Director of Public Prosecutions v Murphy

[2020] VCC 938

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00086

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEVIN MURPHY

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2020
DATE OF SENTENCE:	25 June 2020
CASE MAY BE CITED AS:	DPP v Murphy
MEDIUM NEUTRAL CITATION:	[2020] VCC 938

REASONS FOR SENTENCE
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Subject:  Sentencing
Catchwords:  Burglary and Robbery.
Legislation Cited: Sentencing Act 1997
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Hill	Office of Public Prosecutions
For the Accused	Mr G. Davis

HIS HONOUR: 

1Mr Murphy, you were convicted by a jury of 12 persons of the offences of burglary and robbery.  In addition to those, you have pleaded guilty to the offences of theft and possession of cannabis.  The circumstances of your offending are as follows.

2On 25 May 2018, you attended at premises in Bentfield Avenue in Melton West.  You climbed over a side fence of the premises but were unable to enter through any door.  You entered a bathroom at the premises by breaking a window.  This conduct constitutes the offence of burglary.  You walked through multiple rooms of the house and took possession of various items.  You placed them in your backpack. 

3At the time of your attendance in the premises, an occupant of the premises was in his bedroom upstairs.  He had heard the window break and he had heard you moving around downstairs, but he assumed that it was his mother with whom he resided. 

4The jury acquitted you of the offence of aggravated burglary.  Accordingly, I proceed on the basis that at the time of your entry into the premises, you were not aware that any person was inside the premises and that you were not in possession of any offensive weapon. 

5You went upstairs in due course and entered the occupant's bedroom where you saw him.  You demanded that he give you his mobile phone which he did.  You observed another mobile phone on his bedside table.  You demanded that he hand that to you also.  He did so.  That conduct constitutes the offence of robbery.

6The jury acquitted you of the offence of armed robbery.  Accordingly, I proceed on the basis that at the time of your entry into the occupant's bedroom and your demanding the mobile phones from him, you were not in possession of an offensive weapon. 

7(Indistinct words) not be in his room (indistinct) you went downstairs.  The occupant did call 000 from an upstairs phone shortly afterwards.  You left the house and returned to your home.

8Later, police arrived at the premises and spoke with the occupant who by this time had observed that his wallet containing $400 cash and four bank cards were missing, along with his driver's licence.  These items had been taken by you prior to you leaving the premises.  The taking of those items constitutes the offence of theft. 

9On 28 May 2018, police attended at your home.  You were there located, hiding in a roof cavity, and were subsequently arrested by police.  A search warrant was executed.  The wallet owned by the occupant of the Melton West premises containing $400 cash and four credit cards and his driver's licence was found.

10During the search, police also found a Ziplock bag containing green vegetable matter which was later examined and found to be cannabis.  That constituted the offence of possession of cannabis. 

11At the time of your detention you behaved in an aggressive and erratic manner and were unable to be interviewed by police. 

12You have been remanded in custody since the date of your arrest which I am told by counsel amounts to 759 days of pre-sentence detention not including today.

13The maximum sentences prescribed by Parliament for these offences are as follows:  burglary - 10 years' imprisonment; robbery - 15 years' imprisonment; theft - 10 years' imprisonment; possession of cannabis - a fine of five penalty units which is just over $1092.

14By way of background, you are currently aged 33.  At the time of your offending, you were aged 31. 

15You were born and brought up in various places including Werribee, Kingsville, Woodfield and also in New South Wales.  You attended numerous different schools and were expelled from a number of them mainly, it seems, for fighting. 

16You were principally raised by your mother.  It appears that you have not seen your father since you were aged four.  Your mother was, it seems, a person of poor health and a regular user of illicit drugs.  She has suffered a number of strokes and heart attacks. 

17You have had little contact with your sister, and you have had little contact with your half-siblings in recent years.

18You have never married.  You have no children.

19You have a number of prior convictions going back to 2004 which have relevance to my task of sentencing you.  Your criminal record was tendered at your plea hearing.  I will not identify each and every such prior conviction, but it is enough to note that you have some 55 prior convictions for aggravated burglary, 35 prior convictions for burglary, and 56 prior convictions for theft. 

20In addition, you have a number of other prior convictions for dishonesty offences including dealing with property suspected of being proceeds of crime, obtaining property by deception, dishonestly receiving stolen goods, and theft of a motor vehicle.  Further, you have prior convictions for making a threat to kill, escaping from police custody, assaulting police and possessing amphetamines.

