Director of Public Prosecutions v Murphy

[2020] VCC 461

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01755

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARY MURPHY

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2020
DATE OF SENTENCE:	17 April 2020
CASE MAY BE CITED AS:	DPP v Murphy
MEDIUM NEUTRAL CITATION:	[2020] VCC 461

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S. MacDougall	Office of Public Prosecutions
For the Accused	Mr A. Patton	Haines and Polites

HER HONOUR: 

1Gary Adrian Murphy, you have pleaded guilty before me to four charges of handling stolen goods, one charge of armed robbery, two charges of obtaining property by deception, one charge of theft, one charge of possessing a drug of dependence and one summary charge of breaching bail.

2The facts underlying your offending are as follows.  On 22 February 2018, at about midnight, a young lady by the name of Kimberly Martin went to stay at her boyfriend's home in Prahran, parking her Nissan Skyline coupe in front of a neighbour's house and taking her keys with her.  The next day, the vehicle was gone, having been taken some time during the night.

3On 26 February 2018, the victim of the armed robbery, James Hancock, was walking down York Street, Prahran on his way to the gym.  A silver sedan, being the car stolen from Ms Martin, drove passed him and parked further down the street.  Your presence in that car underlies Charge 1 on the indictment, handling stolen goods being use of the stolen vehicle.

4Mr Hancock saw two men in the car and as he continued walking down the street, the driver of the car got out and ran towards him.  That person, who was you, was holding what seemed to be a box cutter with a four inch blade. 
You demanded Mr Hancock hand over his backpack and wallet which unsurprisingly in the circumstances, Mr Hancock did.  These actions by you underlie Charge 2 on the indictment, armed robbery.  You then demanded
Mr Hancock's watch as well, which he handed over and then you ran back to the car and drove off.

5Mr Hancock flagged down a passing driver who wrote down the licence number plate of the car which you had been driving at the time and police were called.  The backpack contained Mr Hancock's debit card, his phone and his keys.

6Later on 26 February 2018, that is that day, at about 6 pm, you attended the Coles supermarket in Balaclava using Mr Hancock's credit card to buy gift cards to the value of $84.90.  Those actions underlie Charge 3 on the indictment, obtaining property by deception.

7You then presented another of Mr Hancock's credit cards to make a second purchase to the value of $84.90 which actions are also part of Charge 3. 
Also, that day, you went to the 7-Eleven store at Balaclava where you presented Mr Hancock's credit card to obtain other goods to the value of $119.90. 
That action underlies Charge 4 on the indictment, obtaining property by deception.  Again, later that day, you went to Coles Express in Elsternwick using Mr Hancock's credit card to buy cigarettes to the value of $28.95, those actions also comprising part of Charge 3 on the indictment.

8Finally, on that day, you went to a Coles supermarket in Clayton using
Mr Hancock's credit card to buy cigarettes to the value of $31.70, also actions comprising part of Charge 3 on the indictment.

9On Friday March 2 2018, you were driving the car stolen from Ms Martin along Glenhuntly Road in Caulfield South, alone in the vehicle, that car now having stolen number plates attached to it.  Your action in using those number plates underlies Charge 5 on the indictment, handling stolen goods.

10While driving, you struck two parked vehicles, first a BMW and then after overcorrecting, a Mercedes C200.  The owners of both cars were in the immediate vicinity and approached you.  You initially remained seated in the Nissan and exchanged personal details, you saying you didn't have your driver's licence with you.  You used your phone to take a number of photos of the damaged vehicles and gave the name of Gary Johnson and a Prahran address, together with a mobile number.  One of the owners of the cars immediately called that number and your phone rang.

11You told the two car owners that you were going to have a cigarette and walked casually to the next intersection but did not return and police were called as well as the fire brigade.

12When police attended the scene, they established that the Nissan Skyline was a stolen vehicle and all three vehicles were towed away from the area. 
The Nissan Skyline was towed to the Melbourne Towing Centre where it was examined that day and certain forensic evidence such as DNA, fingerprints and so forth were obtained from both the vehicle and items inside it.

13At about 10.50 am on 3 March 2018, you were driving a white Nissan 300ZX coupe with registration plates XLD 099 when you attended the 7-Eleven petrol station in Heidelberg Road in Alphington.  That car had been stolen some time between 26 and 27 February 2018.  Your actions in driving that car underlie Charge 6 on the indictment, handling stolen goods.

14You drove off without paying for the petrol which you obtained, that underlying Charge 7 on the indictment, theft.  Police obtained CCTV footage showing both the car and yourself.

