Director of Public Prosecutions v Murphy, Michael Patrick
[2013] VCC 159
•22 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 12-2333
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL PATRICK MURPHY |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 February 2013 | |
DATE OF SENTENCE: | 22 February 2013 | |
CASE MAY BE CITED AS: | DPP v Murphy, Michael Patrick | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 159 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Flynn | Office of Public Prosecutions |
| For the Accused | Ms J. Kennedy |
HIS HONOUR:
1 Michael Patrick Murphy, you have pleaded guilty to an indictment charging you with an offence of kidnapping on 8 March 2012, an offence of intentionally causing injury to Angelo Denomi on the same day and an offence of theft, that is stealing cash belonging to Angelo Denomi on the same day. You have also admitted a number of prior convictions. They include in the main offences of dishonesty and driving offences and, as your counsel pointed out, do not contain convictions for offences anywhere near as serious as the kidnapping offence which is the subject of Charge 1.
2 The prosecution tendered a plea Opening which is Exhibit A, I incorporate that document in its entirety into these reasons for sentence. I am not, therefore, going to read that document again. Suffice to say that the offence to which you have pleaded guilty arose against a background in which you were living with your co-offender, Rachel Kilpatrick, in a de facto relationship. That relationship was characterised by your mutual interest in heroin and you were users of heroin together during your relationship with her. Shortly before your offending conduct, a few weeks before, Ms Kilpatrick had deliberately drawn the victim into having sexual intercourse with her for which she had charged $150. Then, she drew another of your co-offenders, Rodney Gosland, into a scheme hatched between the two of them whereby they assaulted the victim, demanded money at knife point and obtained from him a sum of $700. It is not suggested by the prosecution that you had anything to do with that criminality or any of the dealings that Ms Kilpatrick had with the victim prior to your offending conduct on 8 March last year. But that provides the context in which a plan was hatched between you and Gosland to kidnap the victim and steal further moneys from him.
3 On the morning of 8 March last year, you and Gosland hid in some bushes at a property near Gosland's home address in Boronia where you knew that the victim was expected to arrive, apparently believing that he had been legitimately engaged to carry out gardening and clean-up work at a rental property at those premises. Your co-offender, Kilpatrick, had phoned the victim at home pretending to be another person and had pretended to hire him at the address at which you were waiting to enable you to commit the offences that you ultimately committed.
4 When Mr Denomi arrived at the address expecting to carry out gardening work, he was set upon by you and your co-offender, Gosland. Both of you were disguised with balaclavas, dressed in dark clothing and carrying back packs which contained a spare change of clothes. There he was assaulted by you and Gosland, bundled into the back of his own car. Gosland got into the back seat with him, you drove the car, backing out into the road and then drove off. Gosland then started to punch and kick the victim and Gosland produced a knife. He told the victim to give him money or he would be killed. The victim's wallet was taken from him and, according to the victim, $200 cash that was in his wallet was taken from him.
5 As you were driving the vehicle, the victim was asked to produce a cash point card so that he could be taken to a bank where you would obtain further money from his account. He said that he did not have a card and then a demand was made of him to produce his wedding ring and his watch. He could not get his wedding ring off his finger and it seems that the watch was not of a kind or value that was thought sufficiently useful for Gosland to take from him.
6 During the journey, he was further assaulted. The prosecution have tendered photographs which are Exhibit C and they show that the unfortunate Mr Denomi was badly bruised around the face. It seems, from his victim impact statement, that he had a chipped tooth, and suffered a broken nose and bruising around his head, particularly his right eye.
7 Eventually, the vehicle broke down at Chirnside Park. You and Gosland left the vehicle and took a taxi to Mooroolbark railway station and caught a train to Ringwood, where you were picked up by Kilpatrick and the witness, Dunlop.
8 The prosecution have also tendered a victim impact statement prepared by Mr Denomi which shows that, quite apart from the physical injuries, he bears the mental scars and it is likely that those mental scars will remain with him for a long time.
9 Turning to matters personal to you, your counsel tendered on your behalf a report from Mr Jeffrey Cummins, psychologist, dated 14 February of this year, which is Exhibit 1 and a report from an alcohol and other drug counsellor of the Eastern Drug and Alcohol Services dated 21 February 2013. You were attending that organisation for counselling in relation to your drug abuse during the period when you were on bail. It was a part of your bail conditions.
