Director of Public Prosecutions v Murphy
[2021] VCC 1853
•16 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01289
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LOUISE MURPHY |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 October 2021 |
DATE OF SENTENCE: | 16 November 2021 |
CASE MAY BE CITED AS: | DPP v Murphy |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1853 |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Aggravated burglary; common assault
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Brown v R [2020] VSCA 212; Worboyes v R [2021] VSCA 169
Sentence:Community Corrections Order - 2 years duration (175 hours community work & treatment conditions)
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Webster | Office of Public Prosecutions |
For the Offender | Mr D. Rofe | Chester Metcalfe & Co |
HER HONOUR:
1 Louise Murphy, you have pleaded guilty on indictment to charges of aggravated burglary and common law assault, offending which occurred on 2 August 2019.
2 In sentencing you for your crimes I am obliged to have regard to the maximum penalties for the offences which you have committed. The maximum penalty for aggravated burglary is 25 years imprisonment. The maximum penalty for common law assault is five years imprisonment. These maximum penalties reflect the seriousness with which Parliament regards your offences.
3 The circumstances of your offending were set out in the document entitled 'Summary of Prosecution Opening for Plea' dated 3 June 2021. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence. I have had recourse to the full document.
4 In terms of background, you and Anna Anagnostopoulos each had children attending the Reservoir Primary School. That school was directly opposite
Ms Anagnostopoulos's home.
5 Your child is Margot Tillery[1]. Ms Anagnostopoulos had a son, Dale Cole[2] and a daughter, Abby[3].
[1]A pseudonym.
[2]A pseudonym.
[3]A pseudonym.
6 On the evening of 1 August 2019 your daughter, Margot, disclosed that she had been bullied at school by Dale Cole.
The offending
7 The next day you attended at Ms Anagnostopoulos's premises with your cousin, Yennora Kennech, knocking on a number of doors before locating the correct address.
8 When you did knock on Ms Anagnostopoulos's door, she was at home with her two children. She opened the door to you and Ms Kennech, and you asked her if she was Dale's mother. When she replied in the affirmative, you started to move towards the front door while saying that you were there "about your son, about what he does to my daughter…".
9 Ms Anagnostopoulos responded "If you've got a problem with my son, talk to the school principal or contact the police yourself. Don't come to my house". She also told you that she was unwell. You refused to leave and told Ms Anagnostopoulos that you wanted to talk now and that she looked fine.
10 You argued. Ms Anagnostopoulos pointed her finger at you. You pushed her with both hands to the top of the chest, forming part of the basis of charge 2, common assault. You then grabbed her by the hair and punched her approximately six times to the head, both events also forming part of charge 2, common assault. Ms Anagnostopoulos felt dizzy and fell to the ground. She got up and went inside her home, closing the external security door. You remained outside the home.
11 Rather than that being the end of the matter, as Ms Anagnostopoulos went to close the internal wooden front door, you opened the screen door and kicked open the wooden door. You then entered the home, forming the basis for charge 1, aggravated burglary - which is particularised as entering as a trespasser with an intent to commit an offence involving an assault and with knowledge as to the presence of a person.
12 Once inside the premises, you grabbed Ms Anagnostopoulos by the hair and punched her to the back of head, also forming part of charge 2, common assault.
13 Ms Anagnostopoulos fell to the ground. She was crying and yelling for you to get out of her home. Whilst on the ground you spat on her before leaving. This also forms part of charge 2, common assault.
14 Your entry to the home was witnessed by several bystanders and police were called.
15 Ms Anagnostopoulos attended at hospital and was found to have suffered a superficial head injury, soft tissue bruising to the right thumb and had general soreness to her neck and back. Observationally, given the circumstances of your assault upon her, it is certainly more by good fortune than by good management that her injuries weren't in fact more serious.
16 You were arrested by police at your own home on 4 August 2019. When interviewed by them you essentially denied the offending. You did admit to attending at the premises.
Gravity of the offending
17 This is obviously serious offending.
18 Whilst no victim impact statement has been filed, your offending has taken place at the victim's own home, a place where she is entitled to feel safe and secure. You had attended unannounced and in an aggressive manner. In addition, her two children were at home and exposed to your aggression and violence, which took place after you had been asked to leave.
