by 20% from a starting point of two years' imprisonment) and extended the appellant's nonparole period by two months to 14 March 2022 (ten years from 14 March 2012).

The facts

11 At about 4.00pm on 3 May 2012 the appellant stole a motor vehicle from a public car park in Manuka. He hot-wired the vehicle and drove it towards Woden. He was under the influence of alcohol and cannabis.

12 At about 4.30 pm he performed a ‘burnout’ near an oval in Hughes. He then drove towards the intersection of Webster and Groom Streets, Hughes. The offender caused the vehicle to collide with a vehicle that was stationary at the intersection, and that vehicle spun 180 degrees. The offender failed to stop. He proceeded at speed along Groom Street. A witness to the collision called police and then followed the appellant's vehicle. The appellant stopped to inspect the considerable front end damage to the vehicle that he was driving. He then drove in an erratic manner to a service station in Hughes. At the service station, he stopped, filled the vehicle with petrol and, without paying, drove away at high speed.

13 In Garran, police observed the damaged vehicle. Because of the speed at which it was travelling, they followed it but did not give pursuit. The appellant drove through a red light at the intersection of Yamba Drive and Kitchener Street, travelling at a speed of 118 km/h in a 60 km/h speed zone. Police activated their sirens. The appellant continued down Yamba Drive, and approached the Canberra Hospital. He came to a second red light, which was at a pedestrian crossing at the intersection of Yamba Drive and Bateson Road, immediately outside Canberra Hospital.

14 At about 4.35 pm, the victims and Ms Strapps, who were employees at the Hospital, had finished work and were crossing the pedestrian crossing in accordance with a green ‘walk’ sign. Ms Strapps was walking ahead of Ms Bumpus, and Ms Cox was the last to cross.

15 The appellant's vehicle passed behind Ms Strapps. The driver's side of the vehicle struck Ms Bumpus, propelling her forward. She landed on her right leg, sustaining very serious injuries; a comminuted fracture of her left thigh, a fracture dislocation of the right knee joint with torn ligaments, and a dislocated right ankle...