Director of Public Prosecutions v MacMurray
[2021] VCC 1475
•4 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00132
Indictment No. L119111826.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON MACMURRAY |
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JUDGE: | His Honour Judge Hannebery | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2021 | |
DATE OF SENTENCE: | 4 October 2021 | |
CASE MAY BE CITED AS: | DPP v MacMurray | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1475 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Common law assault - aggravated burglary - intentionally damaging property – sentencing indication - lower end example of an inherently serious offence - reasonable prospects of rehabilitation - COVID-19
Legislation Cited: Sentencing Act 1991
Sentence: Total effective sentence of 43 days' imprisonment, to be followed by a 12-month community corrections order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Ellis | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C. Pearson | Chris McLennan & Co |
HIS HONOUR:
Introduction
1Jason MacMurray, you have pleaded guilty to one charge of common law assault, one charge of aggravated burglary and one charge of intentionally damaging property.
2The maximum penalties for those offences are as follows:
(a) Charge 1, common law assault, five years' imprisonment;
(b) Charge 2, aggravated burglary, 25 years' imprisonment;
(c) Charge 3, intentionally damaging property, 10 years' imprisonment.
Circumstances of offending
3The circumstances of the offending were set out in the summary of prosecution opening which was Prosecution Exhibit 1. In somewhat abbreviated form, they are as follows.
4At the time of the offending you were 49 years old and resided at a unit in St Kilda. The premises were a multi-level apartment complex.
5The victim in this matter, Eugene Gubantsev, was 41 years old and resided in the same block of apartments.
6On Sunday, 9 August 2020, you asked to borrow money from the victim. He told you that you may be able to borrow money the following Tuesday once he had received a payment from his superannuation.
7
On Tuesday, 11 August 2020 at approximately midday, Bogdan Kekich, also a resident of this same apartment block, knocked on Mr Gubantsev’s door.
Mr Gubantsev answered the door and had a conversation with Mr Kekich. This conversation occurred with the victim standing in his unit at the doorway, with
Mr Kekich standing on the first floor landing.
8During this conversation you came out from your unit on to the first floor landing. You approached Mr Gubantsev who was still standing in his doorway. You asked Mr Gubantsev, 'Where is my money?' He said to you, 'I don’t owe you any money, I just said I could borrow you some'. You kept asking him, 'Where’s my money?' Mr Gubantsev told you he did not owe you anything.
9You then punched Mr Gubantsev to the face with a closed fist to the right side of his jaw. This is the subject of Charge 1, common law assault. Your punch caused him pain and made him stumble backward into his unit.
10You followed him and entered his unit. Mr Gubantsev kept walking back and said, 'Come on man, chill, just go away'. You said to him angrily, 'You’re a liar' and 'I’m going to rape your sister'. Your entry into his unit in these circumstances is the subject of Charge 2, aggravated burglary.
11The aggravated burglary charge is put on the basis that at the time you entered the unit, you were a trespasser who knew the victim was present, and intended to steal money from him in that you knew you had no entitlement to such money despite your statements to the contrary.
12Once inside the unit, you pushed the victim into the bedroom. You were screaming at him and calling him a 'liar'. The victim pleaded with you to calm down and leave.
13In the living room of the unit you picked up a glass ashtray and threw it on to the glass circular coffee table causing the glass to smash. You then left the premises. It was this damage to the table that is the subject of Charge 3, intentionally damaging property.
14As a result of the incident the victim suffered minor bruising to the right side of his jaw.
15The victim’s sister attended her brother’s unit later in the afternoon. He disclosed the offending to her after she observed the damage to the table. She reported the matter to police who attended later that evening.
16You were arrested and interviewed. You initially told the police that the victim owed you $100 for an outstanding drug debt. You said that you had knocked on the victim’s door and were then invited inside. You claimed to have had a discussion with the victim about the money whilst inside the unit. You admitted becoming angry once inside the unit and smashing a coffee cup into the glass coffee table which then smashed. You also admitted flinging your right hand backwards and slapping the victim in the face.
17Later in the interview, you admitted striking the victim with a right closed fist, and following the victim into his unit. You also made admissions to smashing the coffee table.
18No victim impact statement was tendered on the plea.
Objective Gravity of Offending
19Your assault upon the victim was unprovoked. For the purpose of this sentence I do not accept that you had a legitimate claim to money from the victim but regardless that could not justify the fact that you punched a person who was posing you no threat.
20Charge 1, common assault, relates to this single punch. No substantial injury was caused.
21Aggravated burglary is by its nature a serious offence, as is evident from its maximum penalty of 25 years' imprisonment. However, the gravity of an individual example of the offence can vary widely depending on its circumstances.