21To put it mildly, Mr Murphy, your criminal record really is breathtaking.

22A report from a clinical psychologist, Carla Lechner, dated 29 July 2019 was tendered on your behalf at your plea hearing.  You provided her with a relatively detailed history of your upbringing.  You reported in July 2019 that you have had no contact with your sister who was brought up by your maternal grandparents or five younger half-siblings. 

23You have a longstanding history of chronic drug addiction relating particularly to methamphetamine, better known as ice.

24You suffered from abuse, neglect and abandonment from an early age.  I accept that you suffer from a mild intellectual disability that was not formally diagnosed until you had been incarcerated in an adult prison.  Ms Lechner considered that you had struggled to cope with a range of environmental and psychological stressors with your drug use representing a form of self-medication as well as providing you with an ongoing circle of acceptance or what you considered a circle of acceptance. 

25You found it difficult to survive in the community.  Ms Lechner noted that you relapsed into drug use within one day of your most recent release from prison.  You advised Ms Lechner that you were regularly bashed by your stepfather and molested by a friend of your stepfather until that friend committed suicide.

26You attended numerous schools in Victoria and New South Wales. Notwithstanding, it appears that you can barely read nor write. 

27At the age of 12, you suffered from a brain injury when struck by a bus.  Ms Lechner considered the nature and extent of those injuries is at present unknown.  You left school at the age of 14.  You told Ms Lechner that you had only worked one or two days in your lifetime.  You have advised Ms Lechner that although you are supposed to be in receipt of a disability support pension, the paperwork was yet to be organised for that. 

28You began smoking cannabis at the age of nine and for two years smoked on a regular basis.  Before your current period of incarceration, you were smoking two or three bongs per day.  You began using speed and cocaine at the age of 13 or 14.  You switched to ice at the age of 15, using intravenously.  By the age of 17, you began using heroin for about 12 months but are now prescribed methadone as a substitute for it. 

29You were diagnosed with diabetes in 2017 and later, cirrhosis of the liver.  You also suffered from a mild heart attack at one point. You ceased all consumption of alcohol some years ago. 

30Tests performed by Ms Lechner confirmed that your overall intelligence was in the mildly intellectually disabled range.  Your IQ is 67, with approximately 99 per cent of adults performing better.

31Ms Lechner considered that you had difficulties processing information, reasoning, making judgments and logical (indistinct) sequencing skills - skills that would be even further undermined by substance abuse.  She noted that you had advised her that you had been driving motor vehicles regularly since the age of 10. 

32Regarding previous time spent in prison, you told Ms Lechner that gaol was like a family in that older persons would look after you and that you could get help if you needed something.  She considered that you now presented with symptoms of borderline personality disorder and needed structure, routine and simple coping skills to manage stress.  The longstanding drug addiction required rehabilitation.

33She considered that you were suffering from substantial depression.  She considered that sending you into the community without a proper rehabilitation plan would be setting you up for failure and placing you at even greater risk of institutionalisation. 

34From a purely psychological perspective, she considered that you would benefit from engagement with treatment services and that in the absence of structure and support in the community, you were at high risk of relapse of both drug use and other offending behaviour.  She was concerned that gaol was beginning to feel like family to you. 

35In addition to Ms Lechner's report, there were other reports tendered before the court.  A disability overview report by a disability justice coordinator, Julia Kilandro, dated 12 May 2020 was tendered.  Her conclusions as to your intellectual disability were broadly consistent with those of Ms Lechner.  Dependence on (indistinct) was also noted by her.  She noted that your management of your insulin dependent diabetes was poor and that you were unable to independently manage your prescription medication. 

36Ms Kilandro was advised by you that upon your release from custody, you plan to reside with your half‑brother Dylan who I understand is aged about 25.  He was referred to in Ms Lechner's report of July 2019 as one of your half-siblings with whom you had no contact.  I take into account the evidence from Dylan today that although he has not seen you face-to-face often and that the last time that occurred was about a year ago at your mother's funeral, he apparently has been in daily contact with you for much of your current time in prison. 

37Ms Kilandro noted that your relationships with some of your siblings or half-siblings were fractured and complex.  One hopes that your relationship with Dylan is sound and will continue to be sound.

