Director of Public Prosecutions v Murphy

[2019] VCC 619

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02113
CR 19-00699

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARY ADRIAN MURPHY

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2019
DATE OF SENTENCE:	3 May 2019
CASE MAY BE CITED AS:	DPP v Murphy
MEDIUM NEUTRAL CITATION:	[2019] VCC 619

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW SENTENCE

Catchwords:  Aggravated home invasion – Theft – Co-offender armed with firearm – Found guilty following trial – Mandatory sentence – Term of imprisonment. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pathmaraj	Office of Public Prosecutions
For the Accused	Mr A. Patton	Haines and Polites

HIS HONOUR:

1Gary Murphy, after a nine day trial you were convicted by a jury of aggravated home invasion and theft. At your plea hearing on 10 April 2019 you also pleaded guilty to a charge of theft, on Indictment C1711134.4.

2The maximum penalty for aggravated home invasion is 25 years' imprisonment. The maximum penalty for theft is 10 years.

3

The facts of the home invasion, the subject of the trial, are that on

21 January 2017 at around 3:00 am you attended at residential premises in

St Albans in company with three other males, with the intention of forcing your way into the home as trespassers to steal items of value. It is likely your intention was to steal cash and possibly drugs also, although this much is unclear.

4You and your co-offenders arrived in two vehicles. You were armed with a baseball bat. One of your co-offenders was armed with a firearm which was probably unloaded. This is likely to be Mr Gration although his matter has settled on an agreed statement of facts. Another co-offender, Mr Goodfellow, who stood trial with you and was also convicted, was unarmed. Mr Goodfellow’s plea hearing has been adjourned to June this year. The fourth offender has not been identified.

5The occupants were not known to you or to your co-offenders. Prior to entry one of your number shouted ‘Open up it’s the police.’ One of the occupants, NL, had observed on CCTV footage that Gration had a firearm and was wearing gloves. Another occupant, Mr Srokowski, fled the premises from a rear exit.

6The door was kicked in and all four of you entered.

7

Whilst inside the premises items of value were collected by your group. At one point a demand was made of NL for cash. One offender, probably you,

Mr Murphy, intervened and told her not to worry and that they would not hurt her because she was a woman and they did not expect her to be at the house.

8After collecting items of value and returning to the vehicles you all fled the scene. Police arrived at that point. One of the vehicles containing a number of stolen items crashed into a tree during the escape and the occupants fled on foot. Items located in the car were central to the circumstantial case against you and your co-accused, Goodfellow.

9Another aspect of the prosecution case against you at trial was the footage of you at an earlier point in time within the same 24 hour period at a 7Eleven store. You were wearing the same clothing as you were during the home invasion and this fact was significant in the case against you. On the occasion that you were filmed at the 7Eleven store you stole cigarettes in a brazen theft after the items were placed on the counter. It is this theft that is the subject of Indictment C1711134.4.

10You were arrested on 26 January 2017. A baseball bat, quite possibly the one you were carrying at the time of the home invasion, was located in the boot of your vehicle.

11You made a ‘no comment’ interview.

Victim Impact

12The principal victim, NL, made a victim impact statement. As one would expect, having gone through such a terrifying experience, it has had a lasting effect. She has severe anxiety, she suffers nightmares, she does not feel safe in her own home, understandably, and her behaviour and enjoyment of life has been dented. The trauma has affected not only her but those dear to her.

13None of these impacts are surprising given the nature of the crime and the circumstances of this example of it. Armed men bursting into a home at night with malevolent intent is one of the most frightening experiences that one contemplates as a member of our community. NL was defenceless and terrified. The trauma she has experienced as a result of your crime is significant.

Objective Circumstances of Offending

14

The offence of aggravated home invasion carries a maximum penalty of

25 years which reflects the objective seriousness of the offence. The salient aspects of the offending in your case include:

·the fact that you were armed with a baseball bat and you were aware a co-offender was armed with a firearm;

·you were in company with three other men, at least two of whom could be described as being of large stature;

·the offending took place in the dead of night;

·forced entry was accompanied by raised voices;

·there was an attempt at partial disguise by you using your hoodie;

·there were persons present and you knew that, or were at least reckless as to their presence, prior to entry; and

·the facts demonstrate a level of planning.

15The point was made at your plea by your counsel, Mr Patton, that the majority of these matters reflect the bare elements of the offence and are not aggravating features, although he conceded the presence of the firearm does not fall into this category. I accept that submission, however, the number of intruders, the nature of the weapons, and the time and mode of entry, are all features that give this offence its character. It is a serious example of the crime of aggravated home invasion with intent to steal. It was not of a particularly long duration however, no-one was physically harmed, and the value of items stolen was not significant.

Personal Circumstances

16I was told that you are now 31 years of age and were 29 at the time of the offending.  You are one of three siblings.  Your parents separated when you were young and you were raised by your mother and stepfather until your stepfather, unfortunately, passed away three years ago.

17You met your biological father around seven years ago and discovered that you have five half siblings.  You have not had ongoing contact with your biological father.  However, you have maintained contact with half siblings through social media.

18It was set out on your plea that you have spent a significant period of time on remand from January 2017 until now.  You have maintained contact with your mother and brothers whilst in custody.

