Director of Public Prosecutions v Murphy

[2012] VCC 1366

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-00893

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN MURPHY

---

JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2012
DATE OF SENTENCE:	12 September 2012
CASE MAY BE CITED AS:	DPP v. Murphy
MEDIUM NEUTRAL CITATION:	[2019] VCC 1366

REASONS FOR SENTENCE

---

Catchwords: Sentence – recklessly causing serious injury – theft – guilty plea – victim trying to apprehend offender – shopstealing – victim struck with bottle offender had stolen – not typical “glassing” case – young offender – history of childhood behavioural difficulties – mild acquired brain injury – drug and alcohol abuse – depression – risk of deportation

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms L. Featonby	OPP
For the Accused	Mr J. Miller	Victoria Legal Aid

HER HONOUR:

1       Six months ago on 13 March this year, Nathan Murphy, you walked into the Woolworths Liquor outlet at Werribee Plaza and walked out with four bottles of spirits without paying for them.  A Woolworths employee tried to stop you but you ran out to the car park.  By then you had been joined by a co-offender who pushed over that determined staff member who was trying to stop you.

2       Jeremiah Roper, an off duty policeman was in the car park and seeing what was happening ran after you.  He called out "I'm a police officer, you're under arrest."  You did not stop, but he gained on you and as he reached out to grab you, you turned and swung at him with your raised right arm.  You had two one litre bottles of spirits in your right hand and they smashed into his face, smashing on impact.  He fell to the ground striking his head on the concrete as he fell.  You and your co-offender left him there and ran off, making good your temporary escape.

3       Jeremiah Roper suffered very serious injuries to his face.  He suffered fractures to his right cheekbone, in and around his right eye socket, and to the sinus walls.  His face was so badly swollen and bruised that he had to wait for 10 days for the swelling to reduce before he could undergo the necessary surgery to repair the broken bones.  Three plates had to be inserted to repair the fractures.

4       If one can describe the consequences or the absence of consequences of such a blow as fortunate, a CT scan confirmed that there was no internal bleeding or brain injury, and although the bottle smashed on impact his face was not gashed and therefore not scarred.  That is not to diminish the seriousness of the injuries that he suffered.

5       You were identified from closed circuit TV and arrested two days later.  When questioned you admitted stealing the bottles and to striking Mr Roper with the bottles as he tried to stop you running away.  You acknowledged that you had heard him calling out to stop and heard him say that he was a police officer.

6       Consistently with the account that I have already recounted, when questioned you said to the police that you turned around as he tried to grab you and that you hit him with the bottles to stop getting caught.  You said you did not deliberately hit him, that you hit him with the bottles accidentally or because you were rushing.

7       Consistently with the eye witness accounts and your admissions you have pleaded guilty to one charge of recklessly cause serious injury to Jeremiah Roper and one of theft of four bottles of spirits from the Woolworths store.  You pleaded guilty at the first available opportunity.  That means that this matter has been able to be dealt with and brought to finality within six months of the occurrence of the offence, which can only be done by an immediate acceptance of responsibility, a plea of guilty and consent to short service of documents so as to get the matter before the court finally.

8       The weight therefore to be given to your plea of guilty is considerable.  It has utilitarian weight.  It has not only saved the time and cost of trial, it has spared Mr Roper the prospect of having to give evidence, and the prospect of having to be challenged on the truthfulness or accuracy of what he said, and spared his wife the prospect of having to face giving evidence and to be challenged on the truthfulness and accuracy of what she saw.  It spared each of them the ordeal of having to relive the events and of the prospect of build-up to that as a committal and a trial approaches.

9       I accept also in the circumstances that it is an acceptance of responsibility by you for your conduct and the consequences of it from the outset, and therefore is relevant also to assessment that you are remorseful for your conduct.

10      In his victim impact statement Mr Roper described the various ways in which this has affected him physically and emotionally.  His wife, Ranee, who was with him in the car park, has also made a victim impact statement.  She too recounts the effect of Mr Roper, but also the effect on her and her perception of the way it has affected her husband.  What each of them say is a very telling reminder or bringing home of the reality of the long term and all pervasive consequences of a single, impulsive and stupid act, and of the disproportionate harm that was caused by an attempt to avoid apprehension for the mindless theft of goods of relatively minor value.

11      You should, and I accept you do, feel a real sense of shame about the consequences to Mr Roper and to Mrs Roper.  What they say explains clearly why denunciation, deterrence and punishment are such important sentencing considerations in a case such as this.  Mr Roper was minding his own business, just loading his shopping into the car, when he reacted in a public spirited way in trying to stop you running away with stolen goods.  He promised his wife that he would not act in that way if he were off duty, if they were out together, or he was on duty but without back-up.  But clearly his instinct or his understanding that a police officer is never entirely off duty led him to react spontaneously to try and stop you as he did.