22The intent alleged at the time of entry for this matter was for the commission of a relatively minor theft.
23The entry to the premises has occurred spontaneously following the punch that was the subject of Charge 1. The victim stumbled back through the open door of his premises from the landing and you followed him. There was almost no premeditation to the entry, nor was the entry achieved by any especially aggravating means.
24The victim and you were well known to each other. You were residents in the same apartment building, and the trespass aspect to the offence comes from your uninvited entry to his unit following the punch.
25The offending was not aggravated by your possession of a weapon. You did not commit the offence with any person. The victim, who was almost a decade younger than you, was not a person of any particular vulnerability.
26In all the circumstances, I consider this to be a lower end example of an inherently serious offence.
27Your actions in smashing the table, which is the subject of Charge 3, followed very shortly from the punch the subject of Charge 1 and the entry to the premises that is the subject of Charge 2. Your actions in throwing the ashtray on to the table were driven by anger and committed without premeditation. Whilst there is no material before the court as to the exact value of the table, it can be presumed to be relatively modest.
Personal Circumstances
28By way of personal circumstances you are now 50 years old.
29You were born in Falkirk, Scotland and emigrated to Australia as a young child.
30Your parents are now both in their mid-80s and reside in St Kilda. You also have an older brother. You are close to your mother and see her weekly. You are not as close to your father but remain in contact and have some minimal contact with your brother. Your relationship with him is complicated in that you say he introduced you to heroin and that he has been seriously violent to you on occasions.
31You reached Year 10 level at Wheeler’s Hill High School. After leaving school you commenced a painting and decorating apprenticeship. You have worked in various labouring positions. Most recently you have worked in a business with a friend installing synthetic tennis courts.
32You have a 15-year-old daughter. Tragically, her mother died in 2015. You have full-time custody of your daughter. You now reside with her in Bentleigh. Your daughter has been diagnosed with autism spectrum disorder. She is in Year 9 and progressing well with her education.
33You have a very substantial criminal history. Of most significance for the current proceedings is that you have 17 prior matters for either burglary or attempted burglary. Upon closer analysis, however, the vast bulk of your criminal history, and certainly the most serious examples of your previous offending, occurred last century.
34You were imprisoned by this court in its appeal jurisdiction for three months in 2008 for a variety of offences including burglary and theft. In the last 13 years, however, you have not been sentenced for anything that has resulted in more than a conviction and fine.
35I am instructed that your criminal history reflects the fact that you were a heroin addict for approximately 20 years.
Matters in Mitigation
36You were arraigned and pleaded guilty to the charges on the current indictment after a sentence indication hearing 11 August 2021. Your plea could not be said to be entered at the absolute earliest opportunity given that you ran a contested committal hearing. However, your plea is still of substantial utilitarian worth. You have spared the time and resources that would otherwise have been expended upon a trial. In circumstances where pandemic restrictions have placed substantial pressure on court listings, the value of your plea of guilty is significant.
37I am instructed that there has been no further difficulty between you and the victim. You have told the author of the pre-sentence report that ‘you can’t solve problems with your fists in 2021’. In combination with your plea of guilty and the admissions you made to police, this reflects a level of remorse for your actions, albeit some way short of complete contrition.
38It has been put on your behalf that the court should consider hardship to a family member, namely your daughter. To consider this type of hardship to another party there would have to be exceptional circumstances made out. While I fully accept that your daughter is in your full-time care and heavily reliant upon you, based on the evidence available in this case I do not consider that it reaches the standard of making out the exceptional circumstances required.
39However, I do consider your broader circumstances, including your care for your elderly mother and your responsibilities to your daughter to be of relevance as part of a general assessment of your prospects of rehabilitation and I have taken these matters into account.
40An ‘Extended Pre-sentence Assessment Outcome Report’ was prepared subsequent to your plea being entered. That report assessed you as being of ‘high risk of generalist re-offending’. The report’s author assessed you according to eight risk criteria and you were regarded to be ‘high’ on four of the eight and ‘very high’ in relation to another three.
41The suggestion in the pre-sentence report that you had relapsed into heroin use was a significant concern. You report that your return to heroin use occurred early in the COVID lockdown and that you are once again clean. You are currently on 50 mg of methadone per day. You clearly remain susceptible to a return to the drug use that has fuelled your past offending. You do, however, have insight into the consequences for your responsibilities as a parent if you do not remain abstinent.
42As I have mentioned, the vast bulk of your criminal history occurred upwards of a decade or more in the past. The offending represented on the indictment relates to a single incident and has thus far not been a precursor to a return to your recidivist past.