15After that offending, two people, Frances Sanders and her partner, were at home on 3 March 2018, their house overlooking a laneway used by pedestrians to reach the nearby Eaglemont railway station.

16In the middle of the day, Ms Saunders saw a white sedan parked in the laneway with you crouching down, using a drill to attach licence plates onto the car. 
She reported this to her partner, Craig Clohesy, who went to the balcony and asked you what you were doing.  When Mr Clohesy asked why the front and rear plates were different, you claimed that you just changed over your registration.  Mr Clohesy took photographs of you and Ms Sanders contacted Heidelberg police station.  Whilst she was inside calling police, you reversed out of the laneway and drove off.  One of the number plates that you had attached to the car had been stolen at Heidelberg on 3 March and your use of that number plate underlies Charge 8 on the indictment, handling stolen goods.

17Police officer, Senior Constable George Bitar who was performing patrol duties in Richmond on 5 March in company with Senior Constable Lambros Lazounas, saw a white Nissan 300ZX, that is the car that I have referred to, bearing the stolen number plates being driven by you and they followed the car onto the Eastern Freeway, before it exited at the Chandler Highway.  A number of police units and the Police Air Wing became involved and they saw two men leave the car at the Northland Shopping Centre and flee on foot.  A short time later, you were apprehended by police after a short foot pursuit.

18You were searched and, among other things, police seized fold out knives and a Ziploc bag containing white crystals, later analysed as containing methylamphetamine, underlying Charge 9 on the indictment, possession of a drug of dependence.

19You were identified by one of the owners of the cars hit by you in Prahran via a photo board.  You were also identified via photo board identification by James Hancock.  Various DNA samples were analysed and ultimately the examination led to the conclusion by the Victoria Police Forensic Services Centre scientists that it was 100 billion times more likely if you were a contributor to the samples which were obtained from the steering wheel and a water bottle in the car than any other person. 

20You were arrested on 5 March and taken to Preston police station where you provided fingerprints but declined to answer questions.

21At the time of the offending, you were on bail granted by the County Court of Victoria on 24 January 2018 and your breaching of this bail relates to the summary charge.

22The maximum penalty for armed robbery is 25 years' imprisonment. 
The maximum penalty for handling stolen goods is 15 years' imprisonment. 
The maximum penalty for obtaining property by deception is 10 years' imprisonment.  The maximum penalty for theft is 10 years' imprisonment. 
The maximum penalty for possessing a drug of dependence not for the purposes of trafficking is 30 penalty units or one year imprisonment or both.  The maximum penalty for committing an indictable offence whilst on bail, which is the summary offence that you have pleaded guilty to, is 30 penalty units or three months' imprisonment.

23I now turn to your personal circumstances.  You are now 32 years of age. 
Of most importance to the sentencing exercise before this court is the fact that on 3 May 2019, you were sentenced by His Honour Judge Johns of this court to a total effective sentence of six years and four months with a minimum term of four years on a charges of aggravated home invasion and theft.  These were the charges for which you had been placed on bail at the time that you committed the offending that has brought you here before this court.

24I received a report from psychologist, Gina Cidoni.  It would appear that your background is one where your parents separated after your mother fell pregnant when she was 16 and you had no further contact with your father until quite recently.  Your stepfather worked as a truck driver and landscaper.  You have got two younger half-brothers, age 21 and 19, born to your mother and stepfather.  Your youngest brother is apparently serving time in prison.

25You told Ms Cidoni that your mother and stepfather were both drug dealers and cannabis users and that you lived in commission flats and had multiple customers visiting daily.  You told Ms Cidoni you saw a great deal of violence in this context although your parents eventually ceased this lifestyle.

26Your stepfather died in 2016.  Your mother now resides in Morwell and remains supportive of you.  There was some involvement by the Department of Health and Human Services when you were growing up over protective concerns and at the age of 16, you were placed in a community residential unit in Cheltenham for six months. 

27When you were 19, you moved into a rental unit in Sandringham for two years at which time you were in a relationship with a woman by whom you had three children.  That relationship ultimately ended in 2016.  The Department of Health and Human Services were involved with your children over the drug use of yourself and your partner before the ending of that relationship and have now been placed in the care of their maternal aunt.

28In terms of your education, you ultimately dropped out of school in Year 9 whilst at the Highett campus of Sandringham College.  You started but did not complete TAFE courses in welding and mechanical engineering.  From age 19, you worked in commercial refrigeration for three years and whilst completing a Certificate III in mechanical engineering but lost your licence as a result of drink driving and then lost your job.  You have then held various other jobs in welding and mechanics and manufacturing but never for more than six months at a time.

