Director of Public Prosecutions v Murphy

[2019] VCC 413

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 19-00348

DIRECTOR OF PUBLIC PROSECUTIONS

v

EBONY MURPHY

---

JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Bendigo
DATE OF HEARING:	27 March 2019
DATE OF SENTENCE:	29 March 2019
CASE MAY BE CITED AS:	DPP v Murphy
MEDIUM NEUTRAL CITATION:	[2019] VCC 413

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Cordy	Office of Public Prosecutions
For the Accused	Ms V Drago	Balmer & Associates

HIS HONOUR: 

Introduction

1Ebony Murphy, you have pleaded guilty to one charge of carjacking, maximum penalty 15 years' imprisonment, one charge of theft of petrol, maximum penalty ten years' imprisonment, and one charge of trafficking in a drug of dependence namely GBL, maximum penalty 15 years' imprisonment.

2You have also pleaded guilty to a summary charge of committing an indictable offence whilst on bail, maximum penalty three months' imprisonment and or 30 penalty units.

Circumstances of offending

3The circumstances of the offending were set out in the prosecution opening which was a read in open court on the plea.  You committed these offences with male co-accused Coutts and McMahon.

4You had known both of them for a number of years. Coutts was aged 27, McMahon was aged 24 and you were aged 25.

5In the early hours of 25 October last year, you and McMahon were at an associate’s house and McMahon was placing rock salt into a Ziploc bag to pass off as methylamphetamine.  You observed this.  Coutts was elsewhere at the house of a female friend of yours, Nicole Page.  Facebook messages were exchanged between McMahon and Coutts that they needed a car badly.  These messages went nowhere and then Coutts contacted one of the victims and sought a lift from White Hills to Eaglehawk.  

6Coutts and Rayner were known to one another.  Rayner’s partner Channa Bird, who owned the car, then drove with Rayner to White Hills.  Coutts was advised that they had arrived.  Coutts then met them at that place and the three then drove to Eaglehawk.  During the drive Coutts showed Rayner a tomahawk he was carrying.  When they arrived at Eaglehawk Coutts got out of the vehicle and walked to where you and McMahon were waiting and spoke for approximately 30 seconds.  Both you and McMahon were not known to either Bird or Rayner.

7The three of you returned to the car and Coutts retrieved the tomahawk.  You observed this.  He removed the protective cover from the blade and McMahon threw the bag of rock salt into the car and reached into the driver’s window where Bird remained seated.  He pulled the keys out of the car.  The keys had a lanyard on them.  Bird resisted McMahon's attempt to grab the keys.  Coutts then approached the passenger side where Rayner was seating.  You and McMahon were also there.  You turned away.  Coutts hit Rayner with his fist while holding the tomahawk, splitting his lip.  He then got in the car.  McMahon also entered the car and the lanyard with the keys was thrown to him and McMahon called out for you to join them.  You did so and Coutts then drove off.  These are the events that constitute carjacking.

8The vehicle was low on petrol and none of you had any money.  You headed for a service station where the vehicle was filled with petrol and driven off without payment.  On your account you were crouched down in the back seat when this occurred.   This is Count 2, theft of the petrol.

9The car was then driven to an address in Eaglehawk where McMahon exited. You asked to be taken to Coutts’ parents' house at Epsom to have a shower. At that point Coutts placed some clothing into a pack and then placed that bag in the stolen car.  You then returned to another address of Nicole Page and parked the car nearby.  The bags were carried from the vehicle to that address. You then took the car to the vicinity of the East Bendigo Airport with Coutts driving and left it there.  

10The car was observed and later on police executed a search warrant at Coutts’ house.  He was not located but you were arrested and interviewed and your phone was seized.  The tomahawk was located.  You were interviewed and acknowledged your involvement and identified McMahon.  McMahon was arrested later and Coutts was also arrested later.  Your phone was seized and messages on your phone and that of McMahon indicated that the two of you were attempting to sell drugs and this gave rise to Count 3 against you, trafficking drugs, namely GBL.

