Director of Public Prosecutions v Murphy

[2022] VCC 2239

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
Not Restricted
Suitable for Publication

CR-22-00681

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY MURPHY

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2022 and 7 December 2022
DATE OF SENTENCE:	7 December 2022
CASE MAY BE CITED AS:	DPP v Murphy
MEDIUM NEUTRAL CITATION:	[2022] VCC 2239

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW

Catchwords:              Armed robbery; possession of a drug of dependence; dealing with property suspected of being the proceeds of crime; possessing a controlled weapon; going equipped to steal; behaving in an offensive manner in a police gaol; committing an indictable offence while on bail.

Legislation Cited:      Crimes Act 1958 (Vic) ss 75A, 91(1), 195; Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1); Control of Weapons Act 1990 (Vic) s 8(1); Corrections Regulations 2019 (Vic) s 15(2); Bail Act 1977 (Vic) s 30B.

Cases Cited:R v Verdins (2007) 16 VR 269.

Sentence:Total effective sentence of 21 months’ imprisonment with a non-parole period of 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Ms M. Deighton	Doogue + George

HER HONOUR:

1Ashley Murphy, you have pleaded guilty to an indictment containing:

(i)one charge of armed robbery;[1] and

(ii)one charge of the possession of a drug of dependence.[2]

[1]Crimes Act 1958 (Vic) s 75A (‘Crimes Act’).

[2]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1).

2You have also agreed to have uplifted and dealt with in this court, and pleaded guilty to, the following related summary offences:

(i)summary charge 3, as amended, dealing with property suspected of being the proceeds of crime;[3]

(ii)summary charge 4, as amended, possessing a controlled weapon;[4]

(iii)summary charge 6, going equipped to steal;[5]

(iv)summary charge 7, behaving in an offensive manner in a police gaol;[6] and

(v)summary charge 8, committing an indictable offence while on bail.[7]

[3]Crimes Act (n 1) s 195.

[4]Control of Weapons Act 1990 (Vic) s 8(1).

[5]Crimes Act (n 1) s 91(1).

[6]Corrections Regulations 2019 (Vic) s 15(2).

[7]Bail Act 1977 (Vic) s 30B.

3The maximum penalty for armed robbery is 25 years' imprisonment, and the maximum penalty applicable in the circumstances of your case to the charge of possession of a drug of dependence is one year imprisonment or 30 penalty units.

4The maximum penalty for summary charge 3 is two years' imprisonment, summary charge 4 one year imprisonment, summary charge 6 two years' imprisonment, summary charge 7 10 penalty units, and summary charge 8, committing an indictable offence while on bail, three months' imprisonment. 

5On your plea, the prosecution tendered a summary of prosecution opening that was marked as Exhibit A. It is attached to, and forms part of these reasons and I will refer to your offending just in summary here.

6

On 10 January 2021, just before 7:00 am, Darren Hogarth went to his workplace in Hoppers Crossing.  He was sent home because his wife was awaiting the results of a Covid test.  He started the journey home and waited for the 7:30 am bus on

Old Geelong Road.  He had his esky with him which had his lunch, tobacco, gardening shears, a whipper snipper cord and about $12 in gold coins in it. 

7You arrived at the bus stop riding a bicycle.  You spoke to Mr Hogarth, asked the time for the next bus and chatted for a few minutes on the subject of finding work.  Mr Hogarth offered you a cigarette.  In this context and without warning, you produced a knife and pointed it at Mr Hogarth's chest from a distance of about a foot.  You grabbed his esky.  Mr Hogarth also grabbed the esky, you said that if he did not let go, you would ‘shive’ him, that is to stab him (Charge 1).

8The complainant called his manager, Cain Williams, who arrived in a car with a colleague, Adam Charlton.  Mr Hogarth, Mr Williams and Mr Charlton drove along Old Geelong Road until they found you.  Mr Williams drove across your path; the bicycle you were riding ran into the side of the car.  Mr Williams and Mr Charlton then performed a citizen's arrest and restrained you.  Mr Charlton asked you where the knife was; you told him you threw it away; it then fell out of your pocket. 