29You were diagnosed with Attention Deficit Disorder when you were about seven and were prescribed dexamphetamine and saw a psychologist for a period but stopped your medication in your teenage years.

30You began using cannabis when you were 13 and continued this up until 2016 and reported to Ms Cidoni binge drinking from the ages of 15 to 20.  You began using ecstasy when you were 16 and then began using ice.  You dabbled in heroin and it would appear you used GHB on five to 10 occasions in a major way.  You said that you stopped using all drugs other than cannabis when you were with Danielle but relapsed in 2015 and began using ice and GHB daily.  
It would appear that you had a major drug habit at the time of your offending and your offending was carried out by you in order to support that habit.

31You have a fairly concerning prior criminal history, beginning in 2009 when you were dealt with for driving offences, then again in 2010 for theft from a motor vehicle, fraudulent use of identification, which you were given a community corrections order.  In 2012, you breached that order by failure to comply. 
In February 2014, you were sentenced to a term of imprisonment and then released on a community corrections order on charges including recklessly cause injury, driving charges, intentionally damaging property, resisting police and unlawful assault.

32Then in 2016, you were dealt with for contravening your community corrections order and you were sentenced to an aggregate term of imprisonment of five months.  In 2017, you were also dealt with for contravening a community corrections order and other charges and given another two months' imprisonment.

33Then in March 2017, you were sentenced to an effective total sentence of five months' imprisonment for theft, obtain property by deception, attempting to commit an indictable offence whilst on bail, attempting to obtain property by deception, motor car theft, theft and driving offences.  Ultimately, you were also dealt with for a charge of unlawful assault whilst in custody and you were sentenced to four months' imprisonment.  I have already referred to the sentence imposed by His Honour Judge Johns on 3 May 20109.

34Whilst I have said that you have a concerning prior criminal history, it is clear that the offending you have been engaging in in the most recent times is a very marked escalation, that is, far more serious than offending you have been engaged in previously.  It is extremely concerning that you were on bail for a charge of home invasion and then engaged in this offending.  The only explanation really that I have been given and that you appear to have given your counsel is that you had a large and persistent ice habit and that you needed money for that and basically to live.

35Whilst in custody, there have been a number of disciplinary difficulties.  You ended up in management custody for between 14 and 15 months and the unlawful assault that you were dealt with in 2019 related to your assault of a prison officer.  You are now out of management, back in mainstream and you are working in the laundry five days a week.

36You are necessarily limited in the number of programs you can undertake in the number of programs you can undertake.  You have undertaken a short ice addiction course, if I can put it that way.

37The current situation given the COVID-19 crisis is that there is a great deal of limitation in terms of programs you can undertake.  You are not able to receive visits and generally speaking, those serving a term of imprisonment are subjected to greater anxiety in terms of a risk of contracting the virus should it break out in the prisons and suffering from the various limitations that I have described.  I recognise those factors exist insofar as you are concerned, and I will also attach some mitigation to the sentence that I am ultimately going to impose in relation to that.

38I also bear in mind that I must look at the issue of totality insofar as your sentencing is concerned.

39Your plea of guilty came at a very late stage, that is virtually on the day of the start of the trial and a contested committal was conducted.  You are not entitled to the discount of an early plea of guilty, nor have you prevented a course in relation to these charges, which has spared the victims the trauma of giving evidence and being cross-examined.

40It is quite clear given the attitude that you took in relation to the plea entered in these charges, is why the matter could not be heard before
Judge Johns.

41Nevertheless, I have to take into account your relatively young age, you are still in your early 30s and the sentence imposed by Judge Johns. What that means is I cannot impose a sentence which is crushing. At the same time, this is a very big jump in offending.  One minute, you are a doing home invasion and the next minute, you are leaping out of a stolen car with a box cutter in your hand, waving it around under somebody's nose, while you are on bail for your previous offending.

42So what is worrying for this court is your prospects of rehabilitation, that is how likely is that you are going to offend in this incredibly dangerous, violent way when you get out of gaol. It is very hard to say.  I could only assume that your prospects of rehabilitation must be guarded.  It is a matter for you.  It seems to me that your drug use is underlying in a great deal of this and I certainly accept that whilst you have a reasonably extensive prior criminal history, that history was not particularly serious until recent times.

43Then you seem to have exploded into the higher jurisdictions such as the County Court with quite a flourish.  It is really nasty, violent offending.  I do not want to sentence a relatively young man to a crushing sentence, but I have to conclude that your prospects of rehabilitation can only be regarded as reasonable at best.  There are also the aggravating features, as I have said, that you committed this offending whilst on bail for even more serious offending.