43You have responsibilities to your mother and your daughter that you have fulfilled admirably in recent times. So much is evident from the positive reports about your daughter’s progress at school. This is all consistent with your instructions that the birth of your daughter in 2005 was a ‘turnaround point’ in your life.
44It all circumstances, I consider that you have reasonable prospects of rehabilitation, and that these prospects can be further improved by structuring a sentence that addresses the risk factors identified in the pre-sentence report.
45I also have regard for the fact that you have served 43 days of imprisonment on remand, in circumstances impacted by pandemic restrictions. These 43 days in custody were somewhat more onerous than would otherwise have been the case.
46I have regard to the sentencing purposes of general deterrence, specific deterrence, denunciation and the protection of the community.
Submissions on Sentence
47Mr Pearson appeared on your behalf and submitted that a community corrections order was appropriate and available in all the circumstances of the case.
48Ms Ellis appeared on behalf of the Director. She conceded that this was a lower range example of the offence of aggravated burglary, and as such in all circumstances a combination sentence of imprisonment and a community corrections order was within the available range. Ms Ellis did not contend on behalf of the Director that such a sentence required any further imprisonment than that which had already been served as pre-sentence detention.
49You were assessed as to your suitability for a community corrections order and found suitable for such an order.
Sentence
50Jason MacMurray, I sentence you as follows.
51On Charge 1, common-law assault, you are convicted and sentenced to 43 days' imprisonment.
52On Charge 2, aggravated burglary, you are convicted and sentenced to 43 days' imprisonment followed by a 12 month community corrections order.
53On Charge 3, criminal damage, you are convicted and sentenced to 43 days' imprisonment.
54That makes for a total effective sentence of 43 days' imprisonment, to be followed by a 12-month community corrections order commencing this date.
55Before I ask if you consent to such an order being made, I have to tell you a little about the order.
56The following core conditions apply to all community correction orders:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
(b) You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order.
(c) You must report to the Community Correction Centre at Moorabbin within two clear days from today, you may report remotely via telephone.
(d) You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.
(e) You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
57There are a number of other conditions attached to this order, and they apply to you:
(a) You have to perform 100 hours of unpaid community work over a period of 12 months as directed by the Regional Manager (s48C). Fifty hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition (s48CA).
(b) You must be under the supervision of a Community Corrections Officer for a period of 12 months.
(c) You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s48E).
(d) You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager (s48D(3)(a)).
(e) You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager (s48D(3)(f)).
58I can only impose a community correction order if you agree to such an order being imposed.
59I advise you that if you contravene or breach that order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)).
60You can also be re-sentenced for the offences or the offence that is before me. One of the options available includes a term of imprisonment (s83A(s)).
61If you commit any further offences that might incur a term of imprisonment over the next 12 months, you could be back before the court and be re-sentenced on the charge that is before me.
62I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections Officer, as part of this order, a substantial fine can be imposed (s83A(e) and A(f)).
63Now you are aware of all of that, Mr MacMurray? I think you are on mute at the moment.
64OFFENDER: Yes, Your Honour.
65HIS HONOUR: Thank you, so you are aware of all that?
66OFFENDER: Yes, I am, Your Honour.
67HIS HONOUR: Do you consent to the community corrections order on the terms I have just outlined?
68OFFENDER: Yes, Your Honour.
69HIS HONOUR: Thank you. I declare pursuant to s18(4) of the Sentencing Act1991 that you have served 43 days of pre-sentence detention.
70I declare pursuant to s 6AAA of the Sentencing Act1991 that but for your plea of guilty I would have sentenced you to a total effective sentence of 18 months' imprisonment with a 12-month non-parole period.
71Any other orders required?
72COUNSEL: No, Your Honour.
73MR PEARSON: No, Your Honour, other than to say that Mr MacMurray, of course, has to sign that order, and as I would understand it, Your Honour, the structure that is in place is that the order will be emailed to him so that can he can sign it and send it back.
74HIS HONOUR: I think he can give verbal consent and that order will be sent to him and sent to you. I think that is the way we are doing things now, we do not need to go through the physical signing of it. He has now verbally consented to it and that is sufficient for the current purposes.
75MR PEARSON: If Your Honour pleases. Would Your Honour permit my instructor and I just to have a quick word with Mr MacMurray?
76HIS HONOUR: Certainly. I will leave the link open and I will leave the link, so I will adjourn the court now until 9.30 tomorrow. Thank you both very much.
77MS ELLIS: If Your Honour pleases.
78MR PEARSON: If Your Honour pleases. Thank you.
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