19 I do accept that the charge of aggravated burglary is towards the lower end of the scale for an offence of its type and that your relevant intention was probably formed on the spur of the moment.
20 However, your assault on Ms Anagnostopoulos was somewhat protracted, your spitting gratuitous. You were physically advantaged and had multiple opportunities to walk away. Despite the significantly lower maximum penalty, in many ways the common law assault is the more serious of your offending.
21 I understand your behaviour was prompted by your belief that your daughter had been subjected to bullying by Ms Anagnostopoulos's son and that you had found your approach to the school for assistance had been rebuffed. Whilst this provides some context for your decision-making on 2 August of 2019, it in no way excuses it. Obviously, you had numerous options of how to deal with your concerns for your daughter that did not lead to a resort to violence.
22 Your behaviour was quite frankly outrageous and appalling and you should be both ashamed and embarrassed.
Prior criminal history
23 Unfortunately, you have a relevant criminal history which is concerning.
24 On 27 March 2009, you appeared at the Heidelberg Children's Court in relation to charges of recklessly cause injury, intentionally destroy property, assault with a weapon, affray, two charges of unlawful assault, use indecent language in a public place and three charges of failing to answer bail. You were placed on a bond to be of good behaviour for a period of 12 months.
25 There is then a gap of some four years. On 18 February 2013, you appeared in the Melbourne County Court in relation to charges of aggravated burglary, intentionally cause injury and criminal damage. You were convicted and placed on a community corrections order for a period of four years, during which you were to perform 200 hours of unpaid community work to be supervised by the office of corrections and to undergo assessment and treatment for drug use and abuse for your mental health and to undergo offence specific programs.
26 On 24 March 2014 you appeared at the Heidelberg Magistrate's Court in relation to charges of intentionally cause injury, two charges of unlawful assault and one charge of recklessly cause injury. You were convicted and placed on a community corrections order for a period of 12 months with treatment conditions.
27 Then on 3 August 2015, you appeared at the Heidelberg Magistrate's Court for contravening the community corrections order that had been imposed upon you on 24 March 2014. You were convicted and placed on a Community Corrections Order for a period of nine months. On the same day you were dealt with for allegations of further offending, which largely included offences of dishonesty. For that offending you were convicted and placed on a Community Corrections Order for a period of 12 months.
28 There was then a period of some four years before you committed the offending the subject of the indictment.
29 Whilst not to be punished for your criminal offending a second time is relevant to the weight that should attach to specific deterrence, that is, putting you off further offending, denunciation and indeed, protecting the community from you. It is also relevant to an assessment as to your prospects for rehabilitation. At first blush you have a history of violence and have not fully responded to the opportunities given to you to be supervised in the community and to rehabilitate. The need to deter you from further offending would appear obvious.
Personal circumstances
30 I turn now to your personal circumstances.
31 You are now aged 33 years.
32 You were born and raised in commission housing throughout Kew, Hawthorn, Richmond, Laidlaw and Collingwood. You never met your biological father. You were told in your teenage years that your father did not want your mother's pregnancy to proceed and indeed, offered her money to terminate the pregnancy.
33 You were raised by your mother, who was Samoan and an Irish stepfather, who you believed was your biological father until you were around 15 years of age.
34 Your step-father worked as a cleaner and your mother worked in a factory. Their employment took them away from the family home for long hours. Your stepfather had three children to an earlier relationship, who did not reside with you. He and your mother had four children from their union. You say that you never felt part of that family.
35 When you were aged 12 years your mother and stepfather separated. At present your mother lives in Heidelberg and you are not in contact. You do maintain contact with your stepfather who lives in Ascot Vale.
36 You left home at the age of 15 years, sleeping on the streets for approximately nine months. You say that you fell in with the wrong crowd. You formed a relationship with an older male, a family friend called Sus, at the age of 16 years. You describe him as physically abusive and controlling.
37 To your credit, you did manage to complete a Year 10 education, leaving your school part-way through Year 11.
38 At the age of 18 years you met JJ and formed a relationship with him. You have two daughters and a son from this relationship.