38I am also in receipt of a report of an extended pre‑sentence assessment outcome report from the Department of Justice and Community Safety dated 8 May 2020, authored by Stephen Mirikulous and Antonia Rajik.  This report details much of your background and in particular, details four occasions upon which you were granted parole after periods of imprisonment from November 2005 and September 2011.  On each of those parole periods, your compliance was deemed unsatisfactory due to several unacceptable absences and further offending committed by you.

39You were assessed in the report to be at high risk of reoffending because of your negative peer associations, lack of familial support, lack of ongoing employment, protracted illicit substance abuse and protracted criminal attitude. 

40The report notes that whilst on remand you have converted to Islam and have been unable to attend services in the multi-faith chapel within the prison this year as a result of being placed into a management unit. 

41The report notes your only plans once you are released from prison are to live with your brother, play PlayStation and isolate yourself at home.  You reported that in the past you had usually pushed help away, but that you were now putting your hand up for help which is to your credit.  You reported wanting to go into residential rehabilitation.

42The authors of the report deemed that you were a suitable candidate for a community corrections order, subject to a number of conditions. 

43I am also in report of a justice plan dated 12 May 2020, prepared and authorised by Ms Kilandro.  It recommended that you engage with a disciplinary justice coordinator such as her from the Department of Health and Human Services; you agree to supports and treatment that are identified by the disability justice coordinator; that you partake in an assessment of suitability and any recommendations made by disability assessment and treatment services in consultation with the disability justice coordinator. 

44In conclusion, the Department recommended these services in order to reduce the likelihood of you reoffending in the future. 

45On the basis of the material before me, I have got to be honest with you, Mr Murphy, I am of the view that your prospects of rehabilitation are relatively low.  I hope that I am wrong.  Your criminal record is serious. You have been sentenced to prison on a number of occasions.  You have been released from prison on parole on four occasions but on each of those occasions been unable to comply with the terms of your parole and have reoffended.  It is a real concern.  It has reached the point where it seems that you consider prison to become some sort of home for you. 

46However, in recent times, that attitude appears to have changed and you see the future as being at home with your half-brother, Dylan.  Better still if you can find employment, really for the first time in your life. That will go a long, long way in my opinion to have you leading an orderly life and making a contribution to society.

47Ms Kilandro and Mr Mirikulous are of the view that you would be likely to benefit from a community corrections order subject to a number of conditions including adherence to the justice plan to which I have referred, pursuant to s.80 of the Sentencing Act 1991.

48I take into account that, although you did your best to avoid detection by police at your home, once you were found and arrested, police report that you did cooperate with them. 

49I also take into account that although your plea was one of not guilty to charges of aggravated burglary and armed robbery, the jury found you not guilty of those charges and only convicted you of the lesser alternative offences of burglary and robbery.  I sentence you on the basis that, prior to your trial,  you pleaded guilty to each of the offences for which I am to sentence you. 

50Although I have some doubts as to your ability to rehabilitate, I consider that on balance, you should be given a further opportunity to do so.  I take into account the contents of your handwritten letter which was tendered at your plea hearing. 

51The court is empowered to make a community corrections order with a justice plan condition.  However, I am unable to make such an order unless you consent to it.  I take it that you have discussed the term that I proposed before we broke at lunch time with Mr Davis.  Is that correct?

52ACCUSED:  Yep.

53HIS HONOUR:  And is it the case that you consent to the community corrections order with the conditions that I outlined before lunch today?

54ACCUSED:  Yes, I am.

55HIS HONOUR:  Thank you.  In relation to the charges of burglary, robbery and theft, I sentence you - firstly, you are being convicted on each of those charges and I sentence you to - on an aggregate basis - to a term of imprisonment of two years.  I note that you have already served by way of pre-sentence detention that period and a little more which will be taken into account and deemed as time served under the sentence. 

56I also sentence you in relation to those offences to a two-year community corrections order commencing on the date of your release from prison.  I cannot actually say when that will be, but I doubt very much that it will be today.  It may be tomorrow, but I cannot guarantee or promise that.  But it will be as soon as can be conveniently arranged. 

57That community corrections order would be subject to a number of conditions. Firstly, there are mandatory or compulsory conditions which must be part of any community corrections order pursuant to s.45 of the Sentencing Act. Now, Mr Davis, did you get a chance to explain those s.45 mandatory conditions?

58MR DAVIS:  Yes, Your Honour.  I was given an opportunity by your associate prior to court commencing (indistinct).

