Director of Public Prosecutions v Murphy
[2016] VCC 573
•28 April 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00939
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW MURPHY |
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JUDGE: | Judge Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 28 April 2016 | |
CASE MAY BE CITED AS: | DPP v Murphy | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 573 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr P. Nibbs | |
| of Public Prosecutions | ||
| For the Accused | Dr M. Fitzgerald |
HER HONOUR:
1 Matthew James Murphy, you have pleaded guilty to charges of trafficking in a drug of dependence in a large commercial quantity, Charge 1, knowingly dealing with proceeds of crime, Charge 2, and possession of a drug of dependence, Charge 3.
2 The maximum penalty for trafficking in a drug of dependence in not less than a large commercial quantity is life imprisonment. The maximum penalty for knowingly dealing with the proceeds of crime is 15 years imprisonment. In the circumstances of this case, where I am satisfied on the balance of probabilities that the quantity of cannabis that you possessed was not for the purpose of trafficking. The maximum penalty for possession of a drug of dependence is five penalty units. Trafficking in a large commercial quantity of a drug of dependence is a base line offence for the purposes of the baseline sentencing provisions of the Sentencing Act 1991. I accept the prosecution submission that in view of the decision in DPP v. Walters [2015] VSCA 303 I should sentence without having regard to those provisions.
3 The prosecutor made application for a disposal order in respect of certain items and a forfeiture order was sought in relation to $67,000 in cash. The making of those orders was not opposed.
4 The circumstances of your offending are set out in detail in the Prosecution Opening on The Plea Hearing of Matthew Murphy which was tendered as Exhibit A. In brief, the circumstances of your offending are as follows. As at November 2014 you were the subject of a Joint Organised Crime Task Force investigation into the importation and distribution of cocaine in Australia. As a result of intercepted telephone conversations between yourself and other people, it became clear that you were wholesaling cocaine which was being sourced from Columbia. You would receive a commission of $10,000 per kilogram that you sold. You received instructions from your contacts in Columbia to sell the cocaine for $130,000 per kilogram.
5 On the evening of 12 November 2014, you had a phone call with a co-accused Quang Xuan Do about meeting him in the morning at your house. Shortly before 10 am the next morning, surveillance officers saw Mr Do arrive in the vicinity of your house. He met you at your front gate and you sent into the house where you were living. Mr Do returned to his vehicle and retrieved a white plastic bag which he handed over the fence to you. A few minutes later, Mr Do went back towards his car and waved to another co-accused, Cong Phuong Van. Mr Do drove off his vehicle and Mr Van drove off in his vehicle. Police intercepted both vehicles shortly after that. In Mr Do's vehicle police found a plastic bag containing 399.3 grams of cocaine, of 72.7 per cent purity, yielding a total net weight of 290.2 grams of pure cocaine which is part of the subject matter of Charge 1.
6 You were arrested and in the house where you were living was found a plastic bag containing $60,000 of cash in bundles, which is the subject matter of Charge 2. Police also found a small amount of cocaine and 27 grams of cannabis which is the subject matter of Charge 3. You are charged on the basis that the $60,000 in cash located in your possession was from the trafficking of cocaine and that you had sold Do 399.3 grams of cocaine of 72.7 per cent purity.
7 Later that day, police attended at the house of another co-accused, Charles Penrose Petrie. At Mr Petrie's residence police located a duffle bag containing two steel rollers containing 1902.4 grams of cocaine with a pure net weight of 1364 grams which was being held by Mr Petrie on your behalf. This cocaine is also included as the subject matter of Charge 1. Police also found $7,000 in cash being proceeds of crime held by Mr Petrie on your behalf. This amount of cash is part of the subject matter of Charge 2. An amount of cocaine of 750 grams or more is a large commercial quantity, with one kilogram being a large commercial quantity if the cocaine is mixed with another substance.
8 You were interviewed by police and admitted to possession of the cannabis and cocaine found in your bedroom. You answered "no comment" to allegations of involvement in cocaine trafficking. The matter was resolved prior to the final directions on 15 December 2015 and you were arraigned on that day.
9 Charles Petrie pleaded guilty to trafficking cocaine and possession of cannabis and was sentenced to a community correction order of 18 months with 100 hours of unpaid community work. Mr Petrie also gave a sworn undertaking to give evidence in relation to this Operation.
10 A further accused, Esteban Uribe-Velez, pleaded guilty to charges of recklessly dealing with proceeds of crime and possession of cannabis. Mr Uribe-Velez had a role in taking cash from you for delivery to the Columbian connections. Mr Uribe-Velez was sentenced by His Honour Judge Ryan on 13 August 2015 to a community correction order of three years duration with 300 hours of unpaid community work.
11 Quang Xuan Do pleaded guilty to trafficking in a commercial quantity of cocaine and possession of heroin. He was sentenced on 9 December 2015 to a term of imprisonment of four years and three months with a non-parole period of two years and three months.
12 Your co-accused Cong Phuong Van pleaded not guilty to certain charges. He was found guilty by way of jury verdict and has yet to be sentenced.
