Director of Public Prosecutions v Murphy

[2024] VCC 584

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

AT MILDURA
CRIMINAL JURISDICTION

CR-22-02432

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEREMY MURPHY

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2024
DATE OF SENTENCE:	2 May 2024
CASE MAY BE CITED AS:	DPP v Murphy
MEDIUM NEUTRAL CITATION:	[2024] VCC 584

REASONS FOR SENTENCE
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Subject:   Aggravated home invasion
Catchwords:             Guilty plea – high utilitarian value – mid range offending –
Legislation Cited: Sentencing Act 1991 (Vic), s 5(2G) and s 10(AC).

Cases Cited:Hogarth v the Queen (2012) 37 VR 658; Bugmy v R (2013) 249 CLR 571; Marrah v The Queen [2014] VSCA 119; DPP (Vic) v O’Brien (2019) 288 A Crim R 1; DPP v Paul Milson [2019] VSC 55;

Carter (2018) 272 A Crim R 170; Wong v The Queen (2001) 207 CLR 584; Hafner v The Queen [2012] VSCA 190; Drew Grey v The King [2024] VSCA 75; Worboyes v The Queen [2021] VSCA 169

Sentence:                 Total effective sentence is 4 years’ imprisonment with a
  non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D O’Doherty	Office of Public Prosecutions
For the Accused	Ms L Papadinas	Rebecca Boreham Barristers & Solicitors

HIS HONOUR: 

1Jeremy Murphy, you have pleaded guilty to one charge of aggravated home invasion.

Circumstances of your offending

2The circumstances of your offending set out in the prosecution summary of facts. [1] They are agreed facts.

[1] Amended Summary of Prosecution Opening for Plea dated 9 February 2024 (Exhibit A)

3On 26 July 2022, around 9:25 PM, you arrived at a property at Hornsey Park, Mildura, in company with Harold Johnson, Alicia Khan and an unknown offender in a black Kia wagon driven by Romana O’Neill.

4While O’Neill remained in the car, the four of you got out, armed with weapons. You had a machete and a baseball bat. Johnson also had a machete, the unknown offender had a tomahawk and a pole and Khan also had a pole. You had a scarf like garment wrapped around the lower half of your face; the others were wearing hooded jumpers.

5Johnson, the unknown offender and you went to the front door of the home.

6You, with the unknown offender, kicked the door. Johnson was standing behind you. You injured your leg while you were kicking the door and ran back to the car.

7The unknown offender smashed the door with a tomahawk while one of the two occupants, Timothy Bourke, tried to hold the door closed from the inside.

8When the bottom panel was kicked in you stuck your head through and oddly said, “come on, brother – let us in”. [2]

[2] DPP V Alicia Khan [2023] VCC 1624, at [6], per Judge Moglia.

9Khan yelled get “Gen”, referring to your girlfriend, Genevieve Mengler, who had been at the house.

10When Bourke said she had left earlier, Khan accused him of lying.

11One of you swung a machete through the broken panel, missing Bourke’s leg.  He retreated into a bedroom where another occupant, Roy Braunack, was watching your break-in, caught on a CCTV camera, using his phone.

12Johnson and the unknown offender entered the house. You followed.

13One of you demanded Bourke and Braunack at come out of the bedroom. Someone hit the bedroom door; someone smashed the TV in the lounge.

14You all then left her house and got into the wagon which O’Neill drove away.

15By your guilty plea you admit you entered the home as a trespasser armed with a weapon, in company, intending to assault a person or persons and damage property, and knew or were reckless as to whether other persons were in the home.

Arrest and interview

16Johnson, Khan and you were identified from the CCTV film.

17Police arrested Khan and Johnson on 28 July 2022.

18On 3 August 2022, you went to Mildura hospital for treatment of an infection to the leg wound you sustained when you broke into the home.

19Two days later, on 5 August 2022, police arrested you.

20You admitted you went to the house to talk to your girlfriend who had stayed there after an argument with you the night before.

21You said, when you had been told someone had done “stuff” to her, while she was sleeping, you reacted the wrong way and went to the house to help her.