9While Mr Williams called police, you made threats saying you would kill them and that you knew their faces.  I note that these statements are put for context only and do not form part of any charge that you are to be sentenced for.  The esky was empty; its contents were later found by police scattered on the side of the road. 

10

When police arrived and arrested you, they found in your backpack 159 unopened mail items which did not belong to you.  The letters, with the bicycle you were riding, forms the subject of summary charge 3, handling stolen goods.  The backpack also contained items used for theft, including a black glove and a torch

(summary charge 6), and a Stanley knife (summary charge 4), and a zip lock bag containing seven Xanax tablets (Charge 2).  I note that the Stanley knife appears to form part of the factual basis of both charges 6, going equipped to steal, and charge 4, possessing a controlled weapon. 

11You were taken to Werribee police station but were deemed unfit for interview.  While you were in the Werribee police cells, you took off your clothes and urinated in the cell (summary charge 7). 

12Police later found the bicycle you were riding had been stolen from an address in Truganina between 19 December 2021 and 4 January 2022 (summary charge 3).

13

At the time of the commission of these offences, you were on two sets of bail granted on 13 September 2021 for driving charges and bail granted on

15 December 2021 for charges of reckless conduct, driving at a dangerous speed, and related offences. 

14Turning now to your prior criminal history.  Your criminal history commences in the Children's Court in 2012, but your first adult appearance is for the offence of shop stealing in 2016.  In 2020, you were dealt with for a series of driving and dishonesty offences for which you were convicted and sentenced to a community correction order for 24 months.  The same year, you were sentenced to a second community correction order for the offences of trafficking a drug of dependence and committing an indictable offence while on bail.  You were also dealt with for breaching the first of these orders.

15On your plea, after your counsel submitted for a combination sentence, a community correction breach report dated 18 April 2022 was tendered by the prosecutor.  That sets out your further breach of the community correction order that was imposed after your first contravention.  I will return to this report later in these reasons.  You have breached earlier orders by non-compliance and by reoffending.  You have served one month in gaol prior to your remand on these matters. 

16Turning now to my assessment of the nature and gravity of your offending.  Parliament has set a maximum penalty of 25 years' imprisonment for the offence of armed robbery to reflect how seriously this offence must be regarded.  After speaking to Mr Hogarth for a time about ordinary things, you then chose to hold a knife to his chest at the distance of about a foot.  On the plea, your counsel sensibly acknowledged that your behaviour was confronting for Mr Hogarth and difficult and frightening for him. 

17I accept that your behaviour reflected the deranged and drug affected state you had put yourself into prior to committing the offence.  It was spontaneous and irrational offending.  As armed robberies go, this one was chaotic and unsophisticated, however, it was still effective.  You obtained property, you used a knife, the conduct afterwards, having been apprehended, was consistent with your state of self-induced and heavy intoxication having used cannabis, methamphetamine, GHB and Xanax some time prior to committing these offences.  You have stated that you consumed vast quantities of Xanax for about a month prior to these events which cannot mitigate your responsibility, but perhaps explains aspects of it. 

18Another feature that makes your offending more serious is the fact that you were on two sets of bail at the time. 

19All armed robberies are serious, but I find this one objectively sits in the lower end of the scale of armed robberies in all the circumstances by reference to its unplanned and chaotic nature. 

20I must consider the impact on Mr Hogarth of what you did.  Mr Hogarth waived his right to make a victim impact statement.  I infer, however, that he would have been shaken by your bizarre and aggressive behaviour towards him.  He was on his way home from work and had otherwise shown you courtesy.  He then found himself at the end of a knife.  Despite Mr Hogarth's robust response to these events, that is, his gathering of some support to apprehend you, I conclude that these events were nevertheless unpleasant for him and frightening.  I take Mr Hogarth's position into account in your sentence.

21Turning now to your personal circumstances.  You are now 26 years old.  You have four siblings, and you grew up together in the Hoppers Crossing and Werribee areas.  You had difficulties at home and school in your early childhood.  At school, these manifested in behavioural issues, and at 13 you were diagnosed with attention deficit hyperactivity disorder and Asperger's syndrome.  You were prescribed medication for the ADHD, but your mother discovered you were selling it at school and this regime ceased.