13 You have been in custody since your arrest on 13 November 2014. As at 11 March 2016 presentence detention was calculated as 362 days as you had served a term of imprisonment of four months during that period for later offending involving trafficking in cannabis and other minor offences.
14 In sentencing you, I have taken into account your personal circumstances which were described by your counsel and which are also set out in the report of Mr Gary McMullen, psychologist, dated 9 March 2016. You are now 37 years old. You were born in England. During your childhood your father moved between different countries for work reasons. You moved back to England when you were in Year 8. When you were about 14 or 15 your family was relocating and you refused to go. It was agreed that you would stay in England with a friend of your mother. It was around that age you began using cannabis. You completed your schooling and began working in a record shop. You greatly enjoyed working in the record industry and also worked as a DJ on weekends.
15 When you were about 22, your parents separated. By 1999 you were living with your mother and brother and had moved to New Zealand. You only saw your father once until November 2014. Your father now lives in Australia and has been very supportive of you during these proceedings. You also have a very close relationship with your mother who lives in England where she returned in mid-2014. You are also in regular contact with your older brother who lives in England.
16 In New Zealand you worked for a clothing distribution company. You worked in that company for three or four years and then you came to Australia and began work as an upholsterer, almost completing an apprenticeship. You then worked with a friend who ran a bakery. During this time you were involved with illegal drug use.
17 You have had a number of relationships with women, with the most significant relationship being with the mother of your daughter. You are separated but she remains supportive of you. After that separation, you began to use cocaine and began to spend large amounts of money. By the beginning of 2014 you were selling possessions to buy cocaine. At that time you had a relationship with another woman. This was a difficult relationship and you began using more drugs. You told Mr McMullen that you became involved in the cocaine trade because you were told that if you became involved, you could have as much cocaine as you wanted. Despite your past involvement with illegal drugs, you have no prior criminal history.
18 Mr McMullen says that your results on certain testing suggested that you are suffering from severe chronic post-traumatic stress disorder arising from your last relationship. He says the results suggest your symptoms are causing a severe impairment to your level of functioning. He suggests that you are also suffering from severe acute post-traumatic stress disorder as a result of your time in incarceration with the riots at the Metropolitan Remand Centre in which you were not involved. He also says that you fulfil the criteria for a diagnosis of major depressive disorder with anxious distress.
19 Mr McMullen sets out the symptoms of major depression and anxiety. He also sets out the symptoms of post-traumatic stress disorder. Mr McMullen suggests forms of therapy that might assist you with those matters and address your cannabis and cocaine use. Mr McMullen says that it is positive that since your incarceration you have remained drug free and have undertaken drug programs and taken on the role of peer educator. He says these steps suggest that you have a determination to permanently abstain from drugs and notes the high levels of support you are receiving from your parents, brother and the mother of your child.
20 In sentence submissions, your counsel described your role as being a sales agent for overseas principals. Your counsel conceded that there were indicia of planning and system involved in your trafficking but that it must be taken into account that you were charged on the basis of a limited period of offending conduct and a single wholesale transaction. Your counsel described the quantity of drug traffic as indicating that your offence was of relatively moderate gravity in comparison to other examples of large commercial trafficking. Your counsel submitted that it should be taken into account that there were limitations to your role in that you were paid a sales commission fixed by the principals and that there was evidence that there was direct communication between the principals and purchasers at times. Your counsel submitted that your role was a subordinate one, relative to the Columbian principals who supplied the cocaine and pre-arranged the sales transactions. Your counsel submitted that it should be taken into account that your offending had occurred in the context of your own drug addiction and need to support that addiction.
21 Your counsel relied in mitigation on a number of factors including your plea of guilty, your lack of prior convictions, the difficult conditions experienced in custody, your strong prospects of rehabilitation and your mental health.
22 Your counsel submitted that it should also be taken into account that there was no evidence that you were leading an extravagant or comfortable lifestyle and that on the contrary, you had no assets and there was evidence that you'd been living in shared rental accommodation in a property in fairly dilapidated condition.
23 Your counsel placed reliance on the fifth and sixth Verdins principles submitting that the mental health conditions you are suffering would mean that a sentence of imprisonment would weigh more heavily on you than on others.
24 I have taken into account that you have faced difficult conditions in custody as a result of the riots of the Metropolitan Remand Centre resulting in longer periods of lockdown and more restrictions on people in remand than would be usual. I do note that when the four months sentence was imposed on you, you had an option to move but chose to remain at MRC because you hoped to become a peer educator. In notes provided by you as Exhibit 4, you gave a very clear description of what it was like for you at the time of the prison riot and in the weeks following. You clearly had a very distressing time, not only at the time of the riots but afterwards as a result of the consequences of the riot including the person who was put in the cell with you.
25 I consider that you have reasonable prospects of rehabilitation. It is clear, as demonstrated by the material that was tendered in Exhibit 5 and Exhibit 6, you have completed courses in custody and commenced counselling. You have also engaged in the peer educator training program. You have family support. It appears that you have a degree of intelligence and ability to engage in work which is also encouraging.
