Director of Public Prosecutions v McMurray, Luke

[2012] VCC 1750

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BALLARAT

CRIMINAL DIVISION

Case No. AP-09-1590

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE McMURRAY

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Ballarat
DATE OF HEARING:	22 November 2012
DATE OF SENTENCE:	22 November 2012
CASE MAY BE CITED AS:	DPP v McMurray, Luke
MEDIUM NEUTRAL CITATION:	[2012] VCC 1750

REASONS FOR SENTENCE

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Catchwords: Criminal law – breach of Intensive Corrections Order (ICO) – breach by further offending and non-compliance – no exceptional circumstances – drug addiction – balance of ICO reinstated – sentenced to 299 days imprisonment

Cases:  R v. Steggall [2005] VSCA 278 – R v Ioannou [2007] VSCA 277 – R v Ienco [2008] VSCA 17

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms W. Duncan	Office of Public Prosecutions
For the Accused	Ms I. Bolger	Mr H. Locke (VLA – Ballarat)

HIS HONOUR:

1       There is a formal plea to the breach of the Intensive Corrections Order (“ICO”) in this matter. The breaches arising by way of further offending and non-compliance of the ICO.

2       The matter concerning Mr McMurray has considerable history, indeed I have been involved with it for some time.  It goes back to November 2009 when the original ICO was ordered by Judge Cohen, it is not to be forgotten as to the serious nature of these series of offences.

3       Despite that, Her Honour was on that date, inclined to give Mr McMurray a chance because of his problems, mainly the problem of drug addiction, and the difficulties that his background had disclosed.  Those same circumstances have been recognised by me on two occasions since that:  firstly on 8 February 2011 when I extended the order upon breach for non-attendance issues, then again on 28 June 2011 also for further breaches by way of non-attendance.

4       Both Judge Cohen and myself on those three occasions were hopeful that the scourge, which Mr McMurray is subject to and which we unfortunately hear far too often in this Court, could be removed from him and of course that can only be done by a lot of hard and tough work. 

5       It really is important to remember what these breach offences are, they are dealing in property suspected of being the proceeds of crime and dishonestly assisting.  So they are the milieu-type offences.  Unfortunately these offences took place less than a month after I had further extended leniency to him on 8 February 2011.

6       True it is, as Ms Bolger valiantly puts to me in trying to seek to overcome the exceptional circumstances issue in this case, that since that time he has certainly completed aspects of the ICO, in particular the reporting aspect and half of the work aspect.  That in the twenty months since that offending, there has been no further offending, at least to what this Court is aware of, and that the reports tendered today; one was the matter tendered earlier in the June hearing at the Magistrates' Court but it is to the same effect, that from the day of the offending in March 2011 I am told, Mr McMurray then admitted himself to Odyssey House and indeed stayed at Odyssey House until December 2011.  True it is that he appeared to do well while at Odyssey House, although I note that the report as of June indicated the need for him to stay within the confines and assistance of that organisation.

7       Unfortunately, associated with his lifestyle, he has also picked up problems insofar as Hepatitis C and the difficulties of the treatment associated with that, and the need for psychological assistance.  For some number of months when he was apparently not able to be apprehended on the warrant, he apparently had been working and living with his father.

8       The provision that is applicable as at the time is that as set out in the Sentencing Act 1991, as detailed in Act No.49 of 1991, and the particular provision that I have interpret in this case is the mandated determination of Parliament that if a person commits another offence punishable by imprisonment, then the balance of the Intensive Corrections Order must be imposed, unless in the opinion of the Court, such would be unjust because of any exceptional circumstances which have arisen.

9       Unfortunately, while acknowledging all of the matters put to me, I find that even with the best of goodwill I could not make a legal determination that such requirement has been satisfied.  Clearly Mr McMurray, at the time this ICO was imposed, extended and indeed now, has been subject to the scourge of drug addiction.  In the circumstances I find nothing that establish exceptional circumstances, see R v. Steggall [2005] VSCA 278, R v Ioannou [2007] VSCA 277, R v Ienco [2008] VSCA 17.

10      As I understand the period to be imposed of imprisonment which remains is two hundred and ninety days is It?

11      MR DUNCAN:  two hundred and ninety-nine Your Honour.

12      HIS HONOUR:  I will make that imposition and formally I have to, pursuant to s.3AC, although I do not need to cancel the order but I will commit the offender to prison for two hundred and ninety-nine days.  Unfortunately I think, though I look up now, it would appear the Valium has had some impact and I am not too certain how your client is travelling.  No, he is still with us, just.

13      Officer, what is going to happen?  Do you need some - - -

14      CORRECTIONS OFFICER:  I need to radio (indistinct) Your Honour.

15      HIS HONOUR:  Do you want us to wait while you do that?

16      CORRECTIONS OFFICER:  No that is fine Your Honour.

17      HIS HONOUR:  Are you sure?

18      MS BOLGER:  Your Honour perhaps if I could raise that there will be custody issues.

19      HIS HONOUR:  Absolutely.  I am not sure what is the best way to do it.  Officer, you are aware that there are obvious issues, immediate issues.  He may well have had far too much Valium I do not know.  So that matter needs to be taken into account.  As best I can do I will add the materials that we have.  Perhaps if I detail them will I, as we understand it.  I will put these in the sentencing remarks.

20      There is a Hep C issue and the need for treatment.  There is a continuing drug problem and there has been prior involvement of Odyssey House.  There is probably need for psychological assistance.  Ms O'Bree is there anything else that I should put in to assist the Department?

21      MS O'BREE:  I do not believe so, no Your Honour.  I think it is all covered.

22      HIS HONOUR:  In those matters.

23      MS BOLGER:  He probably should be seen by a doctor just because he was meant to start again on Interferon Your Honour I believe, so he will need to be assessed.

24      HIS HONOUR:  There is an issue as to the need for a doctor to see him for the diagnosis of Interferon.

25      MS BOLGER:  Yes he was meant to start on it again with a lower dose, so it may be necessary for them to - - -

26      HIS HONOUR:  We will add all those matters to the sentencing remarks and I can only hope Mr McMurray now that you are going to gaol that you can sort yourself out after you get out, all right.  Thank you.  Thank you Ms O'Bree.

27      MS O'BREE:  Thank you Your Honour.

28      HIS HONOUR:  You are happy if we stand down?

29      MS O'BREE:  Yes thank you Your Honour.

30      MR DUNCAN:  Yes thank Your Honour.

31      MS O'BREE:  Thank you Ms Duncan.

32      HIS HONOUR:  Thank you.

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