44In any event, the way I have gone about this is to look at, although it is a somewhat artificial exercise that given that up until pretty much the last moment, you were pleading not guilty to these charges, what would have been appropriate total sentence for this offending and I have concluded that a seven and a half year term with a five and a half year minimum for both sets of offending would be appropriate.

45So I am going to sentence you in this way.  You are therefore sentenced as follows.  On Charge 1, you are sentenced to four months' imprisonment. 
On Charge 2, you are sentenced to three years and six months' imprisonment.  On Charge 3, you are sentenced to two months' imprisonment.  On Charge 4, you are sentenced to one month imprisonment.  On Charge 5, you are sentenced to two months' imprisonment.  On Charge 6, you are sentenced to two months' imprisonment.  On Charge 7, you are sentenced to two months' imprisonment.  On Charge 7, you are sentenced to two months' imprisonment.  On Charge 8, you are sentenced to two months' imprisonment.  On Charge 9, you are sentenced to two months' imprisonment.  On the summary charge of committing an indictable offence whilst on bail, you are sentenced to two months' imprisonment.

46The base charge will be the sentence imposed on Charge 2, that is three years and six months.  I order that two months of the sentence imposed on Charge 1, one month of the sentence imposed on Charge 3, Charge 5, Charge 6, Charge 7, Charge 8 and Charge 9 be served cumulatively to the sentence imposed on Charge 2 and all other sentences.  So that should give a total effective sentence of four years and two months.  I order that you serve a minimum term of two years.  So that is a total effective sentence for this offending.

47Now, in terms of the fact that I must set a new minimum term, I order that the new minimum term in relation to both sentences be a term of five years and six months and I order that the new maximum term will be seven years and six months.

48I order that that sentence, the new minimum term run from the date of the sentence imposed by His Honour Judge Johns on 3 May 2019.  So I am backdating that sentencing to 3 May 2019 and I declare, as Judge Johns did, that you have already served 579 days had been served as pre-sentence detention.

49Just to explain that, as I understand it, I cannot date it from today and then say that Mr Murphy has served an X amount of time up until today because that time actually cannot go towards the new minimum, it has to be backdated to that date and that means that the minimum term I have set will run from the date with the pre-sentence detention already served by.

50So that the amount of time he has served in relation to the new minimum is catered for by the fact that I am backdating to that minimum term to run from the date he was sentenced by Judge Johns.  So it is as if Judge Johns sentenced him on 3 May 2019 to seven and a half years with a five and a half year minimum with the PSD.

51MR PATTON:  Yes, Your Honour.

52HER HONOUR:  All right.  So that means you basically have got another
18 months on top of this, all right, Mr Murphy?

53OFFENDER:  Yes, Your Honour.

54HER HONOUR:  This need not be part of my sentencing remarks, but I just say it gives a court no joy to sentence a relatively young man, you have got three kids.  You have got quite a lot of skills.  You are a man who can make his way in the community.

55OFFENDER:  Yes, Your Honour.

56HER HONOUR:  I know it is a difficult time to be in gaol.  I just hope things change for you when you get out, Mr Murphy.

57OFFENDER:  Thank you.

58HER HONOUR:  And it is not easy because I know you cannot see your kids in the meantime, can you?

59OFFENDER:  No.

60HER HONOUR:  No.  All right.  Thank you very much.

61Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have declared a new minimum of six and a half years and a new maximum of eight and a half years.  So it would have been eight and a half with six and a half.

62MR PATTON:  As Your Honour pleases.

63MISS MacDOUGALL:  Your Honour, there were also orders sought for forfeiture and disposal.

64HER HONOUR:  Do we have those here?

65MR PATTON:  They are not opposed, Your Honour.

66HER HONOUR:  Pardon?

67MR PATTON:  Not opposed, Your Honour.

68HER HONOUR:  Could you forward those?  I have had a change of associates in the meantime.

69MISS MacDOUGALL:  Yes.

70HER HONOUR:  We appear not to have those orders.  I will make those orders.

71MISS MacDOUGALL:  Thank you, Your Honour.  I can email them to
Your Honour's current associate.

72HER HONOUR:  If you do not mind emailing them and I will sign them and we will send them back to you, all right?

73MISS MacDOUGALL:  Thank you, Your Honour.

74HER HONOUR:  Is there anything else that I need to attend to?

75MR PATTON:  No, Your Honour.

76HER HONOUR:  Thank you.  I thank counsel for their assistance.

77MR PATTON:  If Your Honour please.

78MISS MacDOUGALL:  If it pleases the court.

79HER HONOUR:  Thank you very much.  Thank you.

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