Director of Public Prosecutions v Murphy, Daniel
[2013] VCC 615
•23 May 2013 (in Melbourne)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02197
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL MURPHY |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 March 2013 (in Shepparton), | |
DATE OF SENTENCE: | 23 May 2013 (in Melbourne) | |
CASE MAY BE CITED AS: | DPP v Murphy, Daniel | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 615 | |
REASONS FOR SENTENCE
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Subject: Plea – sentencing
Catchwords: Theft – stalking – aggravated burglary – recklessly cause injury – attempted aggravated burglary – transferred summary charge possess prohibited weapon without exemption
Legislation Cited: Crimes Act 1958, Criminal Procedure Act 2009, Sentencing Act 1991
Cases Cited:
Sentence: 4 years and 4 months' imprisonment, minimum term 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Mr D. Cordy Ms N. Resstel-Pires | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Mr D. McKenzie Mr T. Marsh | Victoria Legal Aid |
HIS HONOUR:
1 Daniel Murphy, you have pleaded guilty to one charge of theft, two charges of stalking, one charge of aggravated burglary, one charge of recklessly cause injury, one charge of attempted aggravated burglary and one transferred summary charge of possess a prohibited weapon without exemption.
- Theft carries a maximum penalty of 10 years’ imprisonment.
- Stalking carries a maximum penalty of 10 years’ imprisonment.
- Aggravated Burglary carries a maximum penalty of 25 years’ imprisonment.
- Recklessly Causing Injury carries a maximum penalty of 5 years’ imprisonment.
- Attempted Aggravated Burglary carries a maximum penalty of 20 years’ imprisonment.
- Possessing a Prohibited Weapon carries a maximum penalty of 2 years’ imprisonment or 240 penalty units.
2 You are now aged 41, having been born on 15 October 1971, and you were 39 at the time of the offending.
3 The circumstances of your offending are as follows.
4 The first victim, MD, is 20 years old and lives alone at Shepparton. On 10 July 2012 at approximately midnight, the victim was at home alone with her dog, which had started barking. The victim heard footsteps at the front of her house, near the meter box which is near her front door. After 15 minutes or so she heard no other noise but decided to go to a friend's house. As she came out of the front door, she noticed that the meter box was wide open. Nothing seemed out of place and she then got into her car and left.
5 On 20 July 2012, the same victim was at home with a friend watching television. At approximately midnight her dog started barking viciously for about ten minutes. The victim felt that someone was near her house although she could not see anything through her window.
6 The victim and her friend then decided to go and purchase some food and walked out of the front door and looked around. The friend saw someone in the park. They both got into the car and the victim saw a male walk past her driveway.
7 On Saturday night, 21 July 2012, that same victim went out and returned home at 3 am on 22 July, arriving home by taxi on her own. As she had a friend staying over that night, she had arranged that she would leave her house keys in a birdbath in the front garden. The victim took the keys, went inside her house and changed into her pyjamas. When she went to place the keys outside again for her friend, she noticed a man in dark clothes on the footpath in front of her next-door neighbour's house. The man walked towards the victim’s house and the victim quickly retrieved her keys and ran inside her house. The man had looked the same height as the man she had seen the previous day.
8 On the evening of 22 July 2012, the victim had her friend sleep over at her house again and they both went to bed after midnight. In the early hours on 23 July 2012, the friend woke the victim and asked her if she had heard a noise. She replied that she had not. They both then sat up in bed and could hear a noise sounding like someone was walking outside the bedroom window. They both got out of the bed and heard footsteps in the back yard, and the dog started barking. The friend then started to make banging noises and they both heard the person in the back yard run off.
9 The victim then called police and they attended but could not find anyone. She then told them about the previous incidents.
10 The victim FD is 59 years old and also lives alone at Shepparton. You had previously known the victim through your ex-partner who worked at a hair salon owned by the victim.
11 On Friday 20 July 2012 at approximately 7.20 pm, you drove to the victim's address and parked your car around the corner. You then attended at the victim's home, where you went to the meter box and turned the power off at the switch. You then hid, waiting for the victim to come outside. The victim came outside and turned the power back on. You left the premises.
