Director of Public Prosecutions v Murray

[2018] VCC 1701

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

AT GEELONG
CRIMINAL JURISDICTION

CR 17-00889

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW MURRAY

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Geelong
DATE OF HEARING:	16 & 18 October 2018
DATE OF SENTENCE:	18 October 2018
CASE MAY BE CITED AS:	DPP v Murray
MEDIUM NEUTRAL CITATION:	[2018] VCC 1701

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Pleas of Guilty; Two incidents on same day; armed robbery; recklessly cause injury; threat to kill; initiator of first set of offending; lesser role in second armed robbery; drug addiction; subsequent diagnosis of schizophrenia; strong engagement in rehabilitation over last 22 months.

Legislation Cited: Sentencing Act (Vic) 1991
Cases Cited:            
Sentence:                  TES: 8 months imprisonment followed by 18 month CCO.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Solicitor for the Director of Public Prosecutions
For the Accused	Mr J. Toal	Mr D. Barrese

HER HONOUR: 

1Andrew Maxwell Murray, you have pleaded guilty to two charges of armed robbery, one of recklessly causing injury and one of making a threat to kill.  The maximum penalty for each charge of armed robbery is 25 years' imprisonment, for making a threat to kill it is ten years' imprisonment and for recklessly causing injury, five years' imprisonment.  I must take these maximum penalties into account as indicating the comparative objective seriousness with which Parliament, on behalf of the community, regards these offences.

2These charges all arise out of your conduct on 14 May 2016, in two separate incidents.

3In the first incident which occurred mid-afternoon, you went to an address in Corio where Mr Mark Curtis lived with his partner, Ms Marshall.  Visiting them that afternoon was a friend of Ms Marshall known as “Missy” Williams.  Mr Curtis had met you a couple of times previously when he had picked up Missy from an address where you also lived for a time.

4You arrived at Mr Curtis' home with another man and knocked on the door. 
Mr Curtis let you in, and you and the other man walked into the lounge room.  Mr Curtis headed back to the kitchen understanding that you wanted to speak with the women there.  He heard you become increasingly agitated and start yelling at the two women.  He then returned to the lounge room as he heard you yelling.  You aggressively told him to sit on the couch, and you were yelling about photographs of your deceased mother, that you thought one of the women had, as you say they disappeared from your bag while you were boarding where Missy also had lived.

5Mr Curtis then went to his bedroom, and the man who had accompanied you followed him, produced a single-barrel sawn-off shot gun, and pointed it at
Mr Curtis' head.  That man ordered Curtis to sit on the bed, threatening to blow him away.  You then entered the bedroom and yelled at Curtis, hitting him to the head, throat and face with a torch which had been on his kitchen bench, and with a bar that he had been using to keep the door closed. Your actions in hitting him give rise to the charge of recklessly causing him injury. 

6Meanwhile the other man was walking around holding the shotgun.  You then said to Curtis that you were going to take everything and he would “know what it is like to live in the gutter”.  You and the other man with you then went through the house stealing property and also smashing items such as ornaments.  The women were in the lounge room visibly upset and crying.

7Mr Curtis was held in the bedroom, bleeding from being hit by you.  You and the other man collected various items belonging to Curtis, including a wallet containing cash, a television, hard drive and car keys.  A purse belonging to Ms Marshall containing $220 and cards was also taken.  You and the other man then loaded these items into the Holden Commodore which belonged to Curtis, and for which you had taken the keys, and then you told him that that Commodore was now yours.  This conduct including the presence of the sawn-off shotgun being held by the man with you gives rise to a charge of armed robbery.

8Once the property had been loaded into the Commodore, you told Curtis that if he reported any part of this, he would be a dead man by morning.  You added that if it was not you and the man with you it would be 14 others behind you and you made out that you had done 15 years in gaol.  This is the basis of the charge of making a threat to kill, Charge 3 on the first indictment. 