10 The report of Mr Cummins conveniently sets out a deal about your background. You are nearly 36 years of age. You are from a loving and caring family. You were introduced to heroin by a boyfriend of one of your sisters when you were 18 years of age.
11 Your schooling was not terribly successful. You were something of a slow learner and you left the Knox Technical School when you were aged 15 and a half. You then worked for Wilson Sheetmetal in Mitcham for two years and, when aged 17, you commenced a carpentry apprenticeship. You have subsequently worked as a sub-contracted carpenter intermittently.
12 Prior to meeting Ms Kilpatrick in mid-2011, you had been employed as a carpenter for about 14 months. Indeed, one of the references provided as part of Exhibit 3 is from Mr Matthew Old, who is the director of Yarra Valley Constructions, for whom you worked in that period. He and the other persons who have written references on your behalf, family members and one other former girlfriend speak well of you and it seems that you are capable of not just holding down a job but being a good worker. Also, it seems you have many good qualifies which, to some extent, have been masked or marred by your drug use over the years. Your counsellor described you as a functioning heroin addict and whilst no doubt you are to be regarded as a heroin addict, it would seem that the degree of your addiction has enabled you to control your intake of heroin to a significant degree and not, up till at least fairly recent times, significantly interfere with your capacity to work.
13 The picture that is presented from Mr Cummins' report and from what your counsel has told me, and which I accept, is that once you became involved with Ms Kilpatrick, your interest in heroin increased and your interest in work decreased. It seems that that, along with your association with Mr Gosland which apparently began in 2010, is a significant contextual factor leading to your participation in this offending conduct.
14 It seems to me from my reading of Mr Cummins' report, that what you told Mr Cummins about the offending had a ring of truth about it, that it was Ms Kilpatrick and Ms Gosland who had organising the kidnapping and the assault and you were drawn into the arrangement by them. I note, in passing, that the draft witness statement that was prepared yesterday to enable the prosecution to determine whether you would or would not be a useful witness in the case pending against Messrs Kilpatrick and Gosland, does not provide much in the way of detail and does not conform with the account that you gave Mr Cummins, at least in important detail. As I say, the net effect, it seems to me, of what you told Mr Cummins is that you would not have committed this offence if it had not been for your association with, in particular, Ms Kilpatrick and with Mr Gosland.
15 Whilst you were a willing participant in the offending, it is unlikely that you would have committed offences of this kind, it seems to me, had it not been for the association that you had with those two persons. Your expectation, all three of you, was that you would get enough money to buy heroin. It was that mutual interest in heroin that was one of the motivational factors in the plan that was hatched and your participation in it.
16 You told Mr Cummins that you felt embarrassed and ashamed regarding your offending behaviour, that you did not regard yourself as a violent person and that you committed the offending under circumstances where you were displaying a misguided sense of loyalty to Ms Kilpatrick. I suspect that all of that is true and, whilst you must bear your full measure of responsibility for what took place, your previous record does not suggest that you were an instigator of this conduct. Rather, it would suggest that this is conduct which is generally to be regarded as out of character as far as you were concerned.
17 So far as the balance of Mr Cummins' report is concerned, I will not attempt to do it full justice but it seems to me that Mr Cummins is saying that there is no mental impairment such as would bear upon your moral culpability for this offending. You do have depressive symptomology, but that is not relevant to the offending conduct. He concludes that there was a nexus between your drug use and your offending behaviour and, as I understand it , he concludes that from what I have just described as the context and the mutual interest you had in heroin use with your co-offenders. But he does not suggest that that should be regarded as impacting upon your moral culpability for the offending conduct.
18 You have pleaded guilty. You have saved the community the cost of a trial and you have facilitated the course of justice and prevented the witnesses from having to come to court and give evidence in your trial. I think your plea is consistent with the proposition that you are remorseful and ashamed of your conduct. It is acknowledged that the offending conduct is serious, your counsel made no bones about that. Nor, I think fairly, has she sought to minimise your participation in it, although endeavouring to frame that in the context of you not being part of the planning of the offending conduct.
19 She also urged me to give you an appropriate discount for your provision of a draft statement yesterday which tends to implicate your co-offenders. She submits, on your instructions, that that draft statement provides a frank account of what took place and your involvement and knowledge of the relevant events. I find that impossible to accept, having regard to the account that you gave to Mr Cummins which, in important detail, in a significantly greater way, implicates your co-offenders in the planning of these events to which you have pleaded guilty.