12 Later on the same night, at 7.50 pm, you re-attended at the victim's address and again switched the power meter off. You waited for her to come outside. However, instead, the victim called the police. You returned to your vehicle and drove off. Police attended and searched for the person responsible but could not locate you. The power was turned back on. A piece of sticky tape was placed on the meter box by police at this time.
13 Later on, at 8.25 pm, you attended at the address for the third time and removed the sticky tape and turned the power off and lay in wait for the victim. Police were again called and attended and searched for you but you had returned to your vehicle and left. The victim by this stage was very distraught and upset, so she left home and stayed with friends for the night.
14 On Saturday 21 July 2012, at midday, you drove past the victim's house and observed her vehicle to be in the carport. You went home, cut some eye holes in a beanie, armed yourself with a large kitchen knife and then drove to the address. The victim was home at her kitchen sink doing the dishes and had both doors into her rear yard open, airing out the house.
15 You pulled the beanie full down over your face, walked through the carport, through a back gate and into her rear yard. You then entered her premises through an open laundry door whilst armed with the large knife.
16 You then snuck up behind the victim, who was standing at the sink, and grabbed her from behind, placing a forearm across her throat trying to force her to the floor. You demanded that she lay down on the floor and lay on her stomach or you would "cut her." At one stage you were pointing the knife towards the victim's eyes and she put her hands up to shield herself. The victim refused to comply and retaliated by kicking and screaming at you and told you to "get away you wuss."
17 You continued to make demands of the victim to lie on her face. When she did not comply and continued to scream, you decided to leave and ran out the rear sliding dining-room door, through the carport and into the street. The victim then called 000 and waited for the police to attend. The victim was very traumatised by the whole incident.
18 The victim stated that at no time did you make any demand or request for money, drugs or food. The only demand made of her was to lay on her stomach.
19 The victim attended her doctor on 24 July 2012, and upon examination he found a bruise measuring 12cm x 5cm on her lateral upper thigh with tender soft tissue injury, and also a small puncture wound of 3mm on the palm of her left hand which was regarded as a “superficial injury”.
20 A large-scale investigation was then commenced by Shepparton detectives in order to attempt to locate the offender responsible for this attack.
21 The victim DJ is 81 years old and, again, lives alone at Shepparton. On
29 July 2012, she was sitting at home watching television at approximately 6.30 pm when her power went out. The victim went outside to check if her neighbours had their power out and she could see that they had their lights on. She then went back inside and called her son.
22 On Monday 30 July 2012, at approximately 8.40 pm, the victim was again at home watching television when her dog ran barking at the front door, so she knew someone was there. The victim looked through the peephole and saw a man standing there wearing a dark hooded jumper. She asked who he was and what he wanted. You replied but your reply could not be heard by her because of the noise from the dog. She did not want to open the front door, so she went around into a courtyard which had a locked gate. She then shone a torch into your face while you were at the door. You did not anticipate her to be there and you engaged in conversation through the security gate.
23 You informed her that you had moved into the unit two doors down. You also stated that you had just got home from work and that your name was Stewart. You spoke with her about a power blackout the night before and said that you had a blackout as well and you had heard kids running down the street. This was all false information and provided as a cover story in order to gain the victim's trust. You then left a short time later.
24 Your fingerprint was later located on the meter box at this address.
25 In your record of interview, you admitted that approximately four months prior to the offences you had stolen number plates from an old car next door and placed them on a car that was given to you with Queensland number plates. You stated that you thought a car with Queensland number plates would be more readily identifiable and, as you were unlicensed and the car was unregistered, you wanted to change the plates.
26 You were arrested by Shepparton detectives on Wednesday 5 September 2012 at your work address and taken into custody for a record of interview. During the interview you co-operated with the police investigation and made a number of admissions, including:
oyou were an Aboriginal man
oyou had separated from your partner
oyou had just got off a three-year court order where you had been in prison and had to wear a monitoring anklet
othat once the order had finished you started drinking and lost your partner
oyou were stressed living on your own in Shepparton after having been put there by the Department of Justice after coming out of prison
oyou struggled with everything, life in general and financially
oyou started thinking about money.
