Director of Public Prosecutions v Murphy

[2017] VCC 827

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00377

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN MURPHY

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May, 8 June 2017
DATE OF SENTENCE:	20 June 2017
CASE MAY BE CITED AS:	DPP v Murphy
MEDIUM NEUTRAL CITATION:	[2017] VCC 827

REASONS FOR SENTENCE
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Subject: criminal law - sentence
Catchwords: pleaded guilty  to 3 charges reckless conduct endangering a person,3 charges assaulting police on duty, 1 charge common law assault,  1 charge handling stolen goods; traffick in a drug of dependence, 2 charges possess drugs, 1 charge  prohibited person possess firearm; 7 summary charges – driving offences,   4 summary charges – deal with property suspected  proceeds of crime – 28 years old – extensive criminal history long-standing drug use – difficult childhood and family background.  
Sentence:  6 years with non-parole period of  4 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	DPP
For the Accused	Ms L. Torres	VLA

Pages 1 - 11

 

 

HER HONOUR:

1Sean Paul Murphy, you have pleaded guilty to a large number of charges, which include both indictable and summary charges. 

2The circumstances were that on 29 March 2016, you were seen in a car on the corner of Queen Street and A'Beckett Street Melbourne, using drugs with another man.  The car was a 2008 BMW sedan and you were driving it while your licence to drive was suspended.  That is Summary Charge 21.

3Police were notified and attended, using their vehicles to block your car at front and back to prevent your escape.  You started your vehicle and moved forward, colliding with the first police car.  You then reversed and struck the second police car.  That is Charge 1 on the indictment, reckless conduct endangering a person.

4You continued to rev the engine, turning the steering wheel and trying to put the car into drive.  One of the police officers broke the driver's side window with his baton and shouted at you to stop.  You refused to comply and continued to try to escape.  That is Summary Charge 7, failing to stop when requested. 

5Two other officers tried to pull you through the car window to stop you and you resisted violently, which resulted in one of the officers using OC spray.  In the struggle which followed, you bit that officer on the finger.  That is Charge 5 on the indictment, assaulting a police officer.

6You then rammed the police car with your car and began driving on the footpath.  The four police officers at the scene had to jump out of the way to avoid injury.  That is Charge 2 on the indictment, assault police.

7You drove away along A'Beckett Street, which constitutes Summary Charges 9 and 11, driving while your licence was suspended and failing to stop following an accident. 

8On reaching Elizabeth Street, you were overtaken by a police car.  You stopped and a police officer tried to get the keys by reaching into the window.  You reversed the car and accelerated away despite demands to stop, causing an injury to the officer's arm.  That is Summary Charge 12, failing to stop when requested.

9While reversing, you lost control of your car and drove up onto the footpath outside the Simply Spanish café, crashing into the outside café tables and chairs.  Customers seated at the tables fled to avoid the car and the flying furniture.  That is Charge 3 on the indictment, reckless conduct endangering a person. 

10You then drove to Racecourse Road via Flemington Road and drove up the middle of the tram tracks in Racecourse Road, throwing money from the car.  Police later found a total of $2165.  That is Summary Offence 15, dealing with suspected proceeds of crime.

11You continued through Kensington with two police cars in pursuit and drove on the wrong side of Epsom Road and into the path of oncoming traffic.  The police terminated the pursuit as it was unsafe.  That is Charge 4 on the indictment, reckless conduct endangering a person.

12A further episode of offending occurred when you drove back into the city down William Street, against a red light and through a pedestrian crossing on
La Trobe Street.  This is Summary Offence 17, failing to stop at a traffic signal. 

13Two of the pedestrians crossing the road made statements and described how you approached the crossing slowly and stopped, and with several pedestrians in your path, you leant out of the car window and waved a gun around and shouted to them aggressively to get out of the way.  That is Charge 6 on the indictment, common assault.

14You abandoned the car in Downie Street, leaving the engine running and keys in the ignition, giving rise to Summary Offence 18, failing to stop the engine. 

