Director of Public Prosecutions v Murray

[2013] VCC 1437

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00473

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRAD MURRAY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 September 2013
CASE MAY BE CITED AS:	DPP v. Murray
MEDIUM NEUTRAL CITATION:	[2013] VCC 1437

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. O'Halloran	Office of Public Prosecutions
For the Accused	Mr G. Gidley

HIS HONOUR:

1       Brad Murray, you have pleaded guilty to five charges of obtaining a financial advantage by deception.  That charge carries a maximum penalty of ten years' imprisonment.

2       You are 39 years of age, and importantly, have no prior conviction.  You have, for this offending, a good work record.

3       You have two small children and are endeavouring to save a marriage.

4       I accept that your plea of guilty was made at the earliest reasonable opportunity in that you were co-operative with your former employers and indeed confessed to police upon being questioned.  You have displayed appropriate remorse and you must also, of course, get the utilitarian benefit of that plea of guilty.  Trials such as this, whilst they may appear simple when they are summarised, are often time-consuming and difficult to run.

5       The circumstances of the offending can be described in brief and I will annexe the Crown opening to my sentencing remarks for anybody with a genuine interest who requires more detail.

6       Essentially was occurred was that between March 2009 and May 2011 you were working in the payroll section as a manager with The Herald & Weekly Times.  That role enabled you to make false entries and claims into the payroll system.  Over that period of time, with a significant number of different transactions, you were able to obtain for yourself a financial advantage of something in the order of $124,000.  That is a significant amount of money.  Clearly in situations such as this where an employee is stealing from an employer, despite the size of the employer, amounts to a breach of trust.  It also occurred over an extended period of time, and whilst I can understand when the particular instances occurred that were not of great moment but they can add up, it still is persistent offending.

7       The five charges are all rolled up.  It is a situation where, after having discussed it with counsel, the simplest way of dealing with it is to impose an aggregate sentence rather than go through each one, as they are simply broken up into effectively arbitrary periods of time.

8       Where there is a breach of trust, where there is an amount in excess of $100,000 the crime must be regarded as serious and in the normal course of events calls for the application of general and specific deterrence, as well as denunciation and punishment.  In your particular situation I do not think that specific deterrence are a particular problem, but obviously whenever an employee steals, general deterrence are significant.

9       I note that the entire amount has been repaid to The Herald & Weekly Times.  I am aware of the authority that says you cannot simply buy your way out of a custodial sentence, but I, nevertheless, take that into account as a mitigating factor.

10      So far as matters personal to you are concerned, as I have indicated, you have no prior convictions, you are married and you have two small children.  You are now gainfully employed and there is no reason why you should not be able to rehabilitate and the risk of you re-offending should be slight.

11      Insofar as the offending was concerned, even after you had been detected and confessed, you did not tell your wife for a period of months, you went through the charade of dressing and pretending that you were going to work every day.  It is difficult to understand how someone could live through a process like that, but as I indicated during the course of the discussion, I have seen it before.  In any event, your wife ultimately found out late in 2012. 

12      You were found to have a brain abscess in the front lobe situation which was then drained.  Whilst that, I am informed by counsel and am aware in any event, is the reasoning and judgmental aspect of the brain, there is nothing to suggest that that abscess was present during the course of the offending and came later.  You had seizures as a result of that and I accept that your health is not good.

13      So it comes down to where a matter has a certain degree of age to it what disposition is appropriate.  It was argued that a Community Corrections Order would be the appropriate disposition and I took some issue with that.  I do not see why the resources of the State should be wasted on somebody who in all probability does not need them.  This is a situation in which a suspended sentence can be imposed and wholly suspended.  Suspended sentences, despite what we are told these days, have been held by the Court of Appeal to amount to general deterrence and specific deterrence and the Crown do not oppose such a course being taken.

14      I think in your particular situation it is in the interests of justice that the sentence that I am, I think, obliged to impose, that being one of a custodial nature, should be wholly suspended.

15      Accordingly, on Charges 1 to 5, you are sentenced to be imprisoned for a period of 12 months.  I direct that that sentence be wholly suspended for a period of two years.

16      Pursuant to s.6AAA of the Act, just so you understand the benefit for the plea of guilty and an early confession has in these matters, it is difficult to see how you could have possibly fought this out as a trial, but if you had and been unsuccessful and convicted of these matters, because of the amount involved and the lack of remorse that would have therefore been displayed, you would have been sentenced to be imprisoned for 18 months with nine months to serve.  So you understand that your plea of guilty has given you a very significant benefit.

17      There are no other matters that I need to say at this stage, as I said, I will annexe the Crown opening and the matters in there speak for themselves.

18      The sentence is to be wholly suspended, as I have said, for a period of two years.  If you, during the course of that two years, commit any offence punishable by imprisonment then you will be brought back upon a breach.  You would have to show exceptional circumstances as to why that sentence would not be fully restored.  Can I say this to you, Mr Murray; if you do breach it and you are brought back before me for any crime involving dishonesty, the 12 months will simply be the starting point and you will do it.

19      Anything else to be said or any other orders that need to be made?

COUNSEL:  No, Your Honour.

HIS HONOUR:  Thanks, gentlemen.

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