27 Concerning the victim FD:
– you admitted to knowing the victim lived on her own and you decided to enter her house with a knife and walked up to her behind the sink and grabbed her from behind and pulled her to the floor .
– you had no intentions of harming her with the knife, she was screaming and kicking .. you were scared yourself and took off
– you agreed you took nothing from the house
– you said you were going to ask her for money
– you agreed that you noticed she lived on her own and walked past there a fair bit
– you agreed that you had turned her power off three or four times
– you thought that would make her come outside and ask her for some money
– you agreed you were wearing a beanie with eyes cut out
– the reason you returned to the address the following day was that you were “desperate for money”.
28 Concerning the victim DJ:
– you admitted turning her power off
– you had seen the victim at the front of her home weeding as you were driving around looking for someone to “rob money off”
– a week later at night you turned the power off. You also knocked on her door and mentioned something about the power
– you went there looking for money. You said ”I pick females because they seem smaller not because they are old or anything” and “I suppose I could overpower them”
– you said you were happy the victim spoke to you from behind the courtyard fence “because it stopped there and didn’t go further”
– in your mind you were supposed to “force myself inside and ask her for money”
– you further stated that you “didn’t have a knife on me or anything like that.”
– you stated there were only two houses you attended.
29 On Wednesday 5 September 2012 a search warrant issued pursuant to s.465 of the Crimes Act was executed at your address in Shepparton. Investigators recovered the large stainless steel kitchen knife, black full-faced balaclava with eye-holes cut out and other items of clothing worn during the commission of these offences.
30 Also during the execution of the search warrant the police located a set of “numchackus” which are a subject of the summary charge “possession of a prohibited weapon without exemption or approval” - this matter being transferred pursuant to s.145 of the Criminal Procedure Act.
31 I now turn to your personal circumstances.
32 As noted earlier, you are now 41 years of age and you were 39 when this offending occurred.
33 You have described an unremarkable childhood as the youngest of four siblings and participated in school and community sporting events. You experienced some difficulties with literacy and numeracy, however you managed to complete Year 9 at school and left whilst in Year 10.
34 You have been employed primarily as a slaughterman since leaving school.
35 You left home at age 20 and married in your early 20's. That marriage lasted 18 years and you have 15-year-old twins and a son aged ten.
36 You and your wife jointly purchased a home but each of you was a regular gambler and by around the year 2000 the mortgage had grown to an unmanageable amount and your work opportunities as a slaughterman had diminished. You sold the home, paid off debts and purchased a home in Echuca, where you thought you would be able to obtain more work. That house unfortunately burnt down and with the insurance you bought a home in Melbourne. Twelve months later you and your wife separated and you were left with virtually no assets.
37 Your parents separated late in life and from around the age of 28 to 30 your father ceased contact with you. You were close to him and the separation hurt.
38 You commenced another relationship later which lasted two years. You were living in Shepparton. The relationship ended when you were charged with the current offences. You maintain contact with that former partner, but your close relationship is effectively over.
39 Your prior convictions are principally for sexual offending, for which you have been imprisoned, and early relatively minor offending in 1990 and 1996 for tampering and being unlawfully on premises. You have no history of previous violent offending or theft. In 2009 at the Melbourne County Court you were placed on an extended supervision order for a period of three years. In 2010, on the breach of that order, you received a community-based order for eight months.
40 The most relevant aspect about your personal circumstances is your history of problem gambling. Despite many years of hard work, you have dissipated all your assets through this compulsive activity. In the process it has impacted on your relationships. According to the tendered report of Mr David Ball, forensic psychologist, you satisfy the diagnostic criteria for pathological gambling and this condition has been chronic for about five years.