9Mr Curtis was still in the bedroom blacking in and out of consciousness from being hit on the head. You and the man with you then demanded that Missy go with you.  She was crying but agreed to go.  There was more yelling at Ms Marshall.  Mr Curtis heard car doors and went to shut the front door and saw you get into his car with Missy, and drive away.  He then returned to the lounge room and tried to comfort Ms Marshall.  He had her call her ex-husband asking him to come and collect her to take her away to safety. 

10Mr Curtis then walked to the Corio police station to report this incident. While waiting there he was threatened by two unknown men and left and returned home.  It is not suggested that you were responsible for those men threatening him.  He must have reported something to police because they later came to his house and took a statement from him. 

11As a result of this offending, Mr Curtis sustained injuries to his back, jaw, nose and neck.  However, he did not seek medical attention.  He has not made a victim impact statement for this hearing, although offered the opportunity. None of the goods stolen from Mr Curtis that day have been recovered, including the Holden Commodore. 

12The prosecution discontinued charges against another man who had been charged as your co-offender, as it was unable to prove the identity of the other man with you. 

13You were involved in a second incident at approximately 8.15 pm that night.  You drove two other men to the home of Wayne Lunn in Norlane.  He had parked his silver 1999 BMW sedan under his carport, and when he went back out the front of his property, two males walked up his driveway and confronted him. One of them he recognised as Robert Duggan, but the other was wearing a mask and holding a gun which he pointed at Mr Lunn.  The gun appeared to be a homemade single-barrel sawn-off shotgun.  Those two men demanded Lunn's keys and wallet.  Being in fear, Lunn handed them to Duggan who then demanded Lunn pull up his sleeves and proceeded to take a watch and bracelet from him.  He then threatened Lunn that if he called the police, he (Duggan) would come back and shoot him. 

14While this was occurring, a third man tampered with the number plates on Lunn's BMW car.  The prosecution alleges that that was you, despite you telling police when you subsequently admitted involvement that you had been the driver and that you had not left the car.  Duggan then drove away from the property in Lunn's BMW car.  It is said the other men ran towards a black Commodore that had been parked down the street, and it turned and came towards them and they got into the Commodore and drove away. On that version, there may well have been a fourth man, but I make no specific finding as to whether you could have been both the person who tampered with the number plates, and the driver of the Commodore.  The Crown accepts that you were not one of the two men who confronted Mr Lunn, and that you were not the instigator of that overall set of offending. 

15Mr Duggan has been charged in relation to this incident, but his whereabouts are currently not known.  The man wearing a mask has not been identified.

16The morning after this incident, police observed Duggan in the stolen BMW and attempted to intercept him, but Duggan drove away at a fast speed.  Later that morning, Duggan drove the BMW back to Lunn's property and returned it to him.  Lunn made a statement on the night of the armed robbery in which he did not reveal the identity of any of the perpetrators.  Two days later, he told police that the male who was not wearing a mask was Duggan. On 5 June 2016, Lunn told police that one of the other males present was you.  You have heard me just say I am not quite sure how he could have known that unless you were out of the vehicle at some stage. 

17You had been arrested on 4 June 2016, late at night.  You participated in a recorded interview in the early hours of 5 June, in which you denied any knowledge of the offending in relation to the first incident, and apart from admitting that you knew Wayne Lunn, denied any knowledge of the offending in the second incident.

18However, the following day, that is 6 June, you participated in a further recorded interview with police in which you admitted participation in the second incident, stating that there was an initial discussion at your unit about Duggan wanting to take the BMW and wanting a gun and one of the other males with a gun agreeing to accompany Duggan.  So, you knew there would be a gun involved.  You admitted that you knew the males were probably going to get the BMW at gunpoint, and you drove them to that address, just following instructions. You were to receive the drug ice in exchange for that participation. You said you did not get out of the car and were just doing mates a favour. 

