Director of Public Prosecutions v Murray

[2021] VCC 932

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01724

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARL MURRAY

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2021
DATE OF SENTENCE:	12 July 2021
CASE MAY BE CITED AS:	DPP v MURRAY
MEDIUM NEUTRAL CITATION:	[2021] VCC 932

REASONS FOR SENTENCE
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Subject:THREAT TO INFLICT SERIOUS INJURY

Catchwords:              Koori Court – sentencing conversation – remorse - disadvantaged background – utilitarian benefit of plea of guilty – further discount for plea during currency of COVID-19 pandemic - good prospects of rehabilitation

Cases Cited:Bugmy v R [2013] 302 ALR 192.

Sentence:                  Term of imprisonment of 266 days reckoned as already served

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr E Dober	Office of Public Prosecutions
For the Accused	Mr C O’Bryan	Emma Turnbull Lawyers

HER HONOUR:

1Carl Murray, you have pleaded guilty to a single charge of make threat to inflict serious injury. You consented to have your plea heard before the Koori Court and participated fully and genuinely in the sentencing conversation held earlier today. You expressed genuine remorse for your offending and empathy for your victims. Your partner and sister told us how much you have changed since entering the Cottage’s rehabilitation program, and how committed you are to staying drug free and making a positive life for yourself.

2The circumstances of the offending were set out in the Prosecution Opening on the Plea, and the prosecution submissions on sentence were also tendered. You admitted your prior convictions. You agree that your conduct, committed while you were affected by methamphetamine, is serious and that your 18-year-old victims would have been very frightened by your threat from the back seat of the car, spoken to your co-accused, who was armed, to “just shoot them, get it over and done with”.

3You spent 266 days in custody for the present offending. You were not able to receive visits due to the COVID-19 pandemic, and were in lockdown at various times. However, at the Marngoneet Correctional Centre, you worked as the head of the recreation centre, organised sports, and completed courses in personal training, computer studies and traffic management. After being granted bail on 27 October 2020, you were admitted to residential rehabilitation at The Cottage, until 21 June 2020. During that time, you disconnected with your old associates and lifestyle, addressed your drug, anger and communication issues, and demonstrated a commitment to turning your life around. You volunteered at the Cottage, mentored newcomers and assisted staff. You returned negative urine screens during this period. Since exiting the program, you have been living with your sister and her husband and child. You are very close to them. You have not been drinking or taking drugs. You are receiving the Jobseeker allowance and have been helping your sister with the costs of running the household, and are doing all the household chores. You also help to look after Isabella, your sister’s one-year-old daughter.

4You have completed 3 months of a Certificate IV in community services, and you hope to become a youth worker. The course will require 100 hours of placement with a service provider before the end of October 2021. Ms Hutchison has indicated that you will be welcome to do your placement at the Cottage.

5Your counsel tendered a bundle of documents from the Cottage, an in-residence drug rehabilitation facility whose intensive program you attended for seven and a half months after being released from the Marngoneet Correctional Centre on 27 October 2020. Ms Hutchison, the CEO of The Cottage and the author of all the letters and reports tendered on your behalf, gave evidence that you were an outstanding example of the success of the drug rehabilitation program they offer. She said that you transitioned from being an angry boy to a responsible man, mentoring others and taking on responsibilities. She said that even though you were exited from the transitional program in June this year, partly for drinking alcohol, you have not relapsed into drug use and are welcome to keep attending the program there at 11am, 4 days per week, indefinitely, on Zoom. The Cottage is keen to help support you for as long as you need it. You indicated that alcohol has never been your problem, only an addiction to methamphetamine which you started using in your early 20’s.

6You are 31 years old and have a three-year-old son who lives with his mother in Ballarat. You have not had contact with him for two years but are now seeking access to him. I note that your background was particularly traumatic and disadvantaged. You were born in Perth. Your mother and step-father were addicts who were physically and verbally abusive towards you and your sister. You lived in 4 different foster care placements between the ages of 6 and 10. You moved to Ballarat at the age of 10, and left school in year 11. You moved back to Perth where you worked as a trade assistant, During your twenties, while living in Ballarat and addicted to methamphetamine, you were convicted of a number of dishonesty, driving offences, possession of controlled weapons, and contraventions of court orders, for which  you had over the years received a number of terms of imprisonment, largely spent in pre-sentence detention, before the current offending.

7In the sentencing conversation with Aunty Fay Muir and Uncle David Farrall, during which you were emotional at times, you said that from childhood you were always angry, because your parents only ever showed anger towards you. You did not understand your own anger until you participated in the program at the Cottage. Having learned to understand it, you then were able to learn a more productive way to express your emotions. For the first time in your life, at the program, people there looked up to you for the right reason. Your sister spoke most movingly about your transformation, and your partner confirmed this.

8I accept that denunciation, just punishment, specific and general deterrence are all important sentencing factors.

9It is clear that your disadvantaged background enlivens the principles of Bugmy[1] so as to reduce your moral culpability in your offending and be treated as a mitigating factor. It also reduces the need for general deterrence.

[1]        Bugmy v R [2013] 302 ALR 192.

10Your plea of guilty has saved the community time and expense and carries an added utilitarian benefit in the context of the COVID-19 pandemic and the backlog of cases in the court. In addition, you expressed heartfelt remorse for your offending, and empathy for your young victims. You are also entitled to a discount for your participation in the sentencing conversation with the Elders.

11The progress you have made in rehabilitation to date also reduces the risk of reoffending as well as the weight which needs to be given to specific deterrence.

12I consider it appropriate, given the progress you have made in rehabilitation, to give significant weight to rehabilitation in sentencing you. I consider that your prospects of rehabilitation are good, in the light of a number of factors. You are drug free for the first time in your adult life. You used your time in residential rehabilitation to come to terms with your anger and addiction issues, and did voluntary work there as well. You are committed to completing your Certificate IV and becoming a social worker and to becoming a role model for your son. You have strong support from your partner and from your sister.

13The prosecution submitted that a combination sentence involving the imposition of a sentence of imprisonment equivalent to time served plus a Community Correction Order (“CCO”) would be an appropriate disposition. The submission in favour of a CCO was based on your extensive criminal history during your years of drug addiction, and the recency of your exit from the rehabilitation program at the Cottage. It was submitted that your risk of relapse and reoffending would be reduced with ongoing supervision and a treatment order.

14I note that Ms Hutchison indicated that The Cottage will continue to support you indefinitely and that you are welcome to attend its 11 am program 4 days per week by Zoom. Moreover, you have excellent supports in the community in your partner, your sister and her family. I note that in addition to the time spent in custody, you also spent over 6 months at a residential facility, where there were some restrictive and punitive mechanisms in place.

15For these reasons, I am satisfied that all the relevant sentencing principles can be met by the imposition of a straight term of imprisonment.

16Please stand, on the charge of making threat to inflict serious injury, you are convicted and sentenced to 266 days’ imprisonment. I declare that 266 days of pre-sentence detention is to be deducted administratively from this sentence.

17I declare pursuant to s.6AAA of the Sentencing Act that, but for your plea of guilty I would have imposed a sentence of 18 months’ imprisonment with a non-parole period of 12 months.