22You said you remembered calling out to her and knocking on the door but she wasn’t there. You said you remembered bleeding, but did could not remember how you cut you will leg.

23You were charged and remanded in custody.

24On 21 December 2022, at committal mention stage, you pleaded guilty to the aggravated home invasion charge.

Victim impact

25Neither Mr Bourke nor Mr Braunack has made a victim impact statement. No doubt, the incident would have been terrifying for them.

Criminal record

26You have admitted a criminal record.

27Relevantly, on 21 May 2020, you are sentenced to 16 months detention at a Youth Justice Centre for aggravated burglary, common law assault and intentionally damage property.

28In 2022, you served a sentence of three months imprisonment for burglary and driving offences.

Personal circumstances

29You are a  Barkindji man, born in May 1999 at Horsham. You were 23 years old when you offended. You are nearly 25 now.

30Your personal circumstances are set out in the report of Dr Nina Zimmerman[3], consultant psychiatrist who interviewed you on 2 April 2024 while you were remanded at Marngoneet prison.

[3] Report of Dr Nina Zimmermann (Exhibit 2)

31You have an older brother, two older sisters, two half-brothers and one half-sister.

32Your parents separated before you were born.

33You have had little contact with your father.

34You told Dr Zimmerman, your mother was violent.

35You also told her, when were about nine years old, a female babysitter sexually assaulted you.

36You said you enjoyed school as you were happier there than at home. After you completed year 12, you did farm and labouring work.

37You have two daughters, aged three and five years old. You met their mother when you were at Malmsbury Youth Justice Centre.

38Your medical records indicate you were prescribed an antidepressant at Malmsbury. At the time, you reported you had been hearing voices and were given antipsychotic medication.

39When you were released, in late 2020, you did well on youth justice parole. You had a girlfriend and were working.

40In 2022, when you were imprisoned, you again reported hearing voices. You were diagnosed with psychosis, secondary to drug use related to your past trauma, and treated with risperidone. [4]

[4] Antipsychotic medication.

41You told Dr Zimmerman, when you were released from prison, you went to live with a friend in Mildura. You said, after an argument with your then girlfriend, “Gen”, about her infidelity, you went to a friend’s house where Ms Khan told you she had cheated on you with someone who lived at the Hornsey Park address. You then planned with her and others to go to the house. You said you were worried your girlfriend was not safe.

42You told Dr Zimmerman, you have a better understanding of what happened and know how to cope now. You said the voices are now very faint and “the best that they’ve ever been”.

43In consequence of a childhood marred by an absent father, a violent mother, sexual abuse and intergenerational trauma, Dr Zimmerman believes you suffer from borderline personality disorder.

44In her opinion, your hallucinations could be caused by PTSD and borderline personality disorder, rather than any enduring psychotic illness.

45In prison, you have completed a positive parent program[5] and you are engaging in counselling,[6] which has assisted you to address trauma and improve coping strategies.

[5] Triple P Certificates (Exhibit 4).

[6] Report of Ms Nina Zimmermann (Exhibit 2).

46I was impressed by your presentation. You attended court when you had been given the alternative to appear by video link. It will have involved lengthy travel in a prison van and several days spent at the Mildura watchhouse. When asked why you chose the inconvenient option you said, convincingly, you wanted to accept the consequences of your actions in person.

47You said, when you are released from prison, your sister will have you to live with her at Horsham. You plan to get work with your previous employer, GrainCorp, and to find your own accommodation to work towards caring for your daughters.

48Family members wanted to support you at court, by an audiovisual link, but a mix-up in scheduling thwarted their connection.

49You also said, in prison, you have engaged in Koori programs to reconnect with your culture.

50I accept you are genuinely motivated to build a relationship with your children and, in order to do so, you aim to find stable work and accommodation.

Submissions

51In comprehensive written[7] and oral submissions, your counsel, Ms Papadinas, relied on the following factors in mitigation of penalty:

(a)   The utilitarian benefit of your guilty plea;

(b)   your childhood disadvantage;[8] and

(c)   your complex cognitive profile.

[7] Defence submissions dated 23 April 2024 (Exhibit 1).

[8] Relying on Bugmy v R (2013) 249 CLR 571 and Marrah v The Queen [2014] VSCA 119.