15In the car, police found a number of stolen items, an iPad Mini, a Samsung tablet, three Apple iPods, two MacBook Pro laptops, an ASUS computer, a GUESS watch, and a passport and personal documents belonging to another person.  That is Charge 7 on the indictment, handling stolen goods.

16Police also found $1223.10 cash in the car, believed to be the proceeds of crime, which is Summary Offence 19, dealing in suspected proceeds of crime. 

17Two weeks later on 15 April 2016, you were seen in Stanley Street, West Melbourne, near a 2004 BMW, selling drugs.  That is Charge 9 on the indictment, trafficking drugs. 

18The police stopped you from leaving the scene by taking the keys from the car before you could start it.  You ran away but police caught you and held you to the ground.  You resisted violently and had to be subdued with OC spray.  More police arrived and you were eventually handcuffed and arrested after a violent struggle.  During the course of the arrest, you assaulted four police officers, biting one on the arm.  That is Charge 8 on the indictment, assaulting police. 

19Police searched the car and found plastic bags containing 50.6 g of heroin, which is Charge 9 on the indictment, as I have already stated.  They also found plastic bags containing 7.5 g of methylamphetamine, Charge 10 on the indictment, a plastic bag containing 0.8 g of MDMA, Charge 11 on the indictment. 

20The sum of $15,880 in cash was also found, believed to be the proceeds of crime, which is Summary Charge 33, dealing in suspected proceeds of crime. 

21A replica Glock pistol was also found, which is Charge 12 on the indictment, a prohibited person possessing a firearm. 

22Six items of jewellery, including a watch, were also found, which is Summary Charge 34, dealing in suspected proceeds of crime.

23As to the maximum penalties for these crimes, handling stolen goods and trafficking in a drug of dependence both carry a maximum penalty of 15 years' imprisonment.  The other offences carry maximum penalties at various lower levels and two of the summary offences attract fines only.  I have set out the maximum penalties in a footnote in these sentencing remarks[1]. 

[1] Reckless conduct endangering person : 5 years (Level 6)

Assault police officer in execution of duty : 5 years (Level 6)

Handle stolen goods: 15 years (Level 4)

Traffick drug of dependence (Diacetylmorphine): 15 years (Level 4)

Possess drug of dependence (methylamphetamine): 30pu or 1 year (Level 8)/400pu or 5 years (Level 6)

Prohibited person possess firearm : 10 years or 1200 pu

Fail to stop when requested: 10pu/20pu or 4 months

Driving while suspended : 30pu or 4 months/240pu or 2 years

Failing to stop following accident: 80pu or 8 months/240pu or 2 years

Deal proceeds suspected of being proceeds of crime: 2 years (Level 7)

Fail to stop at traffic signal: 10pu

Failing to stop engine: 3pu

24After your arrest, you remained in custody.  You applied for bail twice in August and September last year but both applications were refused.  The committal was held on 1 March this year and you entered a plea of guilty to appropriate charges without requiring any witnesses to give evidence.  You are entitled to a discount on your sentence for having avoided a trial and for having pleaded guilty at the earliest possible time. 

25By that means, you have facilitated the progress of the case through the criminal justice system and it is accepted that a discount is warranted in those circumstances.  Your plea is also an indication that you have accepted responsibility for the offending.

26You are a 28-year-old single man who has an extensive criminal history linked mainly to long-standing drug use.  You were aged 16 at the time of the offending.  Probably owing to a combination of unfortunate circumstances in your childhood and family background, your late teenage years saw you before the courts for various types of offending, and you were given many chances to avoid prison.

27However, you breached community orders and a suspended sentence in your early 20s, following the escalation of your drug use, and you served several short sentences. 

28At the time of committing the offences before me now, you had been released after serving a sentence of eight months and had commenced a Community Correction Order in October 2015, but had made little headway. 

29You became disengaged from that order when you left the flat where you had been living, having discovered that the police were looking for you in connection with the prison riots which had occurred when you were serving your sentence.  You had not been involved in them.  You then became homeless and with no income, you began selling drugs. 

30You also have a number of prior convictions for traffic offences, including car theft and for diving whilst disqualified. 