59HIS HONOUR:  Well, that is excellent.  Probably the most important of those for the moment is that firstly you must report to the Corrections Victoria premises at Sunshine.  Mr O'Mallon, have you just got the address of that there?

60ASSOCIATE:  Just a moment, Your Honour.  Yes.  It is 10 Foundry Road, Sunshine, Victoria. 

61HIS HONOUR:  Yes.  At that address within two clear working days of your release from prison.  Now, if you were released from prison tomorrow, two clear working days would be Tuesday.

62ACCUSED:  Yes.

63HIS HONOUR:  So you need to report there by 4 pm on Tuesday.  If by some chance you were released today although I think that is unlikely given the time, you would have to ‑ ‑ ‑ 

64ACCUSED:  They said um, by 5 o'clock if it goes through.

65HIS HONOUR:  Well, I do not want to get into what ‑ ‑ ‑ 

66ACCUSED:  Yeah.

67HIS HONOUR:  ‑ ‑ ‑ the rules and regulations are about that but if you were released today then you would have to report there by 4 pm on Monday.  All right?

68ACCUSED:  Yeah.

69HIS HONOUR:  Important also in those mandatory terms is that during the term of - the two-year term of the community corrections order, you must not leave the State of Victoria.

70ACCUSED:  Yep.

71HIS HONOUR:  It means if you go and visit some mate in Albury, you have left Victoria. 

72ACCUSED:  Yep.

73HIS HONOUR:  If you cross over to Mount Gambier you would have also left Victoria and I am sure you will appreciate that.  If there is some particular reason why you wish to travel interstate, maybe for a funeral of a close friend or relative, maybe for a wedding of a friend or whatever ‑ ‑ ‑ ‑

74ACCUSED:  Yep.

75HIS HONOUR:  ‑ ‑ ‑ then you must discuss it first and obtain permission in writing from Corrections Victoria.

76ACCUSED:  Yep.

77HIS HONOUR:  Do not just leave the State.

78In addition to the mandatory conditions, there will be further conditions and I will go through those with you briefly now. Firstly, that you must submit to treatment and rehabilitation for assessment and treatment for drug abuse or dependency pursuant to s.48D(3) of the Sentencing Act.  Now, that as I understand it is what you have expressed a willingness and a desire to undertake.  Rehabilitation and treatment for drug abuse and dependency.

79ACCUSED:  Yep.

80HIS HONOUR:  Likewise, treatment and rehabilitation for mental health assistance ‑ ‑ ‑ 

81ACCUSED:  Yep.

82HIS HONOUR: ‑ ‑ ‑ pursuant to s.48D(3). Thirdly, treatment and rehabilitation involving participation by you in programs which are designed to reduce further offending or the risk of further offending by you.

83ACCUSED:  Yep.

84HIS HONOUR:  Fourthly, that you be supervised, monitored and managed by Corrections Victoria.  What that means is no more and no less than you will have a case manager assigned to you and that that manager will arrange for times and dates on which you are to attend at the Corrections Victoria premises and  be generally supervised.  He or she will want to know what you are up to, how things are progressing and the like.

85Fifthly, that you be monitored by this court throughout the term of this two-year order also known as judicial monitoring pursuant to s.48K of the Act.

86ACCUSED:  Yep.

87HIS HONOUR:  Normally, that would be being required to come to court on specific dates.

88ACCUSED:  Yep.

89HIS HONOUR:  That often may be every six months or so.  You would come along at 9.30 in the morning or at a time that is convenient to your work ‑ ‑ ‑ 

90ACCUSED:  Yep.

91HIS HONOUR:  ‑ ‑ ‑ if you are working at that time and I would ask essentially what is going on in your life and how you are progressing.  And if it is not me for one reason or another, then it will be another judge of this court.

92Seventhly, that you participate in a justice plan pursuant to s.80 of the Sentencing Act. That plan is essentially that you will have a - just bear with me for a moment.  In any event, the justice plan will be annexed to the order which you will be given shortly.  And you will have there an officer appointed to supervise, if you like that justice plan.  I now have it in my hand. 

93ACCUSED:  Mr Davis told me all about it.

94HIS HONOUR:  Well, I am not sure what it may be.  I do not know.  And they may change from time to time.  Also, the title that I was battling to remember was the disability justice coordinator. 

95ACCUSED:  Okay.

96HIS HONOUR:  Now, that would be Ms Kilandro.  It might be somebody else.  All right?  In any event, they are the conditions of the community corrections order ‑ ‑ ‑ 

97ACCUSED:  Yep.