41 In your record of interview, your report to Mr Ball and through your counsel on the plea, you have maintained that it was your desperation for money brought about through your gambling, that was the motivation for these offences. You were depressed, you owed money and you determined that single females living alone would be easier to overpower. I have accepted in an earlier ruling that your offending was not related to a sexual purpose.
42 The offending in the stalking and aggravated burglary charges involves serious offending. Aggravated burglary in particular is a very serious crime. In the particular circumstances of this case you first stalked the victim, entered the home of a single, mature woman who lived alone, grabbed her from behind and threatened her with a knife, demanding that she lie on her stomach on the floor. She resisted, and was injured in the process. I have no doubt that it would have been a very terrifying experience. Within a fortnight you attempted to enter the home to rob another single and vulnerable victim, this time an 80-year-old woman. Fortunately she was able to keep you out. These incidents were precipitated by the earlier repeated stalking episodes directed at the 20-year-old single victim that same month.
43 The victim impact statements provide eloquent testimony of the fear, anxiety and vulnerability of the victims.
44 In mitigation I accept the matters submitted by your counsel, including:
o that you have pleaded guilty at the earliest practicable stage and spared the community the expense and inconvenience of a trial;
o your admissions to police;
o your indigenous background;
o your expressed remorse and apology;
o the remand programs you have applied for and undertaken whilst in custody;
o the letters of support from your mother, your aunty, your former partner and Mr Keith Randall;
o your withdrawal from further offending when confronted by resistance by the victim of the aggravated burglary and assault; and
o your economic and emotional vulnerability at the time of offending through lack of employment and pathological gambling. Whilst pathological gambling itself is not capable of being regarded as more than minimally mitigating, I regard the context of your difficult financial circumstances brought about by that disorder at the time as relevant.
45 I also take into account in mitigation that you have never before engaged in offences of like character and that with the assistance of Mr Randall and other indigenous elders your prospects of rehabilitation for this type of offending are reasonably good.
46 Both your counsel and the prosecution accepted the inevitable consequences of a total effective sentence which would include a minimum term of imprisonment of some years. In formulating the sentences imposed and the total effective sentence I have been conscious to avoid double punishment because of the overlap in the various offences.
47 On Charge 1 of theft, you are convicted and sentenced to four months' imprisonment.
48 On Charge 2 of stalking, you are convicted and sentenced to six months' imprisonment.
49 On Charge 3 of stalking, you are convicted and sentenced to nine months' imprisonment.
50 On Charge 4 of aggravated burglary, you are convicted and sentenced to three years' imprisonment.
51 On Charge 5 of recklessly causing injury, you are convicted and sentenced to four months' imprisonment.
52 On Charge 6 of attempted aggravated burglary, you are convicted and sentenced to 12 months' imprisonment.
53 On the transferred summary charge 14 of possess prohibited weapon, you are convicted and sentenced to one month's imprisonment.
54 Charge 4 is the base sentence. I direct that two months of each of the sentences imposed on Charges 1 and 5, six months of the sentence imposed on Charge 6 and three months of each of the sentences imposed on Charges 2 and 3 be served cumulatively on the sentence imposed on Charge 4. The sentences are otherwise concurrent.
55 The total effective sentence is four years and four months' imprisonment.
56 I direct that the minimum term to be served before being eligible for parole is three years' imprisonment.
57 I declare that the period that you have already spent in custody in this matter, namely 260 days not including today, be reckoned as a period of imprisonment already served under this sentence and is to be deducted administratively.
58 For the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is five and half years' imprisonment with a non-parole period of four years.
59 At the plea hearing the Crown sought an order which was consented to for the retention of a forensic sample. I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, your prior convictions are such as to warrant the making of the order, the order is by consent and the granting of the order is in the public interest.
60 At the plea hearing, the Crown also sought a disposal order, to which you consented, and I have also made that order today.
61 Counsel, are there any other matters.
62 MS RESSTEL-PIRES: No, Your Honour.
63 MR MARSH: No, Your Honour.
64 HIS HONOUR: Thank you for your attendance today also, Mr Marsh.
65 MR MARSH: Not at all, sir.
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