Director of Public Prosecutions v Murphy

[2015] VCC 860

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 14-00648

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW MURPHY

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	24 June 2015
CASE MAY BE CITED AS:	DPP v Murphy
MEDIUM NEUTRAL CITATION:	[2015] VCC 860

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Mr J. Lowy

HIS HONOUR:

1Andrew Scott Murphy; you have pleaded guilty to an indictment charging you with arson; Charge 2, stealing a gas bottle; Charge 3, and with attempting to pervert the course of justice; Charge 4.  You have also admitted a number of prior court appearances and convictions, the most recent being an appearance before the Bendigo Magistrates' Court on 18 April 2013 for which you received a six month community corrections order for unlawful assault. That order was in force at the time that these offences were committed.

2I note you have also been convicted of intentionally causing damage to property, for which you were fined an aggregate of $1000, which was also for an offence of without authority entering a private place. That occurred on 15 March 2012.

3The prosecution has tendered a summary of prosecution opening on the plea; Exhibit A. That was read to the court this morning, with one amendment; erasing paragraph 3 of the original draft. The facts set out in that document are accepted by you as being an accurate account of the relevant events.  No issue was taken with the facts that were stated.  I am not going to read that document again, but I incorporate it into these reasons for sentence in its entirety.

4Clearly the offence of arson is a particularly serious offence.  It carries a maximum term of imprisonment of 15 years. It does not take much thought to see why - particularly when an urban dwelling house is involved, the offence is to be treated as a serious one.  Other houses were close by, you had no control over the extent to which the fire might encroach upon other dwellings in the area and cause risk to life or limb of persons who might be in those houses, or indeed, in the house that you set on fire.  In addition, it requires emergency services to attend.  They do not know when they get there whether there is anybody in the house, they have no means of assuming that the property is empty, and they are put at risk.  Furthermore, it caused a very significant degree of damage. The damage is estimated at $348,000, or thereabouts.

5The photographs of the damage show the extent of the damage to the property itself, and, there were items of furniture and clothing and personal items that have been destroyed in the course of the fire.  The circumstances in which the offences occurred is against a backdrop of you threatening your former partner, the occupant of the house, that you would burn her house down. Ultimately that is what you did in committing the offence the subject of Charge 2.

6The text messages on the evening and the early hours of the morning, prior to the offences being committed, reflect a growing degree of frustration, or anger, on your part - and perhaps also, the degree to which you had become intoxicated. But none of the exchanges between you and Ms LaPianta could justify in any way the conduct in which you engaged that night.  It is utterly deplorable.

7I understand that you have expressed remorse for it now, but your conduct near the time did not suggest you were remorseful.  Indeed, you stole a gas bottle from the premises and then later sought to involve somebody else in an attempt to deflect the blame for these offences away from you. It resulted in you being charged and having pleaded guilty to attempting to pervert the course of justice.You were not remorseful for your conduct at that particular time, even though it must have been clear to you that you had committed the offence, whether or not you actually remembered it immediately after the events.

8As Dr Walton suggested in his report, there were too many voluntary acts on your part to support the proposition that you were acting as an automaton that night.  Clearly you were acting with intent and purpose. You knew what you were doing and why you were doing it. You carried out the offence with a mind that clearly showed that you were intent on committing the offence that you had threatened to commit when you and Ms LaPianta broke up.

9The prosecution also tendered a victim impact statement of Ms LaPianta, which was read by her to the court. One can well imagine the anguish and hurt, and the emotional distress and ongoing psychological damage that she has suffered as a result of your conduct.  As Mr Cordy rightly pointed out, the victim in an offence like this - and there is not just one, there are her children as well - their injury and the effect upon them, must be taken into consideration in determining an appropriate sentence. I am required by the law to take that into account.

10Your counsel provided me with a helpful outline of submissions, which is Exhibit 1, along with a bundle of correspondence, which is Exhibit 2, and a report of Dr Lester Walton dated 18 August 2014, which I understand was supplemented, but the supplementary report did not take the matter any further, so that was not relied upon.

11All of that material shows that you have been suffering from a longstanding mental illness, or mental illnesses - bipolar disorder, longstanding depression, and anger and rage issues. You have been treated for a number of years for those conditions.  Unfortunately, you have also abused substances, including alcohol, and it would seem that alcohol played a significant part in the events of 26/27 July of 2013.

12You were born and raised in Bendigo. You had a difficult upbringing, but nevertheless, you got through school, and you have at least average intelligence.  You, through your psychological and your cardiac and other health problems, have been a disability support pensioner for some time, and you are presently on a disability support pension.  You have three children aged 18, 14 and 12, and you have some contact, it seems, at least with the eldest of those children.

13You have sought assistance in the past for your psychiatric problems. You have also sought assistance for your alcohol problems.  It is very much to your credit that you have taken it upon yourself to address some of the underlying contextual problems which formed the backdrop to this offending. To that extent it seems to me that your prospects of rehabilitation, putting all this behind you, would appear to be reasonably good if you can bring your drinking under control and maintain a regular and appropriate prescription medicine regime.

