Director of Public Prosecutions v Murphy
[2017] VCC 1274
•7 September 2017
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-00769
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TERRANCE GENE MURPHY |
---
| JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 7 September 2017 |
| CASE MAY BE CITED AS: | DPP v MURPHY |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1274 |
REASONS FOR SENTENCE
---Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms O. Go. | |
| For the Accused | Mr M Sturges |
HIS HONOUR:
1Terrance Gene Murphy, you are to be sentenced for one charge of using a carriage service to procure a person under 16 for sexual activity. That is an offence under s.474.26(1) of the Commonwealth Criminal Code. The maximum sentence is 15 years' imprisonment.
2You pleaded guilty to this offence on
31 August 2017. When interviewed by police on 8 December 2016, you made some admissions but falsely denied important aspects of the offending. In April of this year the committal went by hand-up brief and you entered a plea of guilty. The matter was then listed for plea hearing in this court.3You receive the benefit of your early plea of guilty and the level of cooperation that short history of the proceeding shows. You have facillitated the interests of justice and I accept that you are remorseful.
4At the plea hearing, which also ran on 31 August, Ms Go, for the Crown, tendered a written Crown opening, a printout of sexual images you sent electronically to an undercover operative as part of the offending and a full history of the communications between you and the operative. A summary of significant parts is contained in the Crown opening. Ms Go also provided an outline of the Crown's submissions on sentence. Ms Franjic, for you, tendered the forensic psychological report of Jeffrey Cummins dated 30 August 2017. She also provided a written outline of plea submissions.
5The circumstances of offending are comprehensively set out in the tendered Crown opening, which is Exhibit A. My own summary may, therefore, be short.
6In May 2016 your Facebook account came under notice of the Victoria Police Joint Anti Child Exploitation Team. Accordingly, an undercover operative made contact with you on that account under guise of a 14 year-old girl. You maintained communication with her between 21 May and 7 December of that year. You were 30 years of age and revealed that. The conversations were at first general, friendly and non-sexual. In mid-July they began to be amorous and then developed to the sexual. By late September or early October they were more explicitly so. It progressed, for example, to a November conversation instructing her on how to masturbate. Paragraph 5 of the Crown opening sets out by example what might be called the pattern or progression of communications. In late November you spoke of male ejaculation and semen. You spoke of having sexual intercourse. Also, in late November there began talk of meeting, for example, at North Melbourne railway station. I do not find that such plans became immediate or close to fruition. However, you plead guilty to having an intention at least to encourage the girl to have sexual activity with you.
7Between late September and late November you sent what became sexually explicit images and video files. For example, paragraphs 9 to 11 of the Crown opening state - I perceive no problem with identifying the name of the operative, is that right, no problem with that? No, all right.
"On 8 November 2016 the offender sent DSC Shanahan an indecent image, namely a short video file of an erect penis of a male. The offender sent DSC Shanahan two indecent images, namely a short video file of the erect penis of a male ejaculating over the vaginal area of a female and an image of an erect penis of a male on 22 November 2016.
On 29 November 2016 the offender sent DSC Shanahan an indecent image, namely an image of an ejaculating erect penis of a male."
8Examples of such images were tendered in evidence.
9In early December there was, as I have said, conversation about meeting and about sexual intercourse. You were arrested on 8 December.
10You are a 31 year-old man who has no criminal history. You live with your mother in North Melbourne. She is supportive of you and has attended court. You have an older sister and younger half-brother. Your parents separated when you were four. Your mother re-partnered and this existed throughout much of your early life. Your natural father was physically abusive and your step-father dependent upon alcohol.
11You left school during Year 10. After that you worked as a landscaper for Melton City Council. A back injury there has limited employment since. You are still treated for that and there was a period of dependence upon strong morphine-based medication. Other jobs in more recent years have been at a newsagency and as a truck jockey. At the time of offending you were driving a tour bus. You have undertaken some study over the years. At the time of offending you were studying for a diploma in youth work. That and your job with the tour company has ceased. You suffer obesity and have been considering lap band surgery.