31You were born in Melbourne, where you lived until aged ten when your family moved to Merimbula.  During the following years, there were significant family problems, with your mother suffering from an undiagnosed mental illness.  This caused turbulence in the family, with your mother leaving from time to time and your father going after her, leaving you and your siblings to look after yourselves. 

32Unfortunately, your father, struggling to maintain the family, turned to the use of amphetamines, causing more difficulties in the family.  You experienced these years as unhappy ones and you were bullied at school, where you felt you did not fit in. 

33You felt you were treated unfairly and even a move to a different school, arranged by your parents, saw no improvement.  At both schools, you were placed in remedial classes for children with behaviour problems, with the first school having alerted the second school, thereby preventing the fresh start for which you had been hoping.

34As a result, you did not complete your secondary education and left school early.  You were exposed to drug use and anti-social behaviour and your parents were not able to provide consistent supervision and support. 

35At the age of 17, you moved back to Melbourne with your father, while your mother remained in Merimbula with your youngest sibling who, as a toddler, was diagnosed with Autism.  Your father ceased drug use and you also avoided hard drugs. 

36For two years, you worked in two jobs, both of which you enjoyed, but a hoped-for apprenticeship did not eventuate.  However, this stable period did not prevent you from offending and you had two appearances in the Children's Court. 

37At the age of 20 you were introduced to heroin by an older woman with whom you were in a relationship, and the more serious offending occurred after this. 

38Around this time, your mother was diagnosed with bipolar affective disorder and was appropriately medicated.  Your parents now live together with your youngest sibling, who is now 15.  You are close to them and to your two sisters. 

39Your reaction to the police on each occasion in March and April last year was in response to your fear that you would be apprehended in relation to the prison riots and for having drugs and other related items in the car. 

40You describe yourself as having been overwhelmed and fearful of being hurt, leading to panic.  It is likely that your judgment was affected at the time by the drugs you had been using.  Apparently, you now understand that you placed people's lives in danger, but that is the closest you seem to come having any remorse. 

41The chronology of the events read as a tragedy about to happen and perhaps it was only good luck that prevented someone being badly injured or even losing their life.  It seems that you were so intent on looking after yourself that you failed to see the risks that you were taking and creating for others.

42You have been in a management unit for the past six months in Barwon prison, as the result of a scuffle between yourself and a prison officer, which you say occurred because of a misunderstanding.  You have not been charged and you are finding the isolation very difficult, with no access to programs or jobs.  Your hope is that once you are sentenced, you will have such access.

43Your other hopes are to remain drug free after six years of drug abuse and to eventually work in the woodwork and furniture trade.  You are still relatively young.  You have strong family support and overall, your prospects for rehabilitation are probably reasonable with the support of a parole program.

44These combined circumstances call for a prison sentence which acknowledges the seriousness of your offending and addresses the need for specific as well as general deterrence, but that is not crushing. 

45It was submitted by the learned prosecutor that the offences are at the higher end of the range of reckless conduct endangering a person and that some cumulation is called for.  I agree with that submission. 

46As I have already intimated, an out of control car on a footpath, or advancing into the path of oncoming traffic is a horrifying scenario, with the distinct possibility of killing or seriously injuring one or more people. 

47Shortly, I will set out the sentences I am imposing on each charge.  First, I will make some observations about the maximum penalties applicable to certain of the charges. 

48As I said earlier, handling stolen goods and trafficking in drugs are very serious charges which carry maximum prison sentences of 15 years.  You have prior convictions for these charges.  Similarly, the charge of being a prohibited person possessing a firearm is also very serious, with a maximum sentence of ten years, and you have prior convictions for other types of firearm offences.  The maximum penalty for each of Charges 1, 3, and 3, which are all charges of reckless conduct endangering a person is five years imprisonment. 

49In the circumstances of this case, considerable emphasis on those charges is warranted because of the great danger your conduct presented to the public at the time. 

50I note that you have prior convictions for driving while your permit or licence was suspended, so the penalty for the subsequent offending against that provision attracts the higher maximum sentence. 