22

You were introduced to cannabis at 13 and at 15 tried methamphetamine and increased this to daily use by the age of 16.  You used alcohol heavily from

age 14.  Your attendance at school became impoverished, you did not complete assigned work, you would typically copy from the person next to you in class, you received no additional support or tutoring.  You were expelled and suspended on multiple occasions.  You completed Year 9, then worked in the fast-food industry between 16 and 20 years old. 

23

When you were 20, your partner fell pregnant which motivated you to commence but not complete a plumbing apprenticeship.  That relationship ended after

six years, and you have negotiated custody arrangements to keep contact with your daughter.  This contact is now subject to a Family Court order which permits you to have supervised visits with her. 

24

You have a second daughter from a subsequent relationship. The

Department of Families, Fairness and Housing became involved from the time of your youngest daughter's birth; drug use was the issue. 

25On your plea, it was argued that you are now motivated by wanting to establish a relationship with your youngest daughter who now lives in a regional town in Victoria.  To achieve this, you will need to undergo drug testing and be compliant with your medication. 

26You have now been on remand for a considerable period, and this is the longest time you have been clean since you were 13 years old. 

27Turning now to the matters in mitigation of your sentence; first, your pleas of guilty.  At any time, your pleas of guilty would earn you a substantial discount on your sentence, but at this time when the courts are still addressing the backlog caused by the pandemic, your pleas of guilty will be recognised with an additional and palpable reduction of your sentence. 

28The prosecutor conceded that this was a plea at the earliest opportunity.  An offer of resolution was made prior to the first committal mention of your case.  Your plea saves Mr Hogarth and the other witnesses from having to come to trial or to court at all and to give their evidence, and this is a matter of significance.  The plea does indicate your acceptance of responsibility for what you did. 

29I take into account your relative youth.  You are now 26 years old, and you are at the outer reaches of the category of youthful offender.  I will moderate this sentence to some degree based on your age and the fact that you are only 26 and the community still has a long-term stake in your rehabilitation. 

30Turning now to the psychological material in the plea.  You were first treated by the Orygen Youth Mental Health Service and for a time you were medicated and reported feeling better.  Sometime later, you ceased medication and began experiencing auditory hallucinations in the context of ongoing illicit substance abuse.  You had one admission to the Mercy Health Unit and received a diagnosis of ‘schizoaffective disorder bipolar type’. 

31You were released from hospital in September 2021 and transferred to the Prevention and Recovery Care Team for a short-term residential treatment term.  When you were discharged, you started smoking cannabis again almost immediately. 

32The record of your attendance in the Mercy Hospital was tendered.  The discharge summary refers to your aggressive and erratic behaviour, your torment by auditory hallucinations, your substance use disorder and your subsequent transfer into the community on a community treatment order. 

33

You are on anti-depressant medication while in custody. Your mental health has stabilised since you have stopped using illicit substances. The psychological opinion concludes that you have a complex intersection of ADHD,

Asperger's disorder and schizoaffective disorder. These problems are compounded by deficits in your education and your later reliance on illicit substances.

34In the opinion of the psychologist, Ms Bovenkerk, a person with your combination of psychological and psychiatric vulnerabilities has the potential for significant mood fluctuation which may be exacerbated by the volatile custody environment.  Ms Bovenkerk is of the opinion that a person with your pre-existing difficulties is also at higher risk of maladaptive coping strategies such as the use of alcohol and drugs. 

35It was argued in your case that Verdins limbs 5 and 6 were engaged in these circumstances,[8] and I do mitigate your sentence in this way by applying these principles. However, in relation to limb 6, it is also clear that the period of abstinence you have endured in custody has also given you some respite from the consequences of adding heavy substance use to your underlying psychiatric vulnerabilities, so I apply that principle with some restraint.

[8]R v Verdins (2007) 16 VR 269.

36Turning now to your prospects of rehabilitation.  A range of materials was tendered on your plea testifying to your prospects of rehabilitation.  You have submitted clean urine screens, studied TAFE courses, worked in custody, completed a parenting course, and impressed your supervisor in a work environment. You retain the support of your mother and as I have said, submitted that you are motivated by your desire for a relationship with your youngest daughter which you must earn through abstinence and responsible behaviour. 