19You were remanded in custody from the night of 4 June until 24 November 2016, which counts as 174 days of pre-sentence detention.  You then obtained bail on conditions requiring you to return to live with your father in Tasmania, and to report to police there and undergo drug rehabilitation treatment.

20Although on 6 June 2016, you had admitted participating as a driver in the Lunn incident, it was not until the week that the trials were to commence in this sitting that you pleaded guilty to that armed robbery. I assume that there was an outstanding issue as to whether you were the man in the mask rather than the driver but I have not been informed of that and make no actual finding as to what caused that extra delay.

21In relation to the offences involving Curtis, you indicated a plea of guilty at a directions hearing in July of this year. 

22Although there is no Victim Impact Statement from either
Mr Curtis or Mr Lunn, I take into account that each of them was confronted by two men behaving aggressively, and in each incident one man carried a sawn-off shotgun. It is not alleged by the prosecution that you carried a gun in either of those incidents.  In addition, Mr Curtis was injured and was threatened and although I have no information about how long he suffered any consequences of those injuries, there were clearly some at the time.

23I must assess the objective seriousness of these offences and the subjective blameworthiness of your role in them.  The maximum penalty of 25 years' imprisonment reflects the objective potential seriousness of an offence of armed robbery, and neither of these was completely spontaneous, nor at the lowest level of seriousness for an armed robbery. Neither was perpetrated alone.  There were two men doing the confronting of each victim.  That there was a firearm taken to each of these addresses, although not by you, and used as a threat to the person being robbed, raises the level of seriousness of each incident, as does the aggressive manner of the confrontations.  While not sophisticated there must have been some planning before the offenders arrived together at each of the victims’ houses.

24I must also look at the subjective blameworthiness of your role in each incident.  In relation to the first incident, it seems that the original intention was not to commit an armed robbery, and not to steal from Curtis, but to recover photographs that you say you believed one of the women at the house had, and that were of great sentimental value to you.  Whether there was any rational basis for that demand I cannot determine. 

25Nevertheless, it is clear that you were the primary aggressor in the first incident, even though not carrying the firearm.  It was you who injured Mr Curtis, striking him to the head with a torch and hitting him with other items.  It was also you who turned the incident into robbing Curtis, including robbing him of his car.  The stealing of his property may well have been unplanned and a spontaneous reaction to your frustration at not obtaining the photographs you wanted.

26You are not charged with aggravated burglary because Mr Curtis recognised you and let you into his home. This was not a situation of invading the home of strangers and robbing them, but of you going there expecting to find Ms Williams and Ms Marshall, and apparently deciding whilst there to rob Mr Curtis of various goods and his car.  It was still a serious and intimidating incident, which calls for a sentence that conveys community condemnation, and what lawyers call “general deterrence” - that is to send a message to others who might consider engaging in such offending, that they can expect serious punishment for doing so.

27There is no real explanation for why you behaved so violently towards Mr Curtis, nor why you robbed him of his household possessions as well as his car.  It seems that you were affected by drugs at the time.  There is no direct evidence as to your psychiatric condition at the time, but your subsequent treating psychiatrist suggests that your judgment was probably seriously disturbed at the time, partly by the drugs, but also as a result of the underlying condition of schizophrenia from which you were subsequently diagnosed as suffering. While mental illness might lower the culpability, the taking of drugs which render you irrational and volatile of itself does not.

28I regard the first incident involving Mr Curtis as in the middle of the range on the spectrum of potential instances of armed robbery.

29The reckless causing of injury to him was brief, but nonetheless did cause physical injury sufficient to draw blood, cause pain, and interfere with his level of consciousness for some minutes at least.  I have no evidence that he is continuing to suffer from those physical injuries.

30I infer from the fact of him leaving the police station when he says that two men came up to him while he was waiting there and threatened him, that at least on the day he was taking your threat to kill him seriously, that is that he would be dead if he reported the matter to police. I take into account that the threat to kill him was probably made spontaneously. It certainly involved considerable bravado in that you tried to make him believe you had much more ability to seek retribution against him, if he went to police, then you in fact did. Nevertheless, as I have said, he was scared enough to depart from the police station when men approached him there.  There is nothing to indicate that you did in fact send anyone to the police station to try to prevent him reporting the matter but as I say, you certainly used the threat to try to scare him out of doing so at the time.