14The fact that you are well supported in this court today also suggests that there is good in you.  You have a new fiancé, you have her family - young family. She is isolated somewhat from her family and you have been of very considerable assistance to her in recent times.  Unfortunately, you will be deprived of the opportunity to continue that support, and she will be deprived of you being at home for some time, and you will, no doubt, bear that hard during the period of your incarceration.

15Your counsel pointed to the underlying psychiatric and health problems as matters which I should take into account in reduction of sentence, and you will recall that there was some discussion during the course of the plea about those aspects.  Ordinarily a person with a number of psychiatric issues of the kind that you have - particularly where they may be relevant to the offending conduct itself - would result in a significant modification of the moral culpability for the offence.

16However, in your case I think it is well recognised that you have had experience of alcohol induced blackouts prior to this particular evening.  I am not convinced that you were suffering from an alcohol induced blackout on this particular evening, or as a result of it. But even if that were the case, it cannot be said, in any way, to mitigate your offending conduct. I think it is fair to say that Mr Lowy has not put it forward in that way.  He has put that aspect of your instructions forward as an indication of why it is that you had difficulty in accepting that you had committed the offence of arson, and indeed, the theft of the gas bottle.  And he puts it forward as an indication of the extent to which I should give you credit for you plea of guilty. I accept his submission that you should be given full credit for your plea of guilty for saving the cost of a trial, and also saving the witnesses - in particular, Ms LaPianta - from having to come to court and give evidence in a trial and submit to cross-examination.

17All of that is very much in your favour, and to the extent that you have difficulty in recalling the events of the night, and therefore, in accepting that you behaved in that particular way, then your plea of guilty is particularly laudable. But, as I say, you clearly had a number of other alcohol induced blackouts prior to this particular evening. You also, apparently, had been informed that you had behaved stupidly on such occasions, and must have realised that by drinking a large quantity of alcohol on this particular night - you claim it was about $150 worth - that you may do something silly, particularly in circumstances where you were jealous, angry, and in a vengeful state of mind, as you must have been on this particular night.

18The degree of mitigation of your moral culpability arising from your mental impairments is less substantial than it might otherwise have been for those reasons, because it was you who voluntarily drank what you drank on this particular night, and put yourself at risk of doing something like you ultimately did.  However, that is not the end of the issue so far as the application of what are known as the Verdins principles are concerned, because it seems to me to be clear that a person suffering from your mental impairments will find it more difficult within the prison system, and I therefore take that into account in reducing the sentence that I otherwise have imposed.  Also, I think it is to be inferred, that there is a real risk of your mental health deteriorating further whilst you are incarcerated, and again, I take that into account in reduction of sentence.

19Your expressions of remorse, I think, are to be accepted as genuine, albeit that they came somewhat later than one might expect, when you must have realised - once that gas bottle had been produced - what you had done.  And the path you chose was one involving the events, or the actions involved in Charge 4; the attempting to pervert the course of justice, rather than showing remorse at that time.  However, I accept that since then you have had time to reflect, and that you are now remorseful.

20I accept also that the references that have been placed before me suggest that you have a good side, and that when you are medicated and sober, that you are capable of being a thoroughly decent individual. It is to be hoped that you will, ultimately, get to grips with the alcohol issues, and that you will - once you have served your sentence - be able to lead a more fruitful life, perhaps by getting some work and settling into a steadier and more sober lifestyle with your fiancé.  It is very much a matter for you.  It will be very much in your hands regarding the extent to which your rehabilitation is successful. I am bound to take into account the need to promote that as far as I reasonably can.

21However, I am also required to denounce your conduct - and it is an example of a very serious offence - to punish you adequately for what you did, to deter you from committing further offences - and I think that Mr Cordy's right in saying that that is a significant factor in this case - and most significantly, to deter others from engaging in conduct of this nature, which, as I say, is thoroughly dangerous at best. I note that in your particular case there were signs that the dwelling itself may have been occupied, You had no control over where the fire might have gone from the particular dwelling which was your target.  Doing the best I can to balance all of those factors, I am now ready to impose sentence upon you.

22On Charge 2 of arson; I convict you and sentence you to imprisonment for a period of three years and six months.

23On Charge 3 of theft; I convict you and sentence you to imprisonment for a period of one month.

24On Charge 4 of attempting to pervert the course of justice; I convict you and sentence you to imprisonment for a period of four months.  All of those sentences will run concurrently, making a total effective sentence of three years and six months, and I order that you serve a period of two years and four months before you become eligible for parole.

25But for your pleas of guilty I would have sentenced you to a total effective sentence of four years and eight months, and ordered a non-parole period of three years and two months.  I also make the orders for the provision of a forensic sample, and for the disposal of property in accordance with the drafts with which I have been provided.

26The order for the provision of a forensic sample will require you to provide a scraping from the inside of your mouth.  If, when asked by an authorised officer to provide that scraping, you do so, that is the end of the matter.  If, however, you fail or refuse to do so when asked, then the officer will be authorised to take blood from you, and may use reasonable force to do that.  I am quite sure you will not put them to that trouble.  Any other orders, gentlemen?

27MR CORDY:  No, Your Honour.

28HIS HONOUR:  All right, thank you.

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