37You have expressed a desire to return to your plumbing apprenticeship and to complete it. You have, however, when given the opportunity for rehabilitative structures in the past, failed to grapple with them effectively. You have served a short sentence of imprisonment as a result.  You returned to drug use immediately after mental health treatment.

38In the end, I find that your prospects of rehabilitation are somewhat guarded.

39I have considered the matters in the further submissions, and which were canvassed at paragraph 22 of the report of Ms Bovenkerk. I accept that these matters undermined your development and have had to some degree contributed to the constellation of factors, some of which I have already dealt with, which have made it more difficult for you to manage your emotional states and made you more susceptible to using illicit drugs to temper your internal states.

40I mitigate your sentence taking into account these problems continue to resonate through your adult life. I note the potential for these matters to increase the need for community protection.

41I am obliged to have regard to current sentencing practices, and I am aware of a range of sentences for armed robbery in particular. No case is exactly like yours, but I sentence you in this broad landscape. It is my obligation to do individual justice. 

42Turning now to the sentencing principles to be applied in your case. There is a powerful need for sentences to effect general deterrence in armed robbery. This sentence must make it well known that people who commit this offence will make themselves susceptible to very lengthy terms of imprisonment. 

43Given your history, there is also a need to specifically deter you from offending again. The community will best be protected from you by your continued rehabilitation, but I have also found that your prospects for rehabilitation are somewhat clouded based on your history. There is a role for this sentence to denounce your offending.  It is unacceptable to put people in fear as they go about their normal lives. You will also be justly punished for what you did.

44Your barrister submitted that the most appropriate sentence for you would involve the imposition of a community correction order after the term of imprisonment you are currently serving.  It was said that this was a sentencing structure that is most likely to facilitate your rehabilitation as it bestows on you some certainty about the timing of your release. 

45

It was submitted that your earlier failures to complete community correction orders should not deter me from making another such order giving the lengthy period of imprisonment that has broken the circuit of your previous pattern of

non-compliance with community correction orders and giving you more stability in your mental health.

46I have given these submissions careful consideration and have regard to the material before me about the breaches of community correction orders that you have previously committed. 

47I had you assessed for a community correction order but made it clear that I did not favour that disposition.  Since that time, I have read the community correction report, the mental health services report and weighed up the matters in favour of a community correction order or a disposition of a head sentence with a non-parole period. 

48You were found to be suitable for a community correction order, however, my calculus is a broader one than that undertaken by the Corrections assessor and involves the application of the sentencing principles in the Sentencing Act.[9]  In the end, I have concluded that a sentence involving a period on parole is the more appropriate one in your case. 

[9]Sentencing Act 1991 (Vic) (‘Sentencing Act’).

49This is the disposition now, Mr Murphy:

·

On Charge 1, armed robbery, you are convicted and sentenced to

21 months' imprisonment.

·On Charge 2, possessing a drug of dependence, you are convicted and sentenced to seven days' imprisonment.

·On the related summary charge, charge 3 of dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 14 days' imprisonment.

·On the related summary charge, charge 4 of possession of a controlled weapon without excuse, you are convicted and sentenced to seven days' imprisonment.

·On the related summary charge, charge 6 of going equipped to steal, you are convicted and sentenced to seven days' imprisonment.

·On the related summary charge, charge 7 of acting in a manner disruptive to a police gaol, you are convicted and discharged. 

·

On the related summary charge, charge 8 of committing an indictable offence while on bail, you are convicted and sentenced to

seven days' imprisonment. 

50I direct that all sentences of imprisonment are to be served concurrently. 

51Given your relative youth and the other factors I have already referred to, I will fix a non-parole period that involves a substantial gap between the head sentence and non-parole period, and I direct that you are to serve 12 months' imprisonment before becoming eligible for parole. 

52I declare pursuant to s 6AAA of the Sentencing Act that had you not pleaded guilty but been found guilty after trial, I would have imposed a sentence of three years' imprisonment with a non-parole period of two years. 

53

I declare pursuant to s 18 of the Sentencing Act, that you have already served

331 days prior to the imposition of this sentence to be reckoned as already served. 

54I make the order for disposal as sought. 

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