Director of Public Prosecutions v Murphy

[2016] VCC 1663

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-02162

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK MURPHY

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July, 14 October and 7 November 2016
DATE OF SENTENCE:	7 November 2016
CASE MAY BE CITED AS:	DPP v Murphy
MEDIUM NEUTRAL CITATION:	[2016] VCC 1663

REASONS FOR SENTENCE
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Subject:        Criminal Law
Catchwords:
Legislation Cited:
Cases Cited:

Sentence:Residential Treatment Order for a period of 3 years and 6 months at DFATS for charge 1, charge 2 imprisonment of 3 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Ellis	OPP
For the Accused	Mr P. Higham	Pica Criminal Lawyers

HER HONOUR:

1Mark Murphy, on 12 July this year, you pleaded guilty to one charge of sexual assault, which has a maximum sentence of 10 years' imprisonment.  You also pleaded guilty to a charge of common assault, which has a maximum sentence of 5 years' imprisonment.

2I sentence you on the basis of the Prosecution Opening read out in court[1] on the first day, which is an agreed summary. On 27 July 2015, you were living in a supported residential service, where you sexually assaulted a 24 year old man who was also living there.  You sexually assaulted him by asking him to give you a “hand job”, trying to put your hands down his pants, and then pushing him onto his bed and undressing him, and touching his penis for more than five minutes.  That is charge 1. After you touched him that way, you told him not to tell anyone, you sat on his stomach, and you slapped and punched him across the face and head, and choked him.  You told him that you would kill him if he told anyone.  That assault is charge 2.

[1] Exhibit A

3Your victim was very upset by all this, and when you came back to the door of his room later that day, he did not answer your knock, and after you walked away, the young man ran away from the accommodation and caught a train to his mother's house.  He told her what happened and the police were called.

4The young man you assaulted has been very affected by what you did.  He wrote a statement telling me how this had affected him[2].  It was read out on the first day of your hearing, but that was a few month ago and so I will remind you what he said. He thought he might get brain damage from you punching him,  he had pain and bruising from it, and he is too scared to live in supported accommodation now in case he gets attacked again, and has gone back to live with his parents.  I take into account the effect on him in deciding your penalty.

[2] Exhibit B

5Mr Murphy, you have done this sort of thing before.  You have been charged with sexual assaults and common assaults before and all of your offences have happened when you have been drinking alcohol. You have received a number of court orders, including going to prison, but you have done the same sort of thing again.

6Your barrister told me at the first hearing in this court that you know you have to change, to stop doing this sort of thing, and you know that it happens when you have been drinking. It seems like the only thing I can do to help you stop this criminal behaviour and protect other members of the community is to make an order that means you will get treatment in a facility which will help you to learn to change your behaviour. I have heard evidence today that there is a place available for you at the Disability and Forensic Assessment and Treatment Service, known as DFATS.  You have been there before and you are prepared to go there again and do the programs. I am going to make that order, but before I do, there are some things I have to say to the lawyers and then I will come back to you and tell you what the sentence is.

7I take into account the factors into Mr Murphy's favour to which counsel referred me[3]. The first of these factors is the plea of guilty which occurred after the matter came to this court and a trial date was set, but well before the trial.  I find that this shows that by then[4] there was an acceptance of responsibility for the offending, and the plea also demonstrates a level of remorse for the impact on the victim. The plea of guilty has not only saved the community the time and cost of a trial, but it has saved the victim from the ordeal of giving evidence.  As a result, the sentence I will impose is less than would have been imposed had Mr Murphy been found guilty by a jury after a trial.

[3] Exhibit 1

[4] Mr Murphy denied the offences in his Record of Interview

8Next I take into account that Mr Murphy is a registered Disability Services client, assessed for eligibility in 2004, on the basis of his mild intellectual disability.

9I have had regard to the many reports provided over the years, the client Overview report and Pre-Sentence Report both dated 25 February 2011 and an associated Breach Report dated 11 February 2013[5] and risk assessments dated 13 October 2014 and 13 November 2015.[6]

[5] All in Exhibit 2

[6] Both in Exhibit 3

10I also take into account Mr Murphy's background as canvassed in the various reports.  I note that he used to live with his parents but that they asked him to move out because of his alcohol abuse and offending. His mother has since died and he has no contact with or support from his father or his brother who is married with a family. Mr Murphy had a number of jobs through a support agency, but his alcohol abuse led to him losing some employment. He began drinking at age 18, and from his mid-20s relied on alcohol as a coping mechanism.  He is about to turn 44.