20 The prosecution has indicated that they do not regard the draft statement as being of any use and would not call you as a witness of truth. In those circumstances, I am not persuaded that I should give you any credit or reduction of sentence for provision of this draft statement which, I understand, you are now willing to sign. Although the prosecution seems not particularly interested in having your signature upon the document because they do not regard it as a full and frank account of what took place.
21 I do not for a moment hold that against you and I certainly will not use it as an aggravating feature of your offending conduct. But I cannot use it either as a factor which mitigates the sentence that is appropriate based on the balance of other sentencing principles.
22 I regard the kidnapping offence and the assault upon Mr Denomi as serious offences of their kind. The fear that your conduct must have instilled in him, being snatched as he was by the two of you, assaulted and given a fair beating, and not knowing how it was all going to end up particularly since the conduct to which you were a party involve Mr Gosland threatening his life. He could not have know as you were driving him around whether that threat would be carried out. All in all, it is not surprising that the impact upon him, according to his victim impact statement, has had on-going emotional consequences.
23 The maximum term of imprisonment for kidnapping is 25 years; the maximum for intentionally causing injury is ten years; and for theft is ten years. The whole episode was an appalling and evil course of conduct on the part of all of those involved, including yourself. No wonder you are ashamed, you should be.
24 Not only does Parliament regard kidnapping as a very serious offence, but clearly it is an offence where the need for general deterrence, that is deterring others from engaging in similar conduct, must play a significant role in the selection of an appropriate sentence. I regard the intentionally causing injury offence as serious also. I have to be careful not to punish you twice or three times for what really amounts to an integrated course of conduct that you engaged in pursuant to the advance plan. It seems to me that the assault is such that it warrants some degree of cumulation of sentence in order to achieve a just total effective sentence.
25 I am required to punish you adequately for the offending conduct, to express the denunciation of this court of your conduct, to pay proper regard to general deterrence in particular and pay appropriate regard to individual deterrence, that is deterring you. I have to say that I do not regard that as being as significant in this case as general deterrence. Your engagement with the Eastern Drug and Alcohol Service would suggest that you do have reasonable prospects of rehabilitation and if you are able to address your heroin addiction, it seems you have every prospect of leading a decent, honest and productive life. It will depend greatly on your approach to dealing further with your heroin addiction. The outcome of those efforts, I think, will dictate how successful you are in the future in staying out of trouble and holding down a worthwhile job using your carpentry training, skills and experience.
26 I need to balance those other sentencing considerations against facilitating your rehabilitation as far as I reasonably can. As I say, I do think you have reasonable prospects of rehabilitation.
27 Doing the best I can to balance all of those matters, I now proceed to sentence you.
28 Michael Patrick Murphy, for the offence of kidnapping, Charge 1, I convict you and sentence you to imprisonment for four years; for the offence of intentionally causing injury, Charge 2, I convict you and sentence you to imprisonment for a period of two years; for the offence of theft of cash, I sentence you to imprisonment for six months. I order that the sentence on Charge 1 is to be treated as the base sentence and that six months of the sentence on Charge 2 be served cumulatively upon the sentence upon Charge 1, making a total effective sentence of four years and six months and I order that you serve a period of two years and nine months before you become eligible for parole.
29 But for your pleas of guilty, I would have sentenced you to a total effective sentence of six years' imprisonment, with a non-parole period of four years' imprisonment.
30 I declare that pre-sentence detention of 17 days is to be reckoned as time served on the sentences that I have imposed and deducted administratively from the sentence you will be required to serve. I direct that those facts be noted in the records of the court.
31 The prosecution has also applied for an order that you undergo a forensic procedure by taking a scraping from your mouth or a blood sample and that application is not opposed and, in all the circumstances, I grant that application. You will be requested by an authorised officer for a scraping from the inside of your mouth. If you provide that then all well and good. If you fail or refuse to provide that, the officer will be authorised to take a blood sample from you and to use reasonable force in order to obtain that sample. I am sure you will not put them to that trouble. Do you understand?
32 PRISONER: Yes.
33 HIS HONOUR: I have signed the drafts that you have provided. Are there any other orders that I need make?
34 MS FLYNN: No, Your Honour.
35 HIS HONOUR: I will hand the orders in triplicate that I have signed.
36 MS FLYNN: Thank you.
37 HIS HONOUR: Thank you both for your health.
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