Director of Public Prosecutions v Murphy

[2014] VCC 1469

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00363

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN MURPHY

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 August 2014
CASE MAY BE CITED AS:	DPP v MURPHY
MEDIUM NEUTRAL CITATION:	[2014] VCC 1469

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Jelena Malobabic	OPP
For the Offender	Ms B. Franjic	Robert Stary & Associates

HIS HONOUR:

1You, Damien John Murphy, have pleaded guilty before me to one count of aggravated burglary.  You also pleaded guilty to two related summary offences.  The first being a count of unlawful assault and the second being a charge of contravening a Family Violence Intervention Order.  The circumstances giving rise to these matters are fully set out in Exhibit 1 in the summary of prosecution opening and they arise in the following way. 

2Prior to the offending you were in a domestic relationship with the victim.  You met in September 2012 and the relationship concluded in May 2013 although thereafter you visited her from time to time.  On 12 September 2013 at approximately 9 pm you entered the victim's house and she told you to leave.  You said you would smash or kick your way in and then sent a range of text messages to her which are set out in paragraph 5 of Exhibit 1.  You then left.

3The following day on Friday 13 September at approximately 3.15 am you returned to the address where you kicked in the rear laundry door before making your way upstairs to the victim's bedroom.  You kicked the door to the bedroom removing it from its lower hinges.  Those matters give rise to Charge 1 of aggravated burglary.

4Once inside the bedroom you jumped on the bed and yelled at the victim.  She then ran downstairs and you ran after her.  You then removed a 30 centimetre kitchen knife from the kitchen drawer and as the victim opened the front door of the house and she asked her to leave, you charged towards her holding the knife in your left hand at shoulder height with the blade pointed towards her.  These matters give rise to the first of the summary charges being assault with a weapon. 

5At that stage the victim was frozen with fear and told you not to do anything stupid. She believed that she was about to be assaulted with the knife.  You then held the knife to your wrists and she told you not to do anything stupid to yourself.  You then threw the knife onto the floor.

6You then waited for the police to arrive.  You were arrested on that day and conveyed to the police station where you made a no comment record of interview.  You were released pending a summons.  You were served with an interim intervention order and conditions were explained to you by the police.

7Two days later on 15 September at 2.00 am the victim received a text message and thereafter a further text message.  On 14 September you made five telephone calls to the victim.  All of these matters were contraventions of the Family Violence Intervention Order.

8You were arrested with respect to these matters on 15 September and in a recorded interview with police made a number of admissions which are set out in paragraph 23.  Of significance are your answers at questions 136 to 139 where you say you had not been sleeping for four days and you were on an ice binge.

9You were charged on 8 October.  Your bail was revoked on 15 October as you had been charged with other offences.  You were released again bail on 13 November 2013 and you have spent 30 days in custody which is agreed to be declared as pre-sentence detention in addition, obviously, to that further time since you made your plea.  What is that time agreed at?

10COUNSEL:  Forty days, Your Honour.

11HIS HONOUR:  Forty, thank you.  There is no victim impact statement provided in this matter although the victim was provided the opportunity of making one.  I have no doubt she suffered considerably as a result of your actions as the opening before me describes.

12As, of course, was pointed by your counsel in very helpfully provided extensive written submissions, there are a number of mitigating factors.  You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial.  I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial. 

13Further I take it into account in your favour that you pleaded guilty at the contested committal prior to any witnesses being called.  That you were quickly apprehended and you made extensive admissions when you made your recorded interview with the police as I described.  I do accept in the circumstances your plea does indicate true remorse for your actions. 

14Your personal history and circumstances have been explored in great detail both in a number of medical reports made available to me on this plea, to which I will refer in a moment, but also most hopefully in the sentencing remarks of Her Honour Judge Millane of 3 December 2007.  At that time you were before Her Honour as a consequence of pleading guilty to one count of armed robbery.  That robbery occurred in 2001 although for various reasons your involvement in it was not discovered until early 2005 or thereabouts.

15Her Honour very helpfully sets out your personal circumstances at paragraph 18 forward and also refers to a report prepared by Mr Cummings, a clinical and forensic psychologist, following two assessments of you during July 2007.  In addition to that there is a medical report from the Sorrento Medical Centre in October 2007.