52She submitted, considering your relative youth and your opportunities for accommodation and employment when you are released from prison, your prospects of rehabilitation are not exhausted.

Prosecution submissions

53Mr O’Doherty, who appeared for the prosecution, submitted, because of the objective seriousness of your offending, a prison sentence with a non-parole period fixed is the only appropriate sentence.

Consideration

54The maximum penalty of 25 years’ imprisonment demonstrates the offence of aggravated home invasion is objectively very serious.

Objective criminality

55Mr Bourke and Mr Braunack were entitled to feel safe in their home.

56No doubt, both men were terrified when you confronted them.

57You arrived at their property, with four others, intending to break-in to the house believing your girlfriend, had gone there.

58You, with two others, smashed your way inside, where you damaged property and threatened the occupants.

59There was a degree of preplanning. You had covered your face to avoid being identified. Each of you was armed.

60No one, apart from you, was physically injured.

61I assess yours as a mid-range example of the crime.

62Deterrence, both general and specific, and denunciation of your conduct are important sentencing considerations.

63In Hogarth v the Queen,[9] the Court of Appeal said home invasion “is a particularly nasty form of criminal conduct”:

Typically, a home invasion involves multiple offenders entering a person’s home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders – acting in anger and often fuelled by alcohol – is itself a terrifying experience for the householder(s), irrespective of what may occur after entry.

[9] (2012) 37 VR 658 at [1].

64In DPP (Vic) v O’Brien,[10] the Court of Appeal said, in relation to home invasion, “Those considering such antisocial conduct must know that stern punishment will follow their apprehension”.

[10] (2019) 288 A Crim R 1 at [37].

65The law requires I impose a term of imprisonment with a non-parole period of three years, unless a special reason exists.[11] Your counsel did not advance any special reason.

[11] Sentencing Act 1991 (Vic), ss 5(2G) and 10(AC).

66There are mitigating circumstances which must moderate the sentence I impose.

67Your guilty plea has high utilitarian value because it has spared your victims the stress of a trial[12] and because, when it was made, it alleviated the pandemic related strain on the administration of criminal justice.[13]

[12] Carter (2018) 272 A Crim R 170, [75].

[13] Worboyes v The Queen [2021] VSCA 169.

68I accept your disadvantage, while not an excuse, contributed to your offending and, to an extent, explains it.

69I accept you are genuinely remorseful and, with family support and a desire to have a meaningful relationship with your daughters, you are motivated to not reoffend.

70You have made impressive steps in custody to towards reform.

71I am confident you can rehabilitate yourself.

72As the Court of Appeal restated in DPP v Paul Milson [2019] VSC 55, “ … it is easy to forget that the protection of the community ultimately is best served by the rehabilitation of the offender.”

73Judge Moglia sentenced Khan and Johnson. I have read his Honour’s sentencing reasons.

74For her part, Khan, who pleaded guilty to an aggravated burglary and also drug trafficking, was sentenced to 133 days imprisonment with a CCO.

75For his part in the home invasion, Johnson was sentenced to four years imprisonment with a three-year minimum term.

76The parity principle requires that those who commit the same or similar offences should be treated equally, except where differences in the respective offenders’ offending and personal circumstances justify the imposition of different sentences. [14]

[14] Wong v The Queen (2001) 207 CLR 584, [65]; Hafner v The Queen [2012] VSCA 190, [17]; Drew Grey v The King [2024] VSCA 75, [61] – [62]

77In my view, there is no material basis to differentiate between the sentence imposed on Johnson and the sentence I should impose on you.

Conclusion

78By the sentence I impose, I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. As well, I must look to your rehabilitation.

79I must also impose the least severe sentence necessary to achieve the purposes of sentencing.

80Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of aggravated home invasion, you are sentenced to 4 years imprisonment.

81I fix a minimum term of 3 years before you are eligible for parole release.

82I declare you have already served 636 days of your sentence by presentence detention.

83While there is some artificiality in the process, doing the best I can, I declare, but for your guilty plea, I would have sentenced you, six years imprisonment and fixed a minimum non-parole period of four years and six months.

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