26 You have a number of mental health issues which you need to address which would assist in your rehabilitation. You have been involved with illegal drugs over a long period of time and have engaged in self-destructive drug use despite seeing the negative impact that such use has had on others. Those matters and your preparedness to get involved in the trafficking of cocaine are the reasons why I am somewhat guarded as to your prospects of rehabilitation.
27 Ten character references were provided, Exhibit 3. Those references are from family and friends. The mother of your daughter speaks realistically but positively about your qualities of loyalty and good humour. She describes your relationship with your daughter as being a positive one. She also says you have expressed to her your shame and deep remorse at your behaviour, particularly in regard to the impact on your daughter. She is positive about your prospects of rehabilitation. Others speak of your ability to accept responsibility, your loyalty, your love of your daughter and your prospects of rehabilitation. They also say you are remorseful and sorry for what you have done.
28 One of your friends describes the changes in you since you have been in custody compared to when you were in the midst of what he regarded as a serious drug addiction. He says that you are now able to "converse with a clear head" and he believes that you will be able to reintegrate into society in a positive and constructive manner. This person has known you for 23 years and appears to have been realistic about your erratic and self-destructive behaviour in the past.
29 Matthew Murphy, the offending in which you engaged is serious. You are being sentenced in respect of one sort period of time but your role in the enterprise is relevant to sentencing you. You became involved in the business of selling illegal drugs in large quantities. I accept that what you did was under instruction from principals in Columbia but you were clearly a trusted operative. You clearly played a very active and major part in the drug trafficking business. That is evident from the level of commission you were to be paid and the telephone intercept material. I accept that you entered into this business because of your own drug addiction. I also accept that you apparently did not make much profit out of your involvement, given that you were living in what might be described as fairly poor circumstances. It may be, as suggested by one of the references, that you were somewhat out of your depth in this situation, but you took it on in order to obtain the means to support your very large cocaine habit.
30 The trade in illegal drugs is an evil one. It preys on the weakness of others. You clearly, over many years, had observed the extremely negative effects on individuals and their families from the use of illegal drugs. A sentence must be imposed on you which acts as a deterrent to those who decide to take this further step into trafficking drugs particularly in such large amounts. A sentence of imprisonment is clearly warranted for the purposes of denunciation, general deterrence, just punishment and specific deterrence. Specific deterrence must be given weight in sentencing you in order to discourage you from further offending and to encourage you to continue with your rehabilitation.
31 In mitigation of sentence, I have taken into account your plea of guilty. I accept that that has had a considerable utilitarian benefit and that it is an expression of your remorse and regret for your offending. On the basis of the material set out in the references, I accept that you are genuinely remorseful, particularly in relation to the consequences of your behaviour for your daughter. It appears from the references that in the past you have enjoyed yourself in activities such as music and skateboarding but have paid less attention to what needed to be done in order to act as a responsible partner and father.
32 I accept that you had difficulties in your relationship with your most recent partner and that drug use was part of those problems, but you were of a mature age by that time and ought to have been able to handle the situation in a more responsible way.
33 I accept that your mental health conditions as outlined in Mr McMullen's report make incarceration more difficult for you. It appears from what is said in the references and also in Mr McMullen's report that your mental health as stabilised and improved to a degree during your time in custody as you have been able to remain drug free and have engaged in counselling and other courses. The references describe you as being now in a much more positive frame of mind than you were when you were caught up in your drug addiction. That suggests that incarceration will not, in itself, make your mental condition worse.
34 I have taken the period of time you spent in custody serving the sentence that was imposed for later offending in application of the principle of totality. In fixing your sentences and degree of cumulation, I have also taken into account that the offending in Charges 1 and 2 is interconnected to a degree.
35 I have taken into account the sentences that were imposed on co-accused. Your role in this offending can be distinguished from the role of your co-accused in significant ways. Your role was higher up in the hierarchy than theirs, and although the charge is in respect of trafficking over a limited period of time, the amount of drugs were significant, being more than double the amount required for a large commercial quantity.
36 Could you please stand, Mr Murphy. Matthew James Murphy, on Charge 1, trafficking in a drug of dependence, large commercial quantity, you are convicted and sentenced to a term of imprisonment of 6 years and 6 months. On Charge 2, knowingly dealing with proceeds of crime, you are convicted and sentenced to a term of imprisonment of 18 months. On Charge 3, possession of a drug of dependence, you are convicted and fined $300. Six months of the sentence on Charge 2 is to be served cumulatively on the sentence of Charge 1. The total effective sentence is 7 years imprisonment. I fix 4 years and 6 months as the period you are required to serve before being eligible for release on parole. I declare that you have served 410 days of this sentence by way of pre-sentence detention.
37 But for your plea of guilty, I would have sentenced you to a term of imprisonment of 9 years with a non-parole period of 6 years and 6 months. I have made the orders for forfeiture and disposal sought.
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