Seriousness of the offences

11The essence of the offence of carjacking is the theft of a motor vehicle with the use of force or the threat of force.  Here both the owner of the car Ms Bird and the passenger Mr Rayner were subjected to force.  Mr Rayner suffered a nasty injury.

12Your involvement in the matter, as accepted by the Crown, was limited.  You were charged and have pleaded guilty on the basis of a joint criminal enterprise. That agreement could have been entered into before the vehicle arrived at the location or have been made shortly before the car was forcibly taken by your co-offenders.  You then entered the car at the direction of your co-offender McMahon.

13You participated in the theft, with violence, of the vehicle from both the driver and owner, the driver Bird and her passenger Rayner.

14The overall circumstances show in the Court's view little premeditation on your part, and the matter is best perhaps seen as one where a dependent or vulnerable female goes along with criminality by dominant males.

15All that said, the offending was however serious, particularly having regard to the significant victim impact statement filed by Ms Bird.

16I have taken the victim impact statement into account.  She indicates that as a result of your offending she not only lost the use of her car, which her father had bought her and which she has now been unable to repair, she has also suffered significant loss of esteem and mental health problems.

17The offence forced her into homelessness, and into social isolation and she also feels in fear of her life.  In addition, as a consequence she has lost a number of significant personal possessions that your co-offender Coutts callously threw away. The victim impact statement shows that your thoughtless involvement in this conduct has had a major impact on an innocent third party.

18Turning to the other offences to which you have pleaded guilty, in relation to the theft of the petrol, this is a prevalent offence, and your role was merely being in the vehicle when the three of you agreed that petrol would be stolen from the service station.

19You pleaded guilty to trafficking in a drug of dependence and the prosecution accepted that this was on the lower end of the scale.  Your communications with McMahon indicate that you were familiar with the sale price of GBL in Melbourne, and that you had received the sum of $200 for the drug and McMahon indicates that he would be in a position to sell what he had for at least $1000.  This offending is on the lower end of the scale.

20Your plea to the summary charge of committing an indictable offence on bail arises out of the fact that you were on bail at the time of this offending for other offences including driving offences, theft of a vehicle, dishonestly undertaking the retention of stolen goods as well as a summons for breach of a community corrections order that had been imposed on the 27 November 2017.

21I turn now to your prior convictions.  You are now aged 25 and have admitted prior convictions commencing in November 2013.  You have two without conviction dispositions for respectively recklessly causing injury in November 2013 and unlawful assault in February 2014.  You also have a number of driving convictions in 2015 and 2016.  Significantly, without conviction on 18 November 2016 you were placed on a CCO for 12 months on charges of possession of methylamphetamine, possession of a drug of dependence, possessing a controlled weapon, and you were also convicted of two charges of unlicensed driving

22On 20 June 2017 you were convicted and fined $500 for possessing methylamphetamine.  On 27 November 2017 you were brought up for breach of the community corrections order. The breach was found proven and the order was extended until 26 November 2018. Thus when you committed these offences you were on a community corrections order.  As I have indicated, you were also on bail.

23In your criminal record it is significant that you have been dealt with leniently for drug offences when you were placed on the community corrections order without conviction.

24Your offending here, in terms of your antecedents, which now include theft of a motor vehicle and possession of a schedule 4 poison, as well as drug possession offences, shows that save for the offending in 2013 and 2014 for assault-type offences, your record for violence and dishonesty offending is thin.  

25On 9 November 2018, after you were remanded in custody for these offences from 26 October 2018 when you were arrested, you were sentenced to an aggregate sentence of 30 days' imprisonment for unlicensed driving and other traffic offences, and theft of a motor vehicle.  You were also sentenced to 14 days' imprisonment for contravention of the community corrections order that had been imposed on 27 November 2017 and seven days' imprisonment for the underlying offences.