12You have never married and have no children. Your sexual and relationship experience has been limited. You seem not to have any friends and you present to me as a man who has come to live a, sadly isolated life. Mr Cummins describes a dependent personality style. He also states on his clinical assessment that you have below average intelligence, possibly being slightly below average. He does not diagnose significant mental health conditions. You suffer symptoms of anxiety and depression, likely related to your present court predicament. You are frightened of going to prison.
13As to risk of reoffending, Mr Cummins states the limitation of there being no standardised assessment tools directed at this category of offending. However, using more general guides, he states you to be of low risk. I am prepared to accept this. You also present to me as a person who will be considerably deterred by these proceedings and this punishment. I note also, however, that your record of interview and explanation of offending to Mr Cummins does not reveal a complete acceptance of the offending. I do find that you have understanding and insight into its culpability.
14Although there was no specific victim, your offending must be seen as serious. The offence and such investigation as here indicates the strong community interest and need to protect its young. As put by Ms Franjic, some of the aggravating features sometimes present in this offence were not so present here. However, in my view, as the communication developed, which it did over a quite prolonged period, it came to be both exploitative and predatory behaviour.
15The offence and circumstances make relevant sentencing considerations of deterrence, particularly general deterrence, your moral culpability and the need to state condemnation of what you did and adequately punish it. As stated during exchange with counsel during the plea hearing, I see general deterrence as a particularly important sentencing purpose. In your case, as suggested earlier, the importance of specific deterrence is somewhat reduced.
16I have taken into account matters which mitigate or should moderate your sentence. They include the following.
(1) Your plea of guilty. I find that you are remorseful, although that is, to some extent, compromised by your tendency to minimise in both the record of interview and to Mr Cummins.
(2) Your personal history and circumstances. I refer to my earlier comments about your life’s situation. There is room for some merciful consideration of your case. I also take into account your lack of criminal history. These things, of course, must be balanced against the need or attempt to achieve the purpose of general deterrence.
(3) I see you as having genuine prospects for rehabilitation.
17Ms Franjic argued for the non-custodial sentence of a community corrections order. I was directed particularly to the case of DPP v Singh [2017] VSCA 146. Ms Go also provided a short schedule of so-called comparative cases. I have decided that a community corrections order would not adequately meet the relevant purposes and considerations here. A proper sentence is that of a sentence of two and a half years' imprisonment but release after six months upon recognisance to be of good behaviour under s.20(1)(b) of the Commonwealth Crimes Act. That should be a condition to require compliance with an appropriate sex offender program. The moderating matters I have identified go particularly to reduce the length of custody to be actually served, given, of course, compliance with the recognisance order. It would be my expectation that programs under the order will also address the general factors affecting your situation and which may assist you and your rehabilitation. I made some reference to this during the plea hearing.
18Stand up, please.
19After considering what I see to be the relevant matters, I sentence you as follows:
20You are sentenced to two and a half years' imprisonment commencing today. After six months of that sentence, you are to be released upon a recognisance in the sum of $3000 to be of good behaviour. It should also be a condition that you comply with an appropriate sex offender program and/or other programs related to that and to your situation that you are directed to partake in.
21Take a seat, please, I will wait for the ‑ ‑ ‑
22MS GO: Your Honour, just confirming the period of good behaviour.
23HIS HONOUR: I see, the fact that it's a two and a half year sentence with six months and then release doesn't necessarily state the two years.
24MS GO: Yes, Your Honour.
25HIS HONOUR: I follow.
26MS GO: There is an option of having a period that could be even longer.
27HIS HONOUR: I think two years is the right - that was my understanding and intention.
28MS GO: And also ‑ ‑ ‑
29HIS HONOUR: I think two years is a sensible period. Yes.
30MS GO: And also two years for the sex offender program and supervision.
