Director of Public Prosecutions v Murray
[2025] VCC 76
•6 February 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
KOORI COURT
CR 24-01742
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARLEY MURRAY |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 December 2024 |
DATE OF SENTENCE: | 6 February 2025 |
CASE MAY BE CITED AS: | DPP v Murray |
MEDIUM NEUTRAL CITATION: | [2025] VCC 76 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Aggravated home invasion, possession of drug of dependence, unlicensed driving, possess prohibited weapon, failure to comply with order to provide access to phone, plea of guilty, childhood disadvantage, Bugmy mitigation, Verdins,
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Verdins [2007] VSCA 102, Bugmyv R (2013) 302 ALR 192
Sentence:Imprisonment – Total Effective Sentence – 3 years and 7 months imprisonment, Non-parole period – 3 years, Forfeiture Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. Hogg | Mr N. Cescato |
For the Accused | Ms S. Stanley | Mr D. Ajak |
HIS HONOUR:
1Harley Murray, you have pleaded guilty before me in the Koori Court to a charge of aggravated home invasion. This is a charge which carries a maximum penalty of 25 years' imprisonment. It is also a category 1 offence, which means I must impose a custodial sentence with a minimum non-parole period of at least three years unless a special reason exists. You have also pleaded guilty on indictment to an offence of possess cannabis, which has a maximum penalty of five years' imprisonment. You have admitted three related summary offences: unlicensed driving, possess prohibited weapon and failure to comply with an order to provide access to your phone. That offence carries a maximum penalty of two years' imprisonment; unlicensed driving, a maximum of six months; and possess prohibited weapon, a maximum of two years.
2You have a relevant criminal history although it is not as lengthy as many your age who come before the court for similar offending. It was conceded by the prosecution that it was relatively limited. It does involve a prior conviction some nine years ago in this court in relation to armed robberies, for which you received a sentence of imprisonment of 14 months in combination with a community corrections order.
3The circumstances of your offending are set out in the summary of prosecution opening dated 16 December last year, which was Exhibit A on this plea and forms part of these reasons for sentence. In brief, you and others attended – due to prior agreement, clearly – at an address in Trafalgar Street in the early hours of 18 April last year at around 4.10 am. That time is significant due to the terror it would have caused the occupants of that premises.
4You and your co-offenders attended in two vehicles. You approached the front door in company, armed and wearing gloves and face masks. You were carrying a black pry bar. Other co-offenders were armed also, one with a bypass lopper and one also with a pry bar. You used the pry bars to force entry to the property, causing damage to the door and frame.
5There were four occupants, and they woke up due to the banging at the front door. The noise stemmed from, clearly, you breaking your way in. You opened the door to one of the victims' room – or tried to. They were using their body as a barricade and were successful in refusing entry to you. Meanwhile your co-offenders tried to gain entry to another victim's room. That victim was told, 'We won't hurt you, come out', and when he came out, the
co-offender said, 'Where's the weed? Where's the money?' it becoming clear at that stage what the objective of your escapade was.6You then went to another bedroom, occupied by victim Richards. That door was locked. You used the pry bar to force entry, but you were unsuccessful. You then kicked the door, causing it to open. You stayed in the doorway and demanded of the occupant where the weed was. There was a cursory search of the property, including force used to gain access to other bedrooms. It became clear that there was not any weed or marijuana for you to seize, and you left the address, telling the victims not to call the police.
7An investigation followed. Your premises at First Avenue, Melton, was the subject of a search warrant. You were in attendance, and your premises and possessions were searched. A mobile phone was seized, Bandidos Outlaw Motorcycle Gang patches, black knuckledusters and two Ziploc bags containing cannabis and two large bags containing green vegetable matter, also a large tub containing green vegetable matter. Police asked for the password to the Samsung Galaxy phone that was seized, and you failed to comply with that direction. Access was later obtained on the phone using police services. You were arrested, and an interview was conducted, and you answered no comment.