39 Child Protection Services were involved with your family in 2008 and the children were removed from JJ's parents' care and placed with your mother.
40 You began drinking alcohol at the age of 15 years and were drinking heavily from the birth of your first daughter. After your children were removed from your care you were drinking a slab of alcohol daily. You were also using cannabis, cocaine, ecstasy and amphetamine since the age of about 15 years.
41 Without going into details, given it was available to me on the materials tendered, you suffered a significant violent event at the hands of JJ in 2014 and were subsequently placed in a psychiatric ward at the Austin Hospital for about three months. I understand that JJ was deported to New Zealand sometime after that event.
42 It is submitted on your behalf that the Bugmy principles have application, that is, the effects of social disadvantage and trauma during formative years do not diminish with time, notwithstanding any criminal history.
43 I do not see these principles as having application but do accept that your feeling of displacement within your own family and exposure to domestic violence in your early relationships must have had their impact. I will return to this.
44 In November of 2015 your children were returned to you care. They are now aged 13, 12 and 11 years.
45 The return of your children corresponds to the cessation of your criminal offending until 2 August 2019.
46 You worked in a café in Sunshine for about six months in 2015 and completed a security course in 2016. You did volunteer work for an opportunity shop and a community centre in 2018.
47 I have already made some comment on your prospects for rehabilitation based solely on your criminal history. However, there are other relevant facts to the assessment that needs to be undertaken.
48 Firstly, you've attended Bridgehaven for rehabilitation within the last 12 to
18 months.
49 There has been no further offending since these events in August of 2019, a period of over two years. I note also the four year gap in your offending prior to August 2019. This points to there being a set of circumstances leading to your inappropriate response on that day.
Psychological assessments
50 Tendered on your behalf were two psychological assessment reports, authored by Ms Gina Cidoni, one dated 26 June 2021 and an addendum report dated 25 October 2021.
51 In her first report, Ms Cidoni advised that testing indicated severe post traumatic stress disorder, major depression and transient psychosis. You have a paranoid personality disorder with a pronounced distrust which typifies your behaviours and relationships and distorts your sense of others and their circumstances. You have difficulty regulating your emotions. Much of this would appear to have its foundation in the abusive relationships you endured from a young age with intimate partners in the context of not feeling like you belonged to your family of origin.
52 Ms Cidoni was of the opinion that your thought processes and judgment were still very much compromised and that you lack adequate coping skills. She assessed your risk of further offending as being medium on the basis of your prior history, history of alcohol abuse, adverse psychological circumstances, personality and lack of supports, as well as emotional and personal factors.
53 Ms Cidoni also had major concerns about your safety in prison, as a result of what she described as your fragile mental health and paranoid personality disposition and reactivity.
54 I accept that this report does provide some explanation for your offending.
55 You have sound intellectual capacity. Hopefully, this is something that will stand you in good stead.
56 Ms Cidoni was also called to give evidence at your plea hearing on
26 October 2021. In her evidence she detailed a connection to your offending from your mental health symptoms and your established post traumatic stress disorder and paranoid personality disorder borne from the traumatic events you have experienced. Ms Cidoni saw your post-traumatic stress disorder as quite severe, such that you would probably qualify for a disability support pension. She described you as hypervigilant and overly protective, with intense emotional reactions, indeed overreaction, to normal events. Your capacity to make sense of experiences and think about your actions is impaired. In her opinion you had a maladaptive and excessive response to reports of your daughter's bullying.
57 Ms Cidoni did see that you would be amenable to change with therapeutic intervention. She recommended regular counselling from a qualified psychologist who understands trauma symptoms.
58 Ms Cidoni again expressed concern for your mental health if incarcerated. In her view, you are likely to overreact to that environment, making you a target, and your mental health is likely to deteriorate. There was a risk that you would find a prison setting re-traumatising.
59 Your counsel does call into your aid the principles of R v Verdins & Ors (2007) 16 VR 269 and also relevantly refers me to the decision in Brown v R [2020] VSCA 212. The Crown concede that there is a basis to apply all limbs of the decision in Verdins and I accept this joint submission.