31In relation to the second incident, the prosecution accepts that you had a lesser role and did not personally confront Mr Lunn, threaten him or steal from him. You apparently agreed to drive the others in exchange for illicit drugs to which you were addicted at the time.  The prosecution does maintain that you did more than just drive, and that you did get out of the car but, as I say, that you were not one of the two threatening or confronting Mr Lunn.  You admitted to police that you knew that a gun was going to be taken by the other men and that they were going to probably take the car.  I regard your involvement in this offence as of a much lower level of seriousness than in the offences earlier in the day against Curtis. I accept that you did not instigate this visit to Lunn's house in the same way you had instigated the visit to Curtis.

32Although not at the earliest opportunity on either of these matters, you have pleaded guilty to involvement in both sets of offending, and are entitled to some leniency in your sentence for doing so.  Although relatively late, both pleas avoided the need for a disputed trial and had the utilitarian value of saving the time and cost of trials, and also in sparing all of the witnesses having to give evidence and relive the events that were frightening to them at the time, or at least to some of them.

33By your pleas of guilty you also accept responsibility for your role in each of these incidents.  I am prepared to find that the pleas of guilty reflect some remorse, in particular in respect of the second incident for which you admitted your involvement soon after your arrest.  I shall tell you what your sentence would have been had you not pleaded guilty after I have explained the sentences on which I have decided.

34I turn now to your personal circumstances.  You are now aged 37 and were 35 at the time of the offending.  I am told that you were adopted as a young child by Mr and Mrs Murray.  You completed school to year nine level, then left to begin an apprenticeship, although you ceased that after about 12 months as a result of workplace bullying.  You went on to obtain a heavy vehicle licence, and worked as a truck driver in your early 20s for about four years. However, you lost your licence and with it your job, and I am told that you have not worked since then when you were aged about 26.

35I am told that you have a longstanding history of drug use, commencing smoking cannabis with friends in your teens, but after losing your job as a truck driver using heavier drugs including heroin and amphetamines.  You also drank heavily.  You had also experienced mental health symptoms which were not diagnosed until early last year. 

36I am told that you have four children as a result of two relationships.  I do not know when or why those relationships ended.  There has clearly been some unrest, especially in respect of the first, because you have had a family violence intervention order in place against you and have breached it on more than one occasion.

37I am told your elder two children are now aged 16 and 12.  The younger two are aged seven and six.  While back in Geelong over the past month for this case, you have apparently been living with the mother of your younger children, re-establishing your relationship with them, and are hopeful that the relationship with their mother and them can have a future. 

38When you obtained bail for these offences in November 2016, it was on conditions including that you live with your parents in Tasmania, abstain from alcohol and drug use, and attend for pharmacological treatment. You have apparently complied with all of those conditions.  You have been on daily supervised methadone doses through a pharmacy.  A report from Dr Chu of Tasmanian Health Service confirms that he has been treating you, and that you are a current patient at Alcohol and Drugs Service South, and have been since 25 November 2016.  You have been attending appointments regularly with your case manager there, presenting with appropriate behaviour, and have been compliant with the service requirements. You have been attending appointments from four to six weekly.  All drug screens have demonstrated only methadone, that being prescribed daily. Dr Chu's opinion is that you would benefit from further engagement with that service and it would be available to you. 

39You also commenced to see a psychiatrist, Dr David McDougall and I am impressed by the content of his recent report. You have attended 17 outpatient appointments with him since January last year, which I take to be approximately monthly.  He sets out why he believes you have been compliant with the anti-psychotic medication he has been prescribing.  He has diagnosed that you suffer from schizophrenia.  He also diagnosed polysubstance dependence with a proclivity for opiates, methylamphetamine, cannabis and alcohol. He believes your polysubstance dependence is in sustained remission in the case of methylamphetamine, cannabis and alcohol, and that, as has already been mentioned, you are currently controlled in your opiate dependence by the substitute treatment of methadone. 