8I was not provided with any victim impact material in relation to this matter, but nevertheless, objectively, one can see it would have been terrifying for your victims to have their home broken into in the early hours of the morning, and the court would expect there to be lasting psychological impact, but beyond that I am unable to assess the impacts upon the victims.
9The objective gravity of your offending is at least medium for this offence, and the prosecution agree with that defence submission. Parliament has seen fit to set down a maximum penalty of 25 years for this offence, and that reflects its gravity and the way in which it is viewed by the community. Parliament has also made this offence a category 1 offence, and that is also reflective of the seriousness with which it is viewed. Part of the objective seriousness of your offending relates to the circumstances of entry and the time of night it was, as I have mentioned, early hours of the morning. You attended in company, armed, broke your way in, faces covered. All of those circumstances are reflective of the objective gravity of the offending. There was no assault perpetrated on the victims in this matter. Had there been, it would have been a more serious example, and it is relevant also that once it became apparent to you and your co-offenders that your demands were not to be satisfied, you did not linger at the property.
10Turning to your personal circumstances, your childhood and upbringing involved some significant disadvantages. These are set out in the psychological report of Sandra Cokorilo. They are also set out and summarised in Ms Stanley's very helpful outline of submissions, which was Exhibit 1 on the plea.
11There was instability in your upbringing. You were raised primarily by your grandparents, who provided a stable environment, but your father was absent. I was told he had no presence in your life and your development. Your mother had issues with substance abuse. Your nurturing and development from a young age was hampered by this. Raised by your grandparents, their son, your uncle, was also present in that home. Sadly, he passed away by his own hand some 10 years ago, and that had a profound impact upon you because you were very close with him. From about the age of 18, I was told that you were out of the family home and were, for want of a better term, couch surfing, and your substance abuse appears to have escalated at this time. I will not go into further detail in relation to all the aspects of your childhood and development. Ms Cokorilo stated at paragraph 73 of her report:
Disrupted attachment due to neglect and rejection from caregivers undermines the ability to form trusting and stable relationships, leaving individuals vulnerable to feelings of isolation, abandonment and emotional dysregulation. These unresolved emotional struggles increase the risk of substance use as a maladaptive coping mechanism to
self-medicate symptoms of trauma such as hyperarousal, emotional numbing and distressing memories. Further, exposure to substance use normalises maladaptive coping behaviours, modelling substance use as an acceptable strategy to manage life stressors.
12I accept that opinion and its relationship to the factual matters that were before Ms Cokorilo in relation to your background.
13In the lead-up to this offending, you had been living in a private rental, with your daughter visiting on weekends and during school holiday periods. Your daughter, who I will not name in these reasons for sentence, is a great source of strength and motivation for you. There was significant discussion during the sentencing conversation in relation to your profound love and care for your daughter, and family members also spoke of this as a strong motivating factor for you, once this matter is behind you, to deal with your vulnerabilities to substance use, to address your mental health frailties and return to work and being a productive member of society and a supportive father. I have got no doubt you have got reasonable prospects of doing so, and you have shown in the past that you have a strong ability to work and engage in work. Prior to this offending, you had obtained a new job as a gasfitter. You were still working in relation to the tattooing business.
14Significantly, you lost your grandfather suddenly on 27 March 2024, some three weeks prior to this offence, and as I have touched on, and as the materials expand upon, your grandfather was a very important role model for you. You regarded him as one would a father. Your grandfather brought you up substantially, so this loss was overwhelming for you. Ms Cokorilo notes that whilst grief and loss are universally distressing, they are particularly destabilising for an individual such as Mr Murray with a history of PTSD and borderline personality disorder [sic]. I accept that the loss of your grandfather had a profound impact upon you and that you were still very much in a state of grief when you engaged in this offending, and in some way those events are connected to your offending and coming before me.
15You have struggled with what I will broadly refer to as mental health issues and substance use. Substance use is related to your mental health and trauma background. I have no doubt in finding that. The history which I have just touched upon, the personal history, the details of which are contained in the materials, allows for some application of the Bugmy[1] principle, and I do so.