Rehabilitation
60 You have made efforts towards positive change.
61 On 7 October 2021, you completed a six week program entitled 'Sea Change: Anger Management for Women'. There is, in my view, probably more work for you to do in this space but your efforts should be commended.
62 A letter dated 20 October 2021 authored by Rita Carino, Family Services Case Worker with the City of Darebin, confirms that she began working with you in June of this year and was intending to close her involvement with you on 28 October 2021. As a family services case worker, Ms Carino's role is to work with families whose children are at risk and require parenting supports. She describes you as well engaged with the service and that all your goals were met. She also advises that you have received a housing transfer to the Sunbury area, which I understand has taken place and you have been referred to services in that region.
63 You have maintained a counselling regime.
64 You have enrolled in a business course and hope to develop your own business, such that you can work from home and support yourself and your children.
65 I accept that your role as a mother is an important one to you and represents a significant motivator to stay out of further trouble.
66 In addition, a letter authored by Marie Sloan from 'Work For The Soul', a registered charity, indicates that you began volunteering with their service in 2019. She describes you as patient, thoughtful and very supportive. You are a valued team member. She was aware of the circumstances of offending and observes that you were distressed by it. It is intended that you maintain your volunteer work with this service. You have found value and a sense of self in your volunteer work.
67 Despite Ms Cidoni's ventilated concerns and your precarious mental health, it would otherwise appear that you are making many efforts to improve your life for the better.
Plea of guilty
68 You did indicate your willingness to plead guilty to the charges on this indictment following participation in the case conferencing process, which forms part of the County Court's response to the COVID-19 pandemic.
69 Case conferences are designed to discuss pathways to resolution where possible or to narrow the issues prior to listing any trial. Your decision to resolve and plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and many trial dates remain as yet unfixed.
70 Your case conference was held on 19 May 2021 and you were arraigned on
9 June. Time was given to allow you to complete your anger management course and to gather other materials in support. Your formal plea hearing took place on 26 October 2021.
71 In the recent decision of Worboyes v R [2021] VSCA 169 at paragraph 39 the Court of Appeal said that,
“ a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time…”
72 Your plea of guilty, whilst not at the earliest stage, has utilitarian value in saving the court the time and expense of contested proceedings, as well as the need for witnesses to attend and give evidence. In the circumstances of the distressing events which unfolded on 2 August 2019, this would be of some significance to Ms Anagnostopoulos.
73 Whilst your remorse is perhaps a little harder to discern, I do accept that there is a basis to take into account some remorse.
74 All of these factors will be taken into account in your favour.
Submissions
75 Your counsel submits that all relevant sentencing considerations can be properly addressed in the imposition of a Community Corrections Order. The prosecution submits that it is open to the court to impose a significant Community Corrections Order or what is referred to as a combination sentence, that is, a term of imprisonment in combination with a Community Corrections Order.
76 Section 37 of the Sentencing Act obliges me to seek an assessment when considering the imposition of such an order. The making of an order also requires the consent of the offender.
77 An assessment outcome report dated 29 October 2021 assesses you as presenting with a high risk of re-offending. The author of that report describes you as being forthcoming during the assessment process and as prepared to be supervised by the Office of Corrections. You are assessed as suitable for a Community Corrections Order.
78 A Mental Health Advice and Response Service assessment was also undertaken. In a brief report dated 4 November 2021, a psychiatric admission to Austin Health in December of 2014 was identified, in keeping with what I was told during your plea hearing. At that time you were diagnosed with borderline personality disorder with a personal history of self-harm. You were identified as being a victim of physical abuse and other maltreatment and as presenting with mental and behavioural disorders, due to what was described as "cannabis psych disorder".
79 That assessment described you as polite and engaging, with rapport established. You have seen benefits in recently prescribed anti-depressant medication. A mental health care plan was recommended with a view to providing ongoing mental health assistance. I understand you have put this assessment in train.
Sentencing
80 The basis purposes for which a court may impose a sentence include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.
81 I must also balance the interests of the community in denouncing criminal conduct, with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.
82 I have taken into account the sentencing guidelines referred to in section 5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, as well as the principles of totality, proportionality and parsimony.