16That which concerned Her Honour and was the subject of submissions was your significant drug addiction and involvement in the drug trade at that time and it was said that you were involved in the offending as a consequence of owing a debt to a drug dealer.  Those matters are fully explained in Her Honour sentencing remarks.  Her Honour accepted Mr Cumming's opinion that you were probably suffering from cocaine dependence at the time of the commission of the armed robbery and that you were probably then experiencing a cocaine induced mood disorder.

17With respect to your personal history I think it appropriate to refer to the report on your behalf prepared by Ms Carla Lechner, clinical and forensic psychologist, dated 17 June 2014 which I have marked as an exhibit in the matter.  You are aged 44, the second child and only son born to your parents who are aged 70 and 69 at the time of the writing of the report.  You report a very positive relationship with your parents.  You had a relationship from which you had two children, who are aged 13 and ten respectively.  There is currently an intervention order in place preventing contact as Ms Lechner referred to those matters.

18Your early life can only be described as peripatetive as you grew up, as you say, all over the place.  When aged 13 you were involved in the Ash Wednesday fires that swept through Macedon.  Everyone was deeply affected by the fires and you suffered burns which required hospitalisation. 

19Your parents, who had then owned a hotel at Macedon which had been sold, moved to Darwin where you attended the local high school.  That was an unhappy time for you.  The family then moved to Ashgrove in Brisbane where you again had an unhappy time at the school.  You returned to Melbourne and completed a degree in Business Management at the Footscray Institute of Technology before starting your own business involving selling sporting caps and that was reasonably successful before you began another business of selling bottled water, which was also successful for a time.

20In 1992 your father moved to Hong Kong and you followed him and remained

there again in the business of selling water between 1993 and 1998.  At that time you met your wife, whom you married in 1997.  You then returned to Australia in 1998 and took on the position of General Manager of the Portland Brewing Group until early 2000 when the company went into receivership.

21Your recent past was described in some detail by your counsel and of course is referred to in the reports but what is significant is that you were imprisoned between December 2007 and February 2011 as a consequence of your conviction for armed robbery. After your release from prison you worked at the desalination plant until mid-2013 when you took up work in Melbourne operating tower cranes.  You then formed a relationship with the victim in this matter.  Clearly that relationship was highly problematic and unfortunately led you both to the consumption of the drug known as ice in circumstances which were explained to me.  You explained your involvement in these offences as occurring in the context of ice use over three consecutive days. 

22Since your release on bail with respect to this matter you have clearly utilised the time available to affect your rehabilitation as best you can and I will refer to that matter in a moment. 

23Ms Lechner administered the Beck Depression Inventory to you and your score falls in the moderate range, this being consistent with your presentation at interview and your diagnosis of clinical depression.  It was her view that you present with symptoms of stimulant use disorder in remission and a moderate level of depression and that your offending occurred in the context of a volatile relationship, significant drug abuse and sleep deprivation.  She notes that since being released on bail you have worked hard at rehabilitating yourself and you express shame for your actions and currently presented with a positive prognosis.  It was Ms Lechner's view that you currently presented as a low risk of reoffending in light of your insight, remorse, employment prospects, family support and willingness to engage with treatment services. 

24These conclusions were contested in submissions by Ms Malobabic who appeared for the prosecution and drew my attention to various matters that she submitted were not adequately addressed or dealt with by Ms Lechner in her report.  In the end it seems to me there was some substance in the matters addressed by Ms Malobabic with respect to your prospects of reoffending and as I said at the time, it seems to me when reviewing your history that your offending has always been linked with drug use, certainly in the recent two sentences.  Clearly one could never be satisfied that your criminal offending will cease in those circumstances until you have finally and irrevocably put any drug use well behind you. 

25In addition to the other matters to which I have referred, there is a letter from the Peninsula Health Consultants of 11 June 2014 authored by Mr Grant Watters who is said to be a director of that practice.  You were referred to him by your GP.  It was Mr Watters' conclusion that you are intelligent, capable and open middle-aged man who, when you find yourself in difficulty in relationships, is more likely to become overwhelmed, depressed and anxious and resort to the use of substances that significantly affect your mental capacity, perspective and decision making.  This seems to be borne out by reference to the materials I have read concerning your current and previous offending.