40Dr McDougall took a history from you that for the previous 15 years from when he first saw you, which is now more than 16 and a half years, you have been experiencing visual and auditory hallucinations.  The visual hallucinations were apparently of a male figure that follows you, and the auditory hallucinations have been derogatory and commanding. You told Dr McDougall of following one of those auditory hallucinations and attempting to hang yourself whilst on remand in prison in response to that.  Thankfully you were found and you did not succeed in committing suicide.

41Dr McDougall has prescribed antipsychotic medication to treat the schizophrenia he has diagnosed.  He has tried three different types of medication, one of which has been found more successful.  He says that your hallucinations have been reasonably controlled on this medication, although they do persist, and he noted that you had been having stress-induced flare ups of reported hallucinations recently, due to these pending court proceedings.

42Dr McDougall was asked by your lawyers to comment on what are known to lawyers as the various limbs of Verdins’ case.  His response was refreshingly blunt to some, including that he said he did not know the meaning of general or specific deterrence.  I accept the opinions that he did give. 

43As there was no psychiatric assessment of you at the time of the offending, he is unable to give an opinion on your mental state at that specific time. He did note that your description in the Crown opening of you yelling about photographs of your deceased mother, could represent disordered or delusional thinking associated with psychosis, but he was not able to do more than suggest that that could be what was occurring. 

44Dr McDougall gives the opinion firmly, however, that imprisonment, which tends to be a stressful environment, may aggravate your psychotic symptoms, that you would need your antipsychotic medication should you be imprisoned, and in light of your last period in prison on remand, having included the experience of auditory hallucinations which led to you attempting suicide, he was of the view that there is a significant risk of a significant adverse effect on your mental health from imprisonment.

45He said that you appear to suffer from a resistant form of schizophrenia with ongoing auditory hallucinations despite appropriate trials of three antipsychotic agents.  He considers you are likely to continue to experience auditory hallucinations given that your illness is now treatment-resistant to that extent, but noting that you have not accrued any further charges since returning to Tasmania and abstaining from methylamphetamine use. To him that suggests that measures to curtail and manage your polysubstance use will represent an important aspect of successful reintegration into society.  He had consulted with the alcohol and drug service that you have been attending, and confirmed that you are receiving opiate substitution treatment with methadone.  He believes there is no evidence of you having used any illicit substances since moving to live with your father and mother in Tasmania in November 2016.

46I am impressed by what is reported by both Dr Chu and Dr McDougall as indicating that since moving to Tasmania, on being granted bail in November 2016, you have taken very positive steps in rehabilitation and have shown ongoing determination and engagement with the practitioners you have been attending.  That you have apparently abstained from all non-prescribed drugs, and by implication also alcohol, shows real determination on your part. That you have attended 17 of 18 outpatient appointments with Dr McDougall also shows acceptance of the need for treatment to address what have obviously been longstanding problems, now carrying psychiatric diagnosis, and in particular a diagnosis of schizophrenia, which by the description of your symptoms of hallucinations probably has been the reason for some mental and behavioural instability since your early 20s.

47It is suggested by your counsel that your abuse of drugs and alcohol from about that time may well, with hindsight, be seen to have been efforts by you to self-medicate for your symptoms.  With a diagnosis now established, it is to be hoped that prescribed medication to address your symptoms will avoid or exclude the temptation for you to self-medicate with illicit drugs, which have been shown to do more harm than good.