83 Courts now have more discretion in terms of choosing a sentencing disposition, which does enable all the purposes of punishment to be served simultaneously, in a coherent and balanced way in preference to the option of imprisonment, which is skewed towards retribution and deterrence, factors which I have determined have less weight in the overall sentencing mix for you.
84 Whilst the path to rehabilitation may not necessarily be an easy one for you, you have started that journey and it seems that your ability to access appropriate services has a role to play. A Community Corrections Order can be punitive, achieve deterrence and may be suitable even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment.
85 In my view, there is merit in focussing on treatment, rather than community work in all the circumstances of your case. Punishment can be reflected in the duration over which an order hangs over your head.
86 I propose to impose an aggregate sentence, as I am satisfied that the offences are founded on the same facts or form or part of a series of offences of same or similar character. In so doing, I again bear in mind the principles of totality and proportionality.
87 In relation to the two charges on the indictment you are convicted and placed on a Community Corrections Order for a period of two years. During this order you are to:
(a) submit for 125 hours of community work;
(b) undergo treatment and rehabilitation for your mental health;
(c) undergo treatment and rehabilitation for programs designed to reduce your risk of re-offending; and
(d) be supervised by the Office of Corrections.
88 Your treatment hours are to be offset against the community work component to the value of 75 hours; that is, more treatment, less community work.
89 I have also been guided by the report of Ms Cidoni, which recommended that you should not be overwhelmed.
90 In addition to the conditions I have imposed there are standard conditions. Given your history you are probably familiar with them but in any event, the first and foremost of those is you must not commit any other offences punishable by imprisonment during the order. You must report within two working days of your release to the nearest Community Corrections Office, which in your case I understand to be Sunshine. There might be one closer. You are required to advise your supervising Corrections Office of any change of address where you are living and working and you must do so within two clear working days. It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all instructions and directions of your Corrections Officer. You are not allowed to leave the State of Victoria without prior permission of your supervising Corrections Office.
91 In my view, this order presents you with a chance to continue to change your life in a positive fashion, should you choose to take up that opportunity and the supports that should be made available. The order can be breached if you do not comply with it in terms of the conditions or if you re-offend whilst it is in place. If you do, you will have to come back in front of me for breaching the order. I may then be required to re-sentence you on the original charges as well as having to sentence you for a charge of breaching the order.
92 I cannot place you on this order unless you consent and will certainly give you, Ms Murphy, the opportunity to speak to Mr Rofe in a moment.
93 Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty I would have sentenced you to a total effective sentence of 12 months imprisonment, in combination with a Community Corrections Order of 18 months duration.
94 HER HONOUR: Mr Rofe, would you like the opportunity to speak with
Ms Murphy and is there anything that you need to double check with me before you do so?
95 MR ROFE: Yes. Thank you, Your Honour. I will take that opportunity and I will address the second part of the question in a moment.
96 HER HONOUR: All right. Well, I might just stand down so you can have that conversation if you like? Do you want me to stand down?
97 MR ROFE: I think I'll receive an answer very quickly, Your Honour. Yes. She consents, Your Honour.
98 HER HONOUR: All right. I need her verbal consent, Mr Rofe. Orders will be sent through but I can reflect your client's verbal consent over the video link. So, I might ask Ms Murphy is she is prepared to remove her mask and just indicate whether she is consenting to the corrections order that I have just imposed.
99 OFFENDER: Yes, Your Honour.
100 HER HONOUR: All right. Thank you very much. Ms Webster, is there anything from you?
101 MS WEBSTER: No, Your Honour. There are no ancillary orders to be made in this case.
102 HER HONOUR: All right. Thank you. All right, well, in a moment I will close the court until 9 o'clock tomorrow and I will leave you on screen, Mr Rofe, so that my associates can get relevant details to send through the paperwork.
103 MR ROFE: Yes. Thank you, Your Honour.
104 HER HONOUR: All right. Well, thank you very much to each of you. May I commend both of you for the enormous assistance I got in the proper consideration of this matter. I am very grateful for that assistance,
Ms Webster and I am certainly very grateful for your assistance as well,
Mr Rofe.
105 MR ROFE: Thank you, Your Honour, may it please the court.
106 MS WEBSTER: As Your Honour pleases.
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