12      The risk of acting in that way has been graphically brought home to him and to his wife.  It has been a source of guilt and frustration for them that he was injured in these circumstances.  Their descriptions in their victim impact statements of the extent to which Mr Roper has been disabled by the injuries to his face before and after surgery is detailed and vivid.  Their ability to describe their feelings, the effects on the little things that a carefree, loving couple had taken for granted until this injury and the consequent pain and resultant restrictions on their daily activities of life is quite remarkable.  It is more so because their accounts are quite objective.  They are not self pitying.

13      They describe the longer term consequences for Mr Roper, the pain, the impact on his concentration, the slowness of his recovery, the fear that his face may never be the same as it was, the fear that there will always be some weakness, some pain, some numbness or tingling in his face, the fear that his concentration will continue to be impaired, the fear that he may never be able to return to full duties as a policeman and pursue his chosen career, the inability to enjoy the exercise and leisure pursuits that he, and he and his wife together had enjoyed is ever present.  It is clear that six months after this their lives have not returned to what they were before this day, and it will be some time before they will get back or close to back to where they were.

14      He detailed early on his fear that he would suffer at work and suffer significant financial loss from loss of wages and medical expenses.  It is fortunate that his medical expenses and his loss of earnings have been covered by his employer.  Mrs Roper has not been so fortunate.  What she describes are the feelings for her but the consequences to her in terms of strain at work, lack of understanding of her workmates and of her superiors at work, and the lack of financial compensation how the effect on what you might call secondary victims and shows graphically how the consequences spread out well beyond the individual who is struck at the time.

15      I am detailing this not only because it is important to explain why these considerations of general deterrence, denunciation and just punishment are important, but also because it brings home in a very personal way the consequences to these two individuals rather than dealing with it in the abstract. 

16      Having said that it seems very clear to me from watching you during the hearing of the plea itself, and again today as I have recounted this, that you are aware of the impact of your behaviour on them.  I accept that you were in general terms aware of it, but that you have been significantly affected and distressed by it having been brought home to you by the reading of their victim impact statements just how much harm you have caused to these people.  And it seems to me that your demeanour in court last time and again today shows a genuine remorse for them and regret for the impact of that moment of impulsive madness for the long-term impact for them.  It is a pity that it took that to bring it home to you, but I accept that it has.

17      You, at the age of 21 are a poorly educated young man with a troubled history and a poor prognosis.  Your parents are New Zealanders.  Your father died when you were five, and at seven your mother moved to Australia with you, your siblings and your step siblings.  You have lived here ever since.  Your schooling was disrupted from the start. When a young primary school student you were diagnosed with Attention Deficit Hyperactivity Disorder, and you recount a history of angry acting out starting, it would seem, from about the time of your father's death.

18      The psychologist, Pamela Matthews, who assessed you for the purpose of this hearing, noted that the history that you gave her was consistent with conduct disorder or possibly unresolved grief following your father's death.  Whatever the diagnosis, the effect of your behaviour meant that you were expelled from a number of mainstream schools both at primary and secondary level.

19      Eventually you went to a school called "Create", a school which has a structured program designed to assist troubled teenagers as you by then were.  Whilst there you participated in some anger management programs.  You gained some skills and you were assisted in some work experience and short term employment. 

20      From childhood you had been prescribed Ritalin as a result of the diagnosis of ADHD.  By the age of 13 you had begun to abuse marijuana and alcohol.  And by 15 you were consuming copious and clearly dangerous quantities of both.  You reported to Ms Matthews that by the age of 15 you were smoking five to six grams of marijuana a day, and drinking two to three bottles of spirits.  Some time after that and well before you came before me for this offending you had added amphetamines to that regular mix.  Not surprisingly as a result of the combination of those factors your employment history has been desultory, and by 17 you had begun to come to the attention of the police and the courts.

21      You have also sustained a number of blows to your head from a car accident, falling from a pushbike when hit by a car when you were not wearing a helmet, and from a serious assault.

22      In 2011 a neuropsychological assessment of you was performed by Dr Evans.  She assessed your premorbid intellectual functioning as low average at best.  She said:

"On testing with the exception of visual, special and perceptual abilities, his overall cognitive performance was within borderline ranges.  Testing would suggest that developmental premorbid specific language impairment with some cognitive deficits post head injury in the order of 10 or so IQ points.”

23      When she assessed you, Ms Matthews found that you remain in the adolescent stage of development.  She said you vacillate between being a child and an adult, and pointed out that adolescence is not necessarily chronologically directly related to age.  The psychiatrist, Dr Cidoni, who assessed you in November 2011 considered that you displayed borderline personality features.  When she assessed you in 2012, Ms Matthews said given your state of development she would not at this stage diagnose a personality disorder although a diagnosis of borderline personality features may become clearer in the future.