48You have admitted a prior criminal history, which started almost 20 years ago and is quite lengthy.  I note there is a ten-year pause, and then a further three-year interval between court appearances. Appearances became much more active from 2013 until about nine months before the offending that I am dealing with.  Although starting in 1999 with a charge of unlawful assault for which you received a good behaviour bond which was dismissed some months later after compliance, and a charge of recklessly causing injury that was heard in June 2013, together with a large number of other charges that day, and several offences of intentionally damaging or destroying property, most of your other offending was for driving whilst disqualified or for contravening family violence intervention orders. The latter charges are frequent and certainly not to be condoned, and do not reflect well on you or your self-control.  However, they are of a different nature from the offences that bring you before this court.  There are no previous instances of theft or robbery, and certainly not of armed robbery.  That unfortunately can be interpreted as an escalation in the seriousness of your offending on 14 May 2016. However, I take into account that your criminal history did not involve entrenched serious offending of this nature.

49It is difficult to understand why you embellished your threat to kill Mr Curtis if he reported the matter to police, by saying that you had spent 15 years in prison.  From what I read of your criminal history, the longest you had in fact spent in prison prior until remand for the current offending had been an aggregate of four months.  Unfortunately, that sentence seems to have been imposed because of your history of failing to comply with other court orders - not only with intervention orders, but with community corrections orders or conditions of bail.

50At your age, rehabilitation has ceased to be a primary sentencing purpose, and indeed many rehabilitative orders imposed in the past have been breached or have simply failed.  As I have already said, it seems that you have shown very positive signs of finally taking the need for rehabilitation seriously, and have been engaging well for the last 22 to 23 months with the doctors and services where you have attended in Tasmania. I do not overlook that it is ultimately not only in your own but the community's best interests if you can sustain that progress.  As I say, you are no longer a young or youthful offender, so your rehabilitation is not a primary sentencing purpose, but I still believe it is in, not only your own, but the community's interests if you can sustain the progress in your rehabilitation.  However, the seriousness of this offending, in particular the first incident, involving Mr Curtis, was simply too serious for a sentence that requires you to serve no more time in custody.

51The near six months that you served on remand will be taken into account and count towards your sentence.

52There is now diagnosed a serious psychiatric condition from which you may well have been suffering at the time. Although Dr MacDougall cannot confirm that diagnosis at the time so I cannot make a finding on the balance of probabilities that it contributed to your offending, I have taken into account that that is consistent with your apparent agitation, and unfortunately also with your aggressive conduct and lack of sensible thought processes on that day.  Your mental state was no doubt exacerbated by substance abuse, which is no excuse.

53During the plea hearing, it was raised that a Community Correction Order would not be available if you intend to return to Tasmania upon release from custody.  I was then told that it is your intention to stay in Victoria on your release from prison in the hope of re-establishing your relationship with the mother of your two younger children and living with all of them as a family again. I do not know how long it is since that last occurred, other than the last few weeks that you have been back in Geelong for this case.  I do know that you were not living with them immediately before the time of this offending.  I am not in a position to know how realistic the intention of re-establishing that relationship is.  In any event, it is clear that a sentence involving a CCO requires you to remain in Victoria, at least until you have completed sufficient of the order that the community corrections officers might consider a transfer of it to another state.

54On the other hand, the successful therapeutic relationships that have been established in Tasmania, and the support of your parents with whom you have been living, would not be able to be resumed until you have completed a term of imprisonment in Victoria and probably any parole period.

55I had you assessed for a community correction order on the basis that it was now your intention to stay in Victoria.  You were found suitable with several conditions recommended.  You were assessed on one tool as being at high risk of reoffending, and elsewhere as of moderate risk of reoffending. It seems to me, and I am not questioning the tools of assessment used, but the absolute key to whether you offend again or not is whether you stay off the non-prescribed drugs, and stay amenable and compliant with the prescribed drugs for your mental health condition, in particular the schizophrenia. 

56On the charges on the first indictment, I am satisfied, as I have explained, that the offending was simply too serious for no further term of imprisonment to be imposed – that is a term that would be no longer than what you have already served.