26Those sentences were cumulative, making a total effective sentence of 51 days' imprisonment.  You remained in custody until you successfully obtained bail on the committal mention of this matter on 20 February 2018.  Thus you were in custody for a total of 117 days.  There are 66 days presentence detention to be declared in relation to this offending.

Plea Submissions

27Before turning to your personal circumstances, an important matter on the plea is that you have indicated a preparedness to give evidence against your co-offenders.

28On 15 February this year while still in custody you gave a four page statement outlining the full circumstances of the lead up to the carjacking, and subsequent actions of those involved.  You have given evidence before me that the statement is true and correct and that you are prepared to give evidence against your two co-offenders if required.  The prosecution accepts that the statement provides very significant evidence in the prosecution of your two co-offenders.

29The Court of Appeal has emphasised in a number of cases the importance of sentencing courts effectively rewarding those offenders who are prepared to assist in the prosecution of other offenders.  It is in the community interest that all offenders be brought to justice and those who are prepared to facilitate this must in the community interest be rewarded with substantial sentencing reductions. The reduction also rewards the insight associated with your cooperation with the authorities, and also the risk that those who are prepared to give evidence against co-offenders face when that becomes known.

30In this case I do regard it as appropriate to give a substantial reduction in sentence due to your willingness to cooperate with the authorities in the prosecution of the two co-offenders whose cases are still in the Magistrates Court in the committal stream.

31As a further matter I do regard the statement that you have given and the willingness to give evidence as evidencing your remorse and insight into your offending.  In your record of interview you effectively recognised the error of your ways in participating in this offending and you have taken it further now by your undertaking to give evidence.  There was also evidence of remorse in the community corrections assessment.

32Turning to other sentencing matters, your plea of guilty must also be recognised.  It has facilitated the course of justice and evidences your acceptance of responsibility for your conduct.  It has saved the need for a committal proceeding and the matter has been dealt with expeditiously by your legal practitioners, so I regard your plea and your willingness to give evidence as evidence of remorse.  Those matters are all to be taken into account in your favour.

Personal circumstances

33Turning to your personal circumstances which were set out in the written submission of your counsel.  You are now aged 25, you had a difficult and dysfunctional upbringing.  You were raised in the Bendigo area where until the age of six you resided with your mother.  Your father was only sporadically involved with your life.  Both your parents suffered from drug addiction.  You and your younger sister were taken from your mother and raised by your grandmother after your mother lost custody.  Your mother passed away in July 2017 as a result of drug addiction and this has had an impact on your mental health.  You have had little contact your with your father due to his incarceration as a result of his drug use.

34You were introduced to cannabis at age 14 and have a limited education and work history, having left school half way through year nine.  You have not worked for the last three years although you had previously had work in hospitality and cleaning.

35Unsurprisingly, given your dysfunctional upbringing, you fell pregnant with your first child at age 15 and you are the mother of three children respectively aged eight, five and three.  The oldest child resides with your paternal grandmother while there is a shared parenting arrangement with the father of the two younger children.  You have been a polydrug user since around 14 and your drug use increased significantly following your mother’s passing and is no doubt a form of medication for your mental health difficulties.

36You have had only limited treatment for your drug problems and it is significant that shortly prior to this offending you had in fact been involved in a short detoxification program.

Prospects of rehabilitation

37A significant matter to consider are your prospects of rehabilitation.  Given your prior drug history, and notwithstanding your willingness to undertake rehabilitation, at their highest I regard them as just reasonable.

38Perhaps significantly, at the age of 25 you have had your first term of imprisonment of 117 days which would have been a very salutary experience for you and thus allowed you to reflect on your drug addiction and to engage in detoxification.

39A significant matter in encouraging your efforts at rehabilitation is your expressed desire to recover the custody of your two youngest children.  This is a protective factor that I do take into account.