26I also have a report from a forensic clinician Ms Simone Oliver who works at Peninsula Health who noted you had attended all of your scheduled appointments, that was ten sessions, given your past problematic methamphetamine use.  It was her view that you appear to have a solid understanding with respect to relapse prevention with respect to drugs. 

27There is a CISP report dated 17 December 2013 which again indicates you have been taking steps to deal with your persistent drug problems.  There is also a letter from Peninsula Health dated 5 August that indicates you have been attending a men's program at Peninsula Health in respect of which you attended a number of group sessions relating to men's behaviour change, and you have demonstrated a preparedness to involve meaningfully in those groups.

28Finally, there are the three testimonials from your mother and your father and also from a former employer.  Each spoke highly of you and your commitment to turning your life around, and also of course to the fact that you were an excellent worker.  I take all those reports which were tendered by consent on your behalf into account.

29I should also point out that other subsequent matters were brought to my attention by the prosecution and I understand you have four pending matters relating to breaches of an intervention order which are before the Magistrates' Court and listed to be heard on 26 August.  Apparently one of those matters you intend pleading not guilty to and the other three you intend to plead guilty.

30As I say with respect to your chances of rehabilitation, it seems to me that they depend very significantly on your ability to once and for all rid yourself of any addiction to or use of any drugs whatsoever.  It is clear that your life has been bedevilled to date by the use of them.  Whether that be a consequence of finding yourself in a difficult personal situation or whether it is simply in the context of continued drug use by you, the reality is of course that your use of drugs has led you to a very significant and very violent criminal offending which is before me as part of your criminal record.  Clearly and most significantly your imprisonment on the charge of armed robbery is a matter of some significance with respect to sentencing.

31As well as those matters personal to you to which I have referred including the question of rehabilitation, I must also take into account such matters as deterrence and especially general deterrence which is always of significance in matters such as this involving, as it does, breaking into your victim's home in the early hours and threatening her in the way that you have.  I have no doubt it was a terrifying experience.

32There is also the question of specific deterrence which of course must remain of some significance given your prior offending.  I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending, which I find to be entirely dependent on your ability to stop using all drugs when you are released from prison.

33The submissions on your behalf indicate that you have shown a preparedness to change and a preparedness to engage in meaningful rehabilitation since being granted bail on 13 November 2013 and these matters are set out in some detail in the submissions made on your behalf and I accept that you have taken the steps there indicated as highlighted by your counsel.  These are all very positive signs and hopefully at the age of 44 you have finally decided to rid yourself of the drugs that have led you to the matters which are recorded in your criminal history.

34To that end, I think it appropriate to order a longer than normal parole period in order that you can, once you are released from prison, continue those steps that you have taken with respect to your rehabilitation. 

35I will make the disposal order sought by the prosecution and not opposed by counsel on your behalf with respect to the forfeiture of the knife.

36Yes, if you would stand, please, Mr Murphy.

37These are without doubt serious offences and in all the circumstances I have no alternative to the imposition of custodial sentences as was conceded by your counsel and you are convicted and sentenced as follows:

38On Charge 1, two years' imprisonment; on Charge 2, the first summary charge of assault, that is a sentence of nine months' imprisonment and on Charge 3, the second charge of having breached a family violence intervention order, a sentence of six months.

39I direct that six months of Charge 2 and one month of Charge 3 be served cumulatively upon the sentence imposed on Charge 1 and each other, and that results in a total effective sentence of two years and seven months. 

40I direct that you serve a minimum term of 18 months before becoming eligible by parole.

41As prescribed by the Sentencing Act I declare that the period of time you have already spent in custody is 40 days and I direct that such be noted in the records of the court.

42Pursuant to the previsions of s.6AAA had you not pleaded guilty there would have been a total effective sentence of four years with a non-parole period of two and three quarter years. 

43Yes, thank you, Mr Murphy.  You can be seated.

44Anything further?

45COUNSEL:  No, Your Honour.

46HIS HONOUR:  All right.  Thank you both very much.  Mr Murphy, if you could go with the officer, please. 

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