24      As I discussed with Mr Miller in the course of the plea, it seems that given your age, only 21, that it would seem you are too young for a formal diagnosis of borderline personality disorder to be able to be made at this stage, and therefore I accept Ms Matthews' assessment rather than Dr Sidoni's on that.

25      

The likely effect of the developmental, and specific language impairment that

Dr Evans had diagnosed means, according to Ms Matthew, that you are predisposed to externalised means of expressing internal emotional states such as fear, anger, and anxiety, because words and verbal concepts are not readily available to you.  That is compounded by the mild acquired brain injury which on top of the specific cognitive limitations identified by Dr Evans means that there is likely to be a further increased emotional deregulation.

26      On top of this, of course, one has to add your long history of substance abuse.  Alcohol, amphetamines and cannabis are all disinhibitors of behaviour.

27      Ms Matthews concluded this: 

"Operational in Mr Murphy's offending in the writer's view is a mixture of (a) substance use, (b) developmental and newly acquired cognitive impairment, and (c) developmental factors in relation to dysfunctional externalised behavioural coping skills exacerbated by recently acquired brain injury.  It is these interacting issues in the writer's view which have led to the behaviour before the court."

28      From a rehabilitative perspective she said: 

"Mr Murphy needs to be living in a drug and alcohol free environment.  He requires assistance with gaining employment or trade education that will lead to skilled employment, and he requires continued assistance with substance use and violence intervention.  Mr Murphy is likely to learn slower than his same age peers with the need for reliance on support services in the aforementioned areas to be longer.  In regard to the possibility of a custodial environment the writer would be concerned in regard to Mr Murphy's exposure to inappropriate male role models, and in regard to his deficits in managing his environment through internalised language, these deficits making him an easy target within an adult custodial environment."

29      

Tempering this bleak picture that Ms Matthews paints is the evidence of

the progress that you made when you were on CISP bail between August

and September of 2011.  Following a comprehensive drug and alcohol assessment by Odyssey House you successfully completed a detoxification program and reduced your alcohol intake significantly.  It would seem you stopped your drug intake entirely for a time.

30      You were assisted with finding more secure and suitable housing than the boarding house that you had been living in, and you were assisted to find employment.  The neuropsychological and psychiatric assessments I have already referred to were conducted by Dr Evans and Dr Cidoni at that time, and steps were taken to address the matters raised in those reports. 

31      Dr Cidoni, amongst other things had diagnosed you as suffering from depression, and having had suffered from it for some time, and you were started on anti-depressant medication.  He recommended, and steps were taken to refer you to a psychologist under a GP better mental health plan to assist you in building coping skills and managing your own impulsivity.  Unfortunately you did not engage with that at that time.

32      Although you clearly benefited from the highly structured supervision that you were under during CISP bail, and the efforts that were made through one agency to address the multiplicity of underlying problems, by March 2012 things had started to unravel badly for you.  Although you had moved back to live with your brother and some family members you had been exposed to drugs and started using drugs again.  You had lost your employment and it was against that background that this offending occurred.

33      Your last court appearance before this one in February 2012 had resulted in you being placed on a Community Corrections Order.  That was following the CISP bail to which I have referred.  That Community Corrections Order was imposed in part as a re-sentencing following a breach of an earlier Community Based Order and in part for new offending.  Your compliance with the Community Corrections Orders imposed in February of 2012 was poor between the time they were imposed and the time of the commission of these offences, and this offending, of course, also breaches it.  Breach proceedings for that are pending, and there are other offences also pending in the Magistrates' Court.  So this does not bring to an end the need to deal with the charges relating to the offences that you committed during that period although this reflects the most serious of the offending during that time.

34      It is clear that this history that I have identified indicates that considerations of specific deterrence as well as general deterrence also must be given weight in sentencing you.

35      Although your criminal history is relatively minor, and surprisingly so, given the history that I have recounted, relevantly for these purposes you have convictions for shop stealing and other dishonesty offences in the past, and also a conviction for threat to inflict serious injury and common assault occurring in the course of arrest.  That reinforces what I have already said about the need to reflect specific deterrence in the sentence.

36      I accept that your mild, acquired brain injury, and the pre-existing cognitive deficits that have been identified mean that the weight to be given of your moral culpability and to deterrence, both general and specific, must be moderated to some extent, although balanced against that it is clear that your impairment by drugs is not a mitigating feature, given your knowledge of the effect of drugs on you.

37      I accept also that your youth and the cognitive deficits and acquired brain injury will make a vulnerable prisoner, and that given your age, over 21, I have no option but to place you in an adult custodial environment.  I also consider having regard to the matters that have been put before me that the sentence that I impose should be structured to give you the opportunity to benefit from parole supervision upon release.