[1]Bugmy V R (2013) 302 ALR 192
16You participated in the Koori Court sentencing conversation with Auntie Fay Muir and Uncle Jim Berg. You participated fully. It was an extensive and very useful conversation from the court's point of view. I was able to make assessments of what I find to be your genuine insight into the factors that brought you into custody, remorse, but in particular a genuine desire to break with the past and, once this matter is behind you, embark on a productive future in particular in relation to being a role model and providing support for your daughter. You were quite open about the drug issues, and you were also open about how you thought it would feel for the victims to have people enter their home at that time, and you talked about the traumatising effect of that upon them, and I am satisfied that you are appropriately remorseful for that.
17It was raised with you, engaging in grief counselling, and there was lengthy discussion about your family and your family history and the extremely positive and strong role models and leaders in your family history, and you were urged to draw some inspiration in relation to that. Uncle Jim spoke to you about the benefits of work and the importance of getting satisfaction out of work and urging you to, when you are able, resume in gainful employment because you have demonstrated in the past – whether it be cabinetmaking, bricklaying, even a different line of work, sales and marketing, you have shown an ability to engage in gainful employment, and that is a key to your prospects of rehabilitation. Your cultural identity and your history were also spoken about at length, and you indicated a desire to renew or deepen and connect your ties to culture.
18It is acknowledged that participation in the sentencing conversation is a harder process than in a general list process where one has someone speak on their behalf. You have got to take accountability. There is an element of shaming that takes place. And importantly, you using your voice enables the court to make an assessment of your genuineness. All of those factors apply in your case, and your sentence is mitigated accordingly, as it is for your early plea of guilty.
19In relation to other sentencing considerations, from a sentencing perspective, the most prominent issue which needs to be grappled with is the mandatory minimum three-year non-parole period and its implications and the exception to its application that is advanced on your behalf by Ms Stanley. It is submitted that the special reasons set out in s10[2] of the Act apply in your case. It was submitted that subject to sub-s(2)(a)[3], at the time of the commission of the offence, you had impaired mental functioning causally linked to the commission of the offence, which substantially and materially reduces your culpability; additionally and in the alternative, that your impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
[2]Sentencing Act 1991
[3]Sentencing Act 1991
20What was relied upon in that regard was essentially the personal history and the findings of Ms Cokorilo in her report. In particular, in relation to the first limb, at paragraph 107, Ms Cokorilo states:
His current offending is attributed primarily to the combined effects of PTSD and BPAD, which, in the context of acute grief, had created a convergence of factors that diminished his ability to act with restraint and rational judgment. Emotional dysregulation from PTSD coupled with hypermanic tendencies toward impulsivity and disinhibition in BPAD would have significantly increased a susceptibility to reckless behaviour, thereby contributing to his offending.
21In relation to the alternate limb, Ms Cokorilo stated at 109:
It is noted that Mr Murray's BPAD, generalised anxiety disorder and PTSD result in hypervigilance, intrusions, emotional reactivity, depressive and hypermanic episodes and chronic worry, which would make imprisonment substantially more burdensome for him than a person without his conditions due to his inherent sensitivity to the high-stress, unpredictable and often violent environment of a custodial setting.
22Ms Stanley also relied upon Ms Cokorilo's reference to moral culpability at paragraph 101:
Whilst his grief and psychopathology do not preclude him from understanding the nature and wrongfulness of his offending conduct, the resulting exacerbation of his chronic psychopathology in the context of acute grief is considered to have substantially reduced his moral culpability by impairing his capacity for clear thinking and rational decision-making and his ability to exercise appropriate judgment and
self-control.
23The provisions require me to make an assessment – that is, the court to make an assessment – based on all of the material as to whether the test is made out; and, in the context of the special reason that is advanced, whether under the first limb the moral culpability is substantially and materially reduced; and, under the second limb, whether the experience in custody would be substantially and materially more burdensome.