31HIS HONOUR: Well, that will be up to Community Corrections. They will arrange it and then he will have to attend as and when they decide. That's how it works under Victorian Community Corrections. Am I right, Mr Sturges?
32MR STURGES: You are, Your Honour, that's correct.
33HIS HONOUR: Yes. So for two years he is subject to the order, which includes that condition, and then they will decide what program, when, where, how explicit, how broad it is. It will be a matter for the experts. That's my understanding and intention.
34MS GO: And also for this ‑ ‑ ‑
35HIS HONOUR: Does that affect what you write down?
36MS GO: I've put down 24 months for the supervision, Your Honour, for the sex ‑ ‑ ‑
37HIS HONOUR: Yes, for the sex offender program.
38MS GO: For sex offender management in the Corrections.
39HIS HONOUR: Does it require a period?
40MS GO: Yes, Your Honour.
41HIS HONOUR: Do you want to say anything?
42MR STURGES: No, Your Honour.
43HIS HONOUR: I mean they'll do what they see is necessary to do.
44MR STURGES: They will.
45HIS HONOUR: What often happens is if people comply with and engage well with programs, they don't necessarily have them do it for two years, they ‑ ‑ ‑
46MR STURGES: Yes. As I understand it, Your Honour, there will be most likely a delay before he's able to enter the program.
47HIS HONOUR: Yes.
48MR STURGES: The program generally runs for nine months, as I understand it ‑ ‑ ‑
49HIS HONOUR: Yes.
50MR STURGES: ‑ ‑ ‑ and that should be able to be facilitated within the 24 month period.
51HIS HONOUR: Yes. I presume any failure to comply will mean return to me.
52MR STURGES: That's what I anticipate, or the Commonwealth would be alerted by Corrections and then they would ‑ ‑ ‑
53HIS HONOUR: It's not quite the same process as a Victorian sentence.
54MR STURGES: No.
55HIS HONOUR: But he's under the supervision of the same people, and as in any good behaviour bond, a failure to meet the terms of it means return to court and reconsideration of the ‑ ‑ ‑
56MR STURGES: That's my understanding, Your Honour, yes.
57HIS HONOUR: Yes. Is that what you think?
58MS GO: Yes, Your Honour. Under s.16F the bond has to be explained as well to ‑ ‑ ‑
59HIS HONOUR: Yes, well, I think I need say no more than what I've just said, but I'll say it to him.
60MS GO: I can hand it up.
61HIS HONOUR: Hand it up. Do I sign it first or does the ‑ ‑ ‑
62MS GO: Your Honour signs it.
63HIS HONOUR: All right, well, I'll sign it. So I sign the order and then he signs the recognisance.
64MS GO: Yes, Your Honour, before Your Honour's associate as a witness.
65HIS HONOUR: All right. Before I sign it I think I need to put it to him and that might cover that s.16A requirement.
66Stand up, please, Mr Murphy.
67What has happened is this. I have imposed a total sentence of two and a half years, but you can be released after six months upon what is called a good behaviour bond. That means if you agree to that process, you need to sign the bond conditions on this document today and I need to explain them to you. That bond, after your release in six months, will run for 24 months. You must be of good behaviour. You are to be under the supervision of Community Correctional Services and the Sex Offender Management Unit or a nominee of the Deputy Commissioner of Community Corrections. You are to attend for assessment and treatment for sex offender programs to reduce reoffending as you are directed. You are to report to the Carlton Community Corrections Centre within two days of your release from custody. You are to report and receive visit from Community Corrections. You are to notify Community Corrections of any change of address or employment within two days after the change. You are not to leave Victoria except with permission of Community Corrections and you are to obey all lawful instructions and directions of Community Corrections.
68I need to add this to you, that the good behaviour bond will run for two years after your release. If you fail to be of good behaviour, for example, if you commit another offence during that time, the effect of that will be that you will be brought back before me and I will have to turn my mind to re-sentencing you for these matters. Do you follow that?
69OFFENDER: Yes.
70HIS HONOUR: All right. Do you agree to that bond upon release?