57I take a different view about the second incident of armed robbery.  It was a serious incident of threatened violence and aggression, however, you had a much lesser and less culpable role in it.  I also take into account that in that incident, despite a firearm being used to threaten, and a threat made against
Mr Lunn if he went to police, there was no actual violence inflicted. Further, as it was on the same day as the first armed robbery, I take into account that the totality principle has some application.

58Would you stand up now please.

59Andrew Maxwell Murray, on each of the charges you are convicted and you are sentenced as follows. 

60On the first indictment, on Charge 1 of recklessly causing injury, you are sentenced to five months' imprisonment.  On Charge 2 of armed robbery, you are sentenced to six months' imprisonment to be followed by a CCO of 18 months with supervision and therapeutic conditions which I shall detail shortly.  On Charge 3 of making a threat to kill, you are sentenced to four months' imprisonment.

61I direct that two months of the sentence on Charge 1 be served cumulatively on the sentence on Charge 2, creating a total effective sentence of eight months' imprisonment followed by a CCO of 18 months.  I declare 174 days of pre-sentence detention reckoned served and direct that that be entered in court records.  It will be deducted administratively and means that you have a little over three months - no, it is a little over two months to serve in prison before release.

62The conditions on the CCO that is imposed for those matters are that you undergo supervision, attend for assessment and treatment as directed for drug abuse, and assessment and treatment for your mental health. 

63On the second indictment, on the single charge of armed robbery of Mr Lunn, you are convicted and sentenced to be placed on a CCO to last for 18 months with conditions, first, that you perform 150 hours of unpaid community work.  Of that, up to 75 hours can be credited by your attendance at therapeutic and program requirements. In addition, you are to undergo supervision, attend as directed for assessment and treatment for drug abuse, and for mental health conditions.  So, the program and therapeutic conditions are the same on the two CCOs but on the second CCO which is the only sentence on the second indictment for the second incident, you have 150 hours of unpaid community work, up to half of which can be credited if you do that much in attendance at therapies and programs.

64Now, that CCO is to commence on - I am going to - it will commence a little after the first one because I just do not know in the timing of when you come out of prison.  The problem is the timing over the Christmas period.  I am going to direct that that one commence on 4 January 2019.  They will effectively run together at the same time and there will be one set of supervision no doubt and one set of attendances for the appointments for treatment.  But I have imposed two separate CCOs for the reasons explained.

65Now, on each of those CCOs, in addition to the conditions I have mentioned, all usual terms apply.  I believe they have been explained to you but I will summarise them again briefly now.  You must attend at the local community corrections office closest to where you are living and I am not sure where that address will be, whether it will be - where the CCO office will be.  It may be that it was on that report and I have overlooked it.  Excuse me.  It is the Geelong CCS office, you will have the address in Little Malop Street. You must attend there within two days of the commencement of each CCO. The first of the CCOs commences on your release from prison.  So, that is within two days of the date of your release from prison, by 4 pm that day.  You must keep community corrections officers advised of any change of address of where you are living or where you are working if you obtain work.  You must notify them of such a change of address within two clear working days of the change occurring.

66You must obey all lawful instructions and directions of community corrections officers. You must attend for supervision appointments when they order or where they direct, and you must not leave the state of Victoria without prior permission of community corrections officers.  Above all, you must not commit any further offence which could be punished by imprisonment.  Even if it was a relatively minor example of the offence, if it is an offence that could be punished by imprisonment it would count as a breach of the CCO.

67If you breach the CCO either by not complying with the conditions or by further offending, you could expect that a contravention proceeding will be brought against you.  That itself is another offence that carries a penalty of up to three months' imprisonment, but also you could be re-sentenced for the offending for which it has been imposed, that is the two armed robberies.  And what sentence would actually be imposed or whether the CCOs would be confirmed or varied would depend on what the circumstances of the breach were, and also how much of the community corrections orders you had completed.  Now, I have to ask do you understand those terms and conditions?

68OFFENDER:  Yes, Ma'am.

69HER