51As for the charges of possession of drugs, the maximum penalty is 30 penalty units or 12 months imprisonment if the drugs were for personal use.  If their possession was for the purposes of trafficking, the maximum penalty is 400 penalty units or five years imprisonment. 

52In relation to Charge 11, the tablet was for personal use, so the lower maximum penalty applies.  In relation to Charge 10, the drugs were for trafficking purposes, so the higher penalty applies.  As to Summary Charge 11, failing to stop after an accident, because no person was injured, the lower maximum penalty applies. 

53The sentence for Charge 3 will be the base sentence for purposes of cumulation.  There will be some cumulation to reflect the fact that there were two separate episodes of offending on the same day, and a third set of offending two weeks later, each set of offending involving multiple charges of varying gravity.

54In sentencing you now, I have maintained the order of the charges as they appear in the prosecution summary:

summary charge 21, driving while your permit was suspended, six months' imprisonment; 

charge 1 on the indictment, reckless conduct endangering a person, two years' imprisonment;

summary charge 7, failing to stop when requested, two months' imprisonment;

charge 5 on the indictment, assault police, nine months' imprisonment;

charge 2 on the indictment, a further charge of assaulting police, 12 months' imprisonment; 

summary charge 9, a further charge of driving while your permit was suspended, six months;  

summary charge 11, failing to stop after an accident, three months; 

summary charge 12, a charge of failing to stop when requested, two months;

charge 3 on the indictment, a further charge of reckless conduct endangering a person, two years' imprisonment and that is the base sentence;

summary charge 15, dealing in property suspected of being the proceeds of crime, nine months;

charge 4 on the indictment, a further charge of reckless conduct endangering a person, two years;

summary charge 17, failing to stop at a traffic signal, a fine of $500;

charge 6 on the indictment, common assault, six months' imprisonment;

summary charge 18, failing to stop the engine of your car, a fine of $75;

charge 7 on the indictment, handling stolen goods, two years' imprisonment;

summary charge 19, a further charge of dealing in property suspected of being the proceeds of crime, nine months;

charge 9 on the indictment, trafficking in a drug of dependence, two years;

charge 8 on the indictment, a further charge of assaulting police, nine months;

charge 10 on the indictment, possessing drug of dependence for trafficking purposes, 12 months; 

charge 11 on the indictment, possessing a drug of dependence for personal use, six months;

summary charge 33, a further charge of dealing in the proceeds of crime, nine months;

charge 12 on the indictment, being a prohibited person in possession of a firearm, two years;

summary charge 34, a further charge of dealing in property suspected of being the proceeds of crime, nine months. 

55I make the following orders for cumulation:

six months of each of the sentences for Charges 1, 4, and 10 on the indictment; four months of each of the sentences for Charges 7, 9, and 12 on the indictment; three month of the sentence for Charge 8 on the indictment;

two months for each of the sentences for Charges 2, 5, and 6 on the indictment and  one month for summary Charges 15, 19, 33, and 34, and charge 11 on the indictment.

56Those periods of time will be served in cumulation upon the sentence for Charge 3 on the indictment.  This results in a total effective sentence of six years.  I order that you serve a minimum period of four years before being eligible for parole. 

57Pursuant to s.89 of the Roads Safety Act 1986, I order that any learner's permit or licence you may hold is cancelled, and you are disqualified from obtaining a further permit for seven years from today. 

58You have already served 431 days in pre-sentence detention.  That time is to be reckoned as already served and I shall cause it to be noted on the court record. 

59If you had pleaded not guilty to these charges, I would have sentenced you to seven years' and six months' imprisonment, with a non-parole period of five years and six months. 

60The prosecution seeks orders for the forfeiture and disposal of items that were seized and those applications are not opposed, and I make those orders. 

Mr Pickering, is there anything else I have neglected or omitted?

61MR PICKERING:  No, Your Honour.

62HER HONOUR:  Thank you.  Ms Torres?

63MS TORRES:  No, Your Honour.

64HER HONOUR:  Very well.  Mr Murphy may be taken now, thank you, officer. 

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