71OFFENDER: I do.
72HIS HONOUR: All right. I will sign the order and I will get you to sign it as well. I don't need to sign anything else. That can be given back to - you can have a look at it and see if it's all been done properly. Have I got it right?
73MS GO: Yes, Your Honour.
74HIS HONOUR: Could I just repeat, I may be stating the obvious, my comments about the need for this man to be assisted broadly in terms of social engagement is not just motivated by sympathy I feel for him, but his rehabilitation and the protection of the community is going to be assisted by that, and I hope that happens. I hope you get some assistance when you return to the community, and it will be up to you to be cooperative in what assistance you are offered so that you do not find yourself in this situation again. You understand that, don't you?
75OFFENDER: Yes.
76HIS HONOUR: Yes, all right. Well, good luck when you do get released from prison.
77MS GO: Your Honour, just two matters. One is the sex offender registration ‑ ‑ ‑
78HIS HONOUR: Yes. Yes, it's eight years.
79MS GO: ‑ ‑ ‑ for eight years and the paperwork.
80HIS HONOUR: We'll print that out now. I forgot about that. Thank you. We spoke about that during the plea hearing. What is the second matter?
81MS GO: The s.6AAA statement.
82HIS HONOUR: Whilst that is happening, we need to do a few more things. I am directing this to the security officer. This man I see as being a very vulnerable person in custody, can you pass that down to the people downstairs as soon as you are able to do that ‑ ‑ ‑
83SECURITY OFFICER: Yes.
84HIS HONOUR: ‑ ‑ ‑ so that he is placed in a situation which he is not as vulnerable as he could be. Do you have medication that you need to take with you?
85OFFENDER: I do - I do have a prescription of medication which I have - I do use for my back, but I did not bring it with me, but I do have my doctor's name and where he works.
86HIS HONOUR: Can that be addressed too?
87SECURITY OFFICER: Yes, Your Honour.
88HIS HONOUR: Particularly the first matter, I'd be obliged.
89Now we spoke of this the other day. It is necessary for me to place you on what is called a sex offender's registration. It involves a number of things upon your release, and that will be explained to you by the relevant authorities. It includes that will you need to report for eight years and other information you need to provide. I am about to have given to you a document which explains it, and there is a second document which simply confirms that you have been given the first document, and you are going to be asked to sign the second document. You do not have to sign it or not, as you choose. All right. So that will happen now. Do I need to sign it first? We are going to give a copy of the bond to you, Mr Sturges; is that ‑ ‑ ‑
90MR STURGES: Thank you very much, Your Honour.
91HIS HONOUR: It is a much shorter document these days. Do I need to sign it? All right, well, that document is going to be given to you now and you are going to be asked to sign the second document. So that will happen now.
92(Document signed.)
93Thank you.
94There is one final matter I need to say to you, that if you had not have pleaded guilty to this offence, I would have imposed a sentence of imprisonment of three and a half years with a minimum term of two years.
95Mr Murphy's mother has come to support him and she is talking to the lady from Court - your mother can speak to you briefly before you are taken into custody, but it has got to be short. Mr Sturges, could you supervise that?
96MR STURGES: Certainly, Your Honour.
97HIS HONOUR: Do you wish to speak to him now?
98MR STURGES: If I could approach Mr Murphy, Your Honour.
99HIS HONOUR: Yes. I should imagine anti-pain medication, if necessary, will be given to him by the medical staff at where he's going?
100SECURITY OFFICER: (Indistinct words.)
101HIS HONOUR: All right. The first thing I said is the most important thing. I think you understand that.
102SECURITY OFFICER: (Indistinct words).
103HIS HONOUR: Yes, good on you. Thank you. Mr Murphy must be taken into custody now. Thank you.
104Thank you, Mr Sturges.
105MR STURGES: As Your Honour pleases. Thank you, Your Honour.
106HIS HONOUR: Thank you for your assistance the other day, too.
‑ ‑ ‑
0