40After obtaining bail on 20 February you voluntarily admitted yourself to the Bridge Program in the Bendigo area.  On the plea an experienced case manager from the program gave evidence in support of your progress.  He indicates that you have made good progress in the five weeks that you have been with the program and you are due to exit next week.  In addition, while on the program you have engaged with a psychologist and upon your exit you will move to a therapeutic day program which is a ten-week program conducted by that organisation involving attendance for three days a week and also involving drug and alcohol counselling.

41The case manager was relatively optimistic about your prospects and he will continue to remain in close contact with you.  There is no time limit on the continuing involvement of counselling from the Bridge program.  In addition to that he has been engaged with you in looking at options to further your currently inadequate education.

42In sentencing you I have taken into account that during your period of incarceration you did undertake a number of courses for which I commend you.

Sentencing Submissions

43In a comprehensive submission your counsel submitted that a disposition that involved a term of imprisonment no greater than the time served by way of presentence detention, followed by a Community Corrections Order, would be an appropriate disposition. The learned Crown prosecutor accepted that a combination sentence would be within range but maintained that it would be a matter for the Court as to whether there should be any further term of imprisonment.

44Having regard to the actions that you have taken both on remand, your participation in the Bridge program to date, and also having regard to your prior convictions, and the fact that you have served only one term of imprisonment at your age, I do not see it in the community interest to return you to prison.  This would impede your current efforts at rehabilitation.  I have also taken into account in sentencing you the period of 35 days-odd that you have been in this residential facility which, in accordance with authority, is to be taken into account in a general way as a term of imprisonment.

45I have had you assessed for a Community Corrections Order.  The assessor regards you as having a high risk of reoffending but you were found to be suitable.  The assessment has recommended a number of conditions which will protect the community under the order, including supervision, treatment and rehabilitation including a referral to ACSO, the drug rehabilitation program, offender behaviour programs, mental health screening and non-association.  I also propose that you be subject to judicial supervision.

46In reaching a decision that no further imprisonment ought be imposed at this stage, I have taken into account issues of totality, on the basis that whilst only 66 days of imprisonment is to be treated as presentence detention, had the matter been dealt with on 8 November 2018 along with the other matters that you were then facing, it is likely that there would have been substantial concurrency ordered.

47A matter raised by the prosecution is whether you should be the subject of a licence cancellation and a finding that drug or alcohol use contributed to the offending.  As you have been convicted of theft of a motor vehicle, licence cancellation is mandatory.  I note that you admitted that you were drunk in the record of interview.  The finding, however, that the use of alcohol or drugs contributed to the offending is an adverse finding which is required, as I understand the authorities, to be made beyond reasonable doubt.  Whilst as indicated by the learned Crown prosecutor such a finding would be open, at its highest your use of alcohol would result in disinhibition, but as I read the legislation, it is designed to target those who commit driving-type offences under the influence such as culpable driving, dangerous driving, et cetera, whereas here I have found that you were effectively a passenger in this action in the theft of the vehicle.

48So whilst there may have been some disinhibition, I am unable to reach a conclusion that your use of alcohol contributed to the offending.  However, as indicated by the learned Crown prosecutor, licence cancellation is mandatory and I propose to order that all licences you hold be cancelled and to disqualify you for a period of nine months from driving from the date that you were arrested, which was 26 October 2018. In setting the period of disqualification I have mitigated it in order to facilitate your rehabilitation. 

49In sentencing you, the basic purposes for which a court must impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

50Here, I am satisfied that the competing considerations of punishment, general deterrence, denunciation, your personal circumstances, and the interest in the community in your rehabilitation from drug use are best balanced by a sentence that focuses on your rehabilitation but also records the fact that you are going to cooperate with the authorities, and you have served 66 days in prison.

51The sentence I propose to impose will be a sentence of imprisonment and an 18-month community corrections order.  I will hand down the proposed order and then when the order has been perused by the learned crown prosecutor and your counsel and it has been explained by your counsel and has been signed by you, I will reconvene and impose sentence.

52Anything I have not addressed at this point, Mr Cordy, save the 6AAA and the individual sentences?

53MR CORDY:  No, You’re Honour.