98HIS HONOUR:  ‑ ‑ ‑ which you are obliged to comply with.  Let me make this clear.  These are not conditions that you might adhere to if you like the sound of them or if you felt good today or you had nothing better to do.  If you do not comply with those conditions, you are in breach of your community corrections order ‑ ‑ ‑ 

99ACCUSED:  Yeah.

100HIS HONOUR:  ‑ ‑ ‑ and the upshot is you will be brought back to court.  Breaching the community corrections order on its own is an offence punishable by up to three months' imprisonment.

101ACCUSED:  Yeah, yeah.

102HIS HONOUR:  But probably more importantly, you would come back before for resentencing on these offences.

103ACCUSED:  Yep.

104HIS HONOUR:  Which might not be quite as generous as they are, some people might think, today.  Now, just bear with me. 

105ACCUSED:  Yep.

106HIS HONOUR:  In relation to the judicial monitoring condition, I will fix a date of 10 December 2020 ‑ ‑ ‑ 

107ACCUSED:  Yep.

108HIS HONOUR:  ‑ ‑ ‑ for you to attend the County Court at 250 Lonsdale Street.

109ACCUSED:  Yep, that is where I met you.

110HIS HONOUR:  Corner of Lonsdale Street and William Street in any event.  I will make sure that you get a reminder notification that you be required to come into this court.  You can look up on the board when you enter and find out what court you are actually listed to appear in.  That will be at 9.30 in the morning.  And on that occasion, I will have reports to hand from those who are monitoring and supervising you.

111ACCUSED:  Yep.

112HIS HONOUR:  And I will be able to discuss your progress - hopefully your progress with you.

113ACCUSED:  Yep.

114HIS HONOUR:  Now, just bear with me.  (Indistinct words.) Just a moment.

115With regard to the offence of possession of cannabis, you are convicted of that offence and discharged without further order.  And just to make it crystal clear, counsel have advised me that you have served 760 days by way of pre-sentence detention including today, or put another way, 759 days not including today.  And I direct that that period be deemed as time already served pursuant to this sentence and recorded as such in the records of the court.

116It is my view, Ms Hill, that a s.6AAA declaration is not required. 

117MS HILL:  Yes, I do not cavil with that, Your Honour.

118HIS HONOUR:  Is there anything further that either counsel wish to put before me?

119MS HILL:  Only that Your Honour earlier indicated that you had made that disposal order insofar as that forms part of Your Honour's ‑ ‑ ‑ 

120HIS HONOUR:  Yes.  Perhaps I should just clarify that I have made that disposal order.  It relates to the clear Ziplock bag containing the green vegetable matter later found to be cannabis.

121MS HILL:  As the court pleases.  No further matters which I would seek to ‑ ‑ ‑ 

122HIS HONOUR:  Yes.  Mr Davis, anything further?

123MR DAVIS:  Nothing arising, Your Honour.  Nothing further.

124HIS HONOUR:  Yes.  So Mr Murphy, I wish you every success in the future.

125OFFENDER:  Thank you, sir.

126HIS HONOUR:  I am pretty much hoping to be proven quite wrong about your prospects of rehabilitation.

127OFFENDER:  Yes.  Yes.

128HIS HONOUR:  Not easy but I know you will do the best you can.

129OFFENDER:  Could I just have a quick question?  My brother, he - like, you know he works and that.  Is there any chance he can get a letter from court just to show his boss?

130MR ORAM:  I have one already.

131OFFENDER:  You have already gone one.  Oh okay.

132HIS HONOUR:  I do not think I am in a position to give you references or anything similar to that ‑ ‑ ‑ 

133OFFENDER:  Yeah, no.  I just do not want him - to interfere with his work.

134HIS HONOUR:  All right.  This is in relation to Dylan’s appearance today?

135OFFENDER:  Yeah, yes, sir.

136HIS HONOUR:  Well, Mr Oram, if you do run into strife ‑ ‑ ‑ 

137MR ORAM:  (Indistinct words.)

138HIS HONOUR:  I would be very surprised if your brother's solicitors would not provide you with a letter ‑ ‑ ‑ 

139MR ORAM:  I have one, I have - yes.

140HIS HONOUR:  Good, all right.  Thank you.  On that note, there being nothing else required of me, we will adjourn the court sine die, Mr Cochrane.

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