11Mr Murphy has now been in custody since 28 July 2015. At the plea hearing on 12 July, I discussed with the parties the possible disposition, with the prosecutor submitting that no further time was sought in custody. Following some inquiries, a residential treatment order under s.82A of the Sentencing Act was put forward and so I ordered the reports required under s.82AA(2).

12I have now received those; a Pre-Sentence Report dated 22 August 2016 and a DFATS Assessment of Service Level One Report dated 1 September 2016, which comprehensively sets out Mr Murphy's history, his requirements for treatment, his current level of risk, and his readiness for treatment.  I also received a foreshadowed report on behalf of the accused from Ms Pamela Matthews dated 6 October 2016.[7]

[7] Exhibit 4

13On the next hearing date of 14 October, it was proposed that I make the residential treatment order but it transpired that a place was no longer available, although it had been advised to the defence that it was. The matter was adjourned to today and I have received a Plan of Available Services dated 18 October 2016, which indicates that a place is available today as well as the evidence from Ms Gallagher.

14The Plan of Available Services succinctly sets out that Mr Murphy meets the criteria for placement at the Intensive Residential Treatment Program.  The Assessment of Service Level One report states that Mr Murphy would benefit from residing at DFATS in this program for a minimum of three years. Counsel for Mr Murphy advised me on 14 October that it is proposed that at the end of the residential treatment order Mr Murphy's legal representative will seek an order under the Disability Act for continued supervision. Ms Gallagher explained the process for that as part of the transition back to the community which begins 12 months before the end of the residential treatment order.

15I am satisfied that for Charge 1, a residential treatment order is an appropriate disposition, even though Mr Murphy is to be sentenced as a serious sexual offender on that charge.  It is a disposition most likely to protect the community, which is the primary purpose for which sentence is to be passed on a serious sexual offender.

16Charge 2 is not an offence for which a residential treatment order may be made, and so for Charge 2 I propose to order a term of imprisonment which will be well short of the time that Mr Murphy has already served in custody. I must impose a sentence proportionate to the offence having regard to the seriousness of it as well as the personal circumstances of the offender, and so there will unfortunately be a substantial pre-sentence detention period that will not be able to be deducted from any sentence.

17In imposing sentence, and despite Mr Murphy's intellectual disability, I must also take into account deterrence, especially general deterrence which is of the utmost importance in cases involving sexual offending against a vulnerable person. Further I find that, without treatment, there is a risk of Mr Murphy committing more offences and so my sentence must also seek to provide specific deterrence.

18Before I turn to the sentence there is one further matter that I must deal with. Application has been made by the prosecution under s.11 of the Sex Offenders Registration Act for Mr Murphy to be registered in respect of Charge 1.  However he has already been placed on the sex offenders register for life by virtue of his convictions in 2011.  Therefore I do not propose to make another order.

19Coming back to you, Mr Murphy, I will now announce your sentence.  If you could stand up please.

20On Charge 1 of sexual assault, you are convicted and directed to be detained at DFATS for a period of 3 years 6 months.  I declare that for Charge 1 you have been sentenced as a serious sexual offender.

21On Charge 2 of common assault, you are convicted and sentenced to 3 months’ imprisonment.  I declare that you have served a period of 3 months’ in pre-sentence detention and this is to be deducted administratively from the sentence on Charge 2.

22To be absolutely clear, it is my intention that you be released immediately into the care of the Disability Services workers to transport you to DFATS after you have been processed.

23If you had not pleaded guilty to Charge 2, the sentence I would have imposed on that charge is 6 months' imprisonment. 

24The application under the Sex Offenders Registration Act is refused.

25So just to be clear Mr Murphy, you are going to be going to DFATS but you have to go back through the cells to be released.

26OFFENDER:  Yes.

27HER HONOUR:  The workers will then take you off there today and so that will be the end of your time in prison.

28OFFENDER:  Yes.

29HER HONOUR:  That is for three and a half years and the time in prison is already taken into account for the sentence of three months on the other charge, Charge 2.

30OFFENDER:  Okay.

31HER HONOUR:  All right.  Have you got any questions?

32OFFENDER:  No, thank you.

33HER HONOUR:  All right, thank you Mr Murphy.  Nothing further?

34MS ELLIS:  No, Your Honour.

35MR HIGHAM:  No, Your Honour.

36MS ELLIS:  As the Court pleases.

37HER HONOUR:  Thank you.  Then Mr Murphy may be removed and processed.  I thank his worker and Ms Gallagher in court for your assistance with this matter.

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