54HIS HONOUR:  All right.  I will hand down the proposed order which, as I have said, it is proposed that the order be supervision for 18 months, rehabilitation, including testing for drug abuse and dependency, mental health assessment as required, continue psychological counselling as directed, participate in offender programs, non-association with Coutts and McMahon for 18 months, and to reappear for judicial monitoring on 1 August this year where I will ascertain your progress.

55All right, I will just stand down momentarily.

56HIS HONOUR:  Would you please stand.  For the reasons that I have just set out, I have decided that I will not impose a further term of imprisonment for you to serve.  The sentence of the court on Charge 1 of carjacking is a sentence of 66 days' imprisonment and an 18-month community corrections order and I declare that you have served 66 days.

57On Charge 2 of theft of the petrol you are sentenced to seven days' imprisonment.  On Charge 3 of drug trafficking you are sentenced to 14 days' imprisonment.  On the summary offence of commit an indictable offence on bail you are sentenced to 14 days' imprisonment.  All sentences are concurrent.

58As a consequence of the conviction on Charge 1 all licences you hold are cancelled and you are disqualified from driving for a period of nine months from 26 October last year.  I declare that had you not pleaded guilty I would have imposed a total effective sentence of 30 months' imprisonment with a non-parole period of 20 months.

59For the next 18 months you are under a Community Corrections Order which means that you are required to attend at the Bendigo Community Corrections Office within two clear working days.  The mandatory terms, as no doubt your counsel will have explained to you, is that you have to be under their supervision for the next 18 months, which means you have to tell them if you change your address, if you change your mobile phone, and receive visits if they want to visit you. 

60You have also got to undertake any treatment and assessment that they require, which will include drug screens and mental health assessment and treatment if they direct it, and you are to continue with your psychological counselling.  If you decide that you want to change psychologists that is fine, but you have to tell the manager.  In addition to that, they might send you to offender treatment and they referred in the assessment report that you are to go to ACSO, which is an alcohol and drug program.

61There is a non-association condition, with Coutts and McMahon for a period of 18 months, and you have got the Bridge Program so they are there to help you for the next ten weeks or so in that program and then you are to liaise with the Community Corrections people to get you off the drugs.

62Now in addition to all that, I am supervising you as well, so you are going to come back to me on 1 August and you can come here, I will be on the video link in Melbourne, and I will want to see how you are going.  But not only that, if the Community Corrections authorities indicate that you are falling off the wagon then they will bring you back and they will put you in here and I will be on the video from Melbourne and I will see what is going on.

63If you read the papers, which you probably do not, you can see and I understand that recovery from drug addiction is a rocky road. We saw the example of that in the paper yesterday of Harriet Wran falling off the wagon again.  I do not want you to fall off the wagon but I am giving you a chance not to fall off the wagon, and part of that is you have to do your bit by being under the supervision and keeping in touch with the people from Bridge, they obviously think you are worth a chance, and then you do your bit for the community by giving evidence if necessary against Coutts and McMahon.  If you do not turn up and do that you will be brought down to Melbourne in front of the Supreme Court, and I can assure you they will probably double your sentence, it is a matter for them, but that is what is hanging over your head.  Do you understand all that?

64OFFENDER:  Yes, Your Honour.

65HIS HONOUR:  I am going to see you again, you are under supervision for 18 months and I will see you on 1 August and I will get a report.  You do not have to get a lawyer  to turn up, you just turn up here and we will get the video link and I will have a report from the Office of Corrections as to how you are going under the community corrections order and hopefully a 25-year old like you, you have three children, it is time for you to get a job, which means you have to get education, which means for the next two years you have probably got to invest in going to school, get yourself a VCE.  You have to get into education and then you can be a productive member of the society rather than hanging around with people like Coutts and McMahon.

66Anything else, Mr Cordy?

67MR CORDY:  No, Your Honour.

68HIS HONOUR:  Thank you, Mr Cordy, and Ms Drago for your assistance and I will stand down temporarily.

---