24First, of course, the court has to be satisfied of a causal link or that each of those limbs at the first instance apply, and I will make clearer what I mean by that in a moment. I do find that there is a causal link between the conditions set out by Ms Cokorilo and the offending and also that imprisonment will be more burdensome for you due to the factors set out by Ms Cokorilo. However, I am unable to find – and I will expand on the reasons why I am unable to find – that each of those factors applies to the requisite degree such as to make out the special reason.
25Ms Cokorilo's report, outside of her opinion, touches on some important matters which I have taken into account in relation to my assessment of the relevant sentencing considerations overall. In particular, at paragraph 40, she referred to the diagnosis of bipolar disorder – my apologies, I erroneously referred to that as borderline personality disorder moments ago. I meant to say bipolar disorder:
He reported chronic depression since he can remember, which he attributed to loss and grief, noting that many of his relatives and friends have died. He reported that he was particularly impacted by his uncle's suicide in 2014, noting that he was like a father to him. He informed that shortly before his uncle died, he lost a close friend in a train accident. He also informed that another friend was stabbed to death, and another has committed suicide. Further, he informed that one of his closest friends died in 2023, and his grandfather in 2024. He reported that he has never sought counselling for his grief.
26I have no difficulty finding that those traumas have had a cumulative effect upon you and are of significance in assessing your make-up and assessing your culpability in relation to this matter. At 48, Ms Cokorilo stated you reported a family history of bipolar affective disorder and PTSD with your mother and stated that one of your sisters likely suffers from BPAD, and you referred to other family issues in relation to mental health. At
paragraph 51-52, Ms Cokorilo set out your criminal history and the circumstances surrounding involvement with the criminal history, and I have taken those reports into account in assessing your prospects of rehabilitation.27Ms Cokorilo helpfully set out the circumstances leading up to the offending. At paragraph 53, she stated:
Mr Murray informed that in the months leading up to the current offending, he was making positive changes in his life, as he wanted to create better circumstances for his daughter and himself. He reported that he commenced a new role as a gasfitter, and his grandmother informed that he was excited and proud about it. She reported that she was in discussions with Mr Murray about them jointly purchasing a home for him and that she was shocked when he offended. However, she noted that his grandfather died very suddenly on 27 March, and her grandson handled the funeral arrangements and management of his grandfather's property and affairs while he was deeply affected by the loss.
Mr Murray described his grandfather's death as the biggest loss of his life, noting that he was like a father to him and he felt that a piece of him died too. He stated that he was numb, depressed, angry, confused and 'wanted to explode, wasn't thinking right, wasn't myself'. He reported that on the day of the offending, three weeks after his grandfather's death, he was contacted by associates and asked if he wanted to make money. He noted that he was advised that nobody would be at the premises, which was meant to be a cultivation house from which they would retrieve cannabis. He stated that for some reason he said yes.
28I have no difficulty accepting those matters.
29At paragraph 87, Ms Cokorilo went on:
Mr Murray is a 32-year-old male with a previous diagnosis of bipolar disorder and post-traumatic stress disorder. He has reported symptoms and results of the psychometric testing administered, and the current assessments are also indicative of generalised anxiety disorder. He described a history of disrupted attachment, parental neglect and rejection, exposure to alcohol and substance use and traumatic losses which are inferred to have played a key role in the genesis of his psychopathology.
Early experiences of neglect or rejection undermine the development of a secure attachment system, which is a foundational element of emotional regulation and resilience. Attachment theory posits that early caregiving relationships shape how individuals manage stress and perceive safety. When these relationships are compromised, children are more vulnerable to developing maladaptive coping mechanisms and heightened sensitivity to trauma. Exposure to substance use and traumatic losses can further compound this vulnerability.
30Ms Cokorilo goes on at paragraph 90:
While Mr Murray has a genetic predisposition to bipolar – his mother reportedly suffered from bipolar – environmental factors such as early attachment disruptions, neglect and trauma also play a critical role in the onset and progression of bipolar. Chronic stress during childhood, especially in the context of neglect or rejection, has been associated with alterations in the brain's limbic system and reward pathways, which are implicated in mood dysregulation disorders such as bipolar disorder. Further, generalised anxiety disorder is often rooted in chronic exposure to stress and insecure environments during childhood.