38      I also accept that imprisonment may be more onerous for you by reason of this longstanding depression that was finally diagnosed by Dr Cidoni, and I make that finding even though I accept that you will have a better prospect of remaining free of illicit drugs and alcohol, and being appropriately medicated for the depression whilst you are in custody. But nonetheless, in my view the sentence should be moderated by reason of the likely compounding effect of imprisonment on the depression.

39      I also accept as a matter going to the onerousness of imprisonment that you may face a prospect of deportation to a country that you have had no connection with since the age of seven.  That cannot enhance your prospects for developing a more hopeful attitude to your future.

40      Your counsel, Mr Miller, acknowledged from the start that no sentence other than one of imprisonment was open, having regard to the seriousness of the charge of recklessly cause serious injury, the closeness in time of this offence to the release on the community corrections order, and the combination of events that had again send your life spiralling downhill after the supervision of the CISP bail was over.

41      Yours is a very sad case. It is very sad to see a young man whose early behavioural difficulties were unable to be properly addressed, and whose decline into substance abuse, depression, offending and sense of hopelessness has a terrible sense of inevitability about it, or at least a sense of not yet having been able to be arrested.

42      If, as Ms Matthews says, you can live in a drug and alcohol free environment, learn some employment skills, and receive assistance adapted to your needs, it is clear your prospects of not re-offending will be enhanced and your hope for a better and more useful life will have some real meat to it.

43      I should also say that this is not a typical glassing case.  This is a spontaneous act occurring in the course of an attempt to ward off apprehension using what was in your hand at the time.  It was not a deliberate attempt to choose a bottle as a weapon.  It was not a deliberate attempt to glass somebody with a bottle broken for that purpose, or to punch somebody with a fist clenched around the glass in the knowledge that the glass would likely break.  And it did not occur in the course of a drunken or aggressive altercation.  It is properly to be regarded as a single, spontaneous act in an attempt to ward of apprehension, by somebody who already was lacking in resources for dealing with things, and who had the sad, entrenched habit of acting out in violence.

44      Little guidance, therefore, in my view can be obtained from sentences in glassing cases, as I have characterised them.  It is also clear that it is common ground that the sentence for the theft of the bottles is a sentence that must be fixed by reference to the range of sentences available in the Magistrates' Court for theft from shops, that is two years, rather than the 10 year maximum available for theft in this court.

45      Having been aware of the matters in the reports to which I have referred, and the matters generally affecting your background and circumstances, as well as the matters in the victim impact statements and the depositions, the prosecution submitted that a sentencing range of between two and a half and three and a half years' imprisonment with a non-parole period of 12 to 18 months was the appropriate sentence.  The defence did not take issue with that in terms of the appropriate sentencing range, and I agree that that is indeed a sensible assessment of the appropriate sentencing range having regard to current sentencing practices.

46      Could you now please stand, Mr Murphy? 

47      On the two charges to which you have pleaded guilty you are convicted.  On Charge 1, the charge of theft you are sentenced to be imprisoned for a period of three months.  I direct that one month of that be served cumulatively on Charge 2 which is the base sentence.  On Charge 2, of recklessly cause serious injury you are sentenced to be imprisoned for a period of two years and eight months.  That makes a total, effective sentence of two years and nine months, and I direct that you serve a period of one year and three months before being eligible for parole.

48      I have some further orders to make.  You can be seated again whilst I make those.

49 You spent seven days in pre-sentence detention and I direct that that be counted and reckoned as a part of the sentence already served. Pursuant to s.6AAA of the Sentencing Act I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of five years and six months, and fixed a non-parole period of three years.

50      It has now been confirmed that no forensic sample has been taken from you in the past, and I therefore make the order for the taking of a forensic sample by way of buccal sample; that is a mouth swab.  I must warn you, Mr Murphy, that if you do not co-operate with the taking of that sample by rubbing the swab stick on the inside of your mouth until a sufficient sample has been obtained, then the police are authorised to use reasonable force and will most likely use the more invasive means of obtaining that sample, namely the taking of a blood sample.  Do you understand that?

51      I have also been asked to make a compensation order to Woolworths in respect to the cost of the bottles of alcohol and I propose to make that too.

52      Any further ancillary orders?

53      COUNSEL:  No, Your Honour.

54      HER HONOUR:  Do the orders I pronounced reflect what I said I intended to do?

55      COUNSEL:  Yes, Your Honour.

56      HER HONOUR:  Is my arithmetic correct?

57      COUNSEL:  Yes.

58      HER HONOUR:  All right, thank you.

59      Mr Murphy, I hope that when the other charges that you are facing are dealt with in the Magistrates' Court that this will be an opportunity for you to be able to draw a line and that you will be able to take advantage of the services and facilities that will be available to you in prison, and that you will try and remain drug and alcohol free whilst in prison, that you will do your best to get parole and to work with the supervision offered to you on parole, and that you will have a better future available for you upon your release.

60      Can you please remove Mr Murphy?

_  _  _