19You childhood and early adolescence was largely unremarkable.  You had a positive home environment.  You completed schooling to Year 10 in 2004 at Sandringham College, after which you started a number of apprenticeships, eventually settling on commercial refrigeration.  By 2016 you had completed three years of a four year study toward a Certificate 3 in engineering at RMIT.  You had intended taking 2017 off from study to concentrate on work.  At the time of your arrest in January 2017 you were unemployed.  I was told that you had been diagnosed as suffering ADHD as a child and were prescribed dexamphetamine, and your counsel alluded to a well-known, if anecdotal, connection between persons prescribed Dexamphetamine at a young age and engaging in ice use in later teenage years and early adulthood.  I accepted this.

20I was told you commenced using methylamphetamine and GHB approximately six years ago and you have been a regular use of both drugs, although you have had significant periods of abstinence over that period.

21You were remanded on 26 January 2017 on these matters.  However, there is a period from early January to 19 January, a 14 day period I was told of, for which you do not have pre-sentence detention available.  However, I was urged by your counsel to consider it and take it into account in what is often referred to as a Renzella time, and I do so.  The period you spent as pre-sentence detention for this matter is 26 January 2017 to 18 October 2017 and then again from 5 March 2018 to the present time.  That Renzella time period was an intervening period in January; 5 January 2018 to 19 January 2018.

Prior Convictions

22You have a criminal history with relevant prior convictions. You have numerous convictions for dishonesty matters in 2016 and earlier in 2010. You were sentenced to five months' imprisonment in 2016. In 2014 you received a three months' sentence of imprisonment in combination with a CCO for recklessly causing injury and a number of other offences.

23None of your prior matters fall into the category of seriousness of the matter before me. You have never before committed an offence carrying a maximum penalty of 25 years. Given your history you would have been well aware of the serious nature of your offending and the consequences of being found guilty of your conduct.

Matters in Mitigation and Prospects of Rehabilitation

24I have taken into account the fact that in respect of the charge of theft, the subject of Indictment C1711134.4, you pleaded guilty to that charge and accordingly the sentence imposed on that charge is discounted commensurate with that plea of guilty.

25

It was also submitted to me on your plea that there were some matters pertaining to the offending that mitigated in some way the objective circumstances of the offending.  Principally that the offenders, including you, did not anticipate the presence of NL in the house at the time of entry.  I am prepared to accept that given the utterances made by you, it would seem, during the course of the home invasion.  Further, it was submitted to me that Male two's actions, who on this plea and sentence I accept was likely you,

when the firearm was pointed at NL, operated to mitigate the aggravation that would otherwise arise from such conduct.  That utterance is a matter I weigh in your favour in my assessment of the overall criminality.

26Despite my observations as to your prior convictions and history and the objective seriousness of the offending, I accept that you have some prospects of rehabilitation given your background in work and training.

Mandatory Minimum Non-Parole Period

27A mandatory minimum non-parole period of three years' imprisonment for adult offenders applies to this offence. The mandatory minimum applies unless ‘special reasons’ exist in accordance with s.10A Sentencing Act 1991.

28Your Counsel, Mr Patton, submitted that the sentencing factors to which I must have regard did not require me to exceed the mandatory minimum sentence in your case. Mr Patton did not seek to advance ‘special reasons’, which is not surprising in all the circumstances of your case. Indeed, my assessment of your criminality, the range for offending of this type, and the place where your  offending sits in that range, together with matters personal to you, have, despite your Counsel’s submission, taken me beyond the mandatory minimum.

Sentence

29Those who commit the offence of aggravated home invasion must expect condign punishment for their crime. No doubt you would have expected severe punishment if apprehended and convicted, at the time of the commission of your crime. If you did not at the time, no doubt you have been made aware in the meantime, and from today it will be very clear to you what awaits you if you commit serious offences into the future. General deterrence and specific deterrence are important components of the sentence I will impose. So too is the community’s denunciation of the crimes you have committed, and the protection of the community. I have also borne in mind your background and prospects of rehabilitation in determining the appropriate sentence.

30And stand up now, please, Mr Murphy.

31On Charge 1, aggravated home invasion, you are sentenced to six years' imprisonment.  This will be the base sentence.

32On Charge 2, theft, you are sentenced to six months' imprisonment.

33On Charge 1 on Indictment C1711134.4, being theft, you are sentenced to four months' imprisonment.

34I direct that three months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1, being aggravated home invasion.

35I direct that one month of the sentence imposed on Charge 1 on Indictment C1711134.4 be served cumulatively on Charge 1, aggravated home invasion.

36That makes a total effective sentence of six years and four months imprisonment. I set a non-parole period of four years.

37

I declare, pursuant to s.18 if the Sentencing Act 1991 that you have served

579 days as pre-sentence detention.

38In respect of the charge of theft, the subject of Indictment C1711134.4, I declare, pursuant to s.6AAA that but for your plea I would have imposed a sentence of five months' imprisonment.

39I make the disposal and forfeiture orders sought.

40Are there any other orders I need to make?

41COUNSEL:  No, Your Honour.

42HIS HONOUR:  Thank you.  Mr Murphy, he can be taken down now, please.

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