31At 92:
It is important to note that Mr Murray's history of trauma, disrupted attachment, parental neglect and exposure to substance use in combination with comorbid generalised anxiety disorder, PTSD and BPAD creates a high-risk developmental trajectory for the onset of substance abuse and involvement with antisocial peers. This relationship is well documented in forensic and psychological literature and can be understood through several interconnected pathways.
32I have no difficulty accepting those findings, and Ms Cokorilo goes on to talk about the loss of your grandfather and then arriving at paragraphs 101 and 102, to which I have already referred during my summary of your legal representative's submission in relation to this matter.
33I accept, as I have stated, the findings of Ms Cokorilo that there is a causal relationship between the constellation of factors involving your grief reaction, BPAD, GAD, PTSD and associated emotional dysregulation and your susceptibility to becoming involved in the criminal escapade at this stage. You were asked to become involved, and I accept that your defences were down at that point. You were at a low point in your life, and you were more susceptible to the impulsivity given the emotional point you were in.
34I am satisfied that the application of Verdins principles results in your moral culpability being assessed in light of these factors and reduced in comparison to the norm; that is to say that your moral culpability for engaging in the offending is less than it would be for another who could not demonstrate these causal links. I do not accept, however, that the operation of these factors in circumstances as described by Ms Cokorilo substantially and materially reduces your moral culpability. That is in my assessment of it, and of course, it is the court's assessment that must be made.
35I also accept Ms Cokorilo's opinion as to your experience in custody and that it would be more burdensome and harsher than it would be for another who is not afflicted with BPAD, GAD and PTSD, and your sentence is moderated accordingly. But in my assessment, these factors do not reach a description of imprisonment being substantially and materially more burdensome for you than the ordinary burden or risks of imprisonment.
36It follows from my assessment of these tests and the materials that I am not satisfied a special reason exists to exclude the operation of the mandatory provision. As I have stated, your sentence is nonetheless moderated substantially due to the application of Verdins[4] principles, the application of the Bugmy principle, what flows from your participation in the sentencing conversation, your early plea of guilty and your prospects of rehabilitation, which I assess as good. I must impose a sentence that has regard to general deterrence, specific deterrence and community denunciation of your offending. The mandatory provision applies given the findings I have made, and I note in passing were it not for the mandatory provision, I would have imposed a non-parole period of less than the three-year period.
[4] R v Verdins [2007] VSCA 102
37Taking all of the relevant sentencing factors into account, as I must, I sentence you as follows, Mr Murray. On the charge of aggravated home invasion, you are sentenced to three years and six months' imprisonment. In relation to Charge 2 on the indictment, you are sentenced to one month imprisonment. In relation to the related summary offences: unlicensed driving, one month imprisonment; possess prohibited weapon, seven days' imprisonment; and failure to provide, when directed, the access to the phone, four months' imprisonment.
38One month of the sentence imposed on the summary offence of failure to provide will be served cumulatively on the base sentence, which is the sentence imposed on Charge 1. That makes a total effective sentence of three years and seven months' imprisonment.
39I set a non-parole period of three years.
40I declare pursuant to s18 of the Sentencing Act[5] that you have served 227 days as pre-sentence detention.
[5] Sentencing Act 1991
41Pursuant to s6AAA of the Sentencing Act[6], were it not for your pleas of guilty, I would have sentenced you to a total effective sentence of five years' imprisonment with a non-parole period of three and a half years.
[6]Sentencing Act 1991
42Are there forfeiture orders sought in this too?
43MS HOGG: Yes, Your Honour.
44HIS HONOUR: Yes, I make the forfeiture orders that are sought.
45MS HOGG: Thank you.
46HIS HONOUR: Are there any other orders that I need to make?
47MS HOGG: No, Your Honour.
48HIS HONOUR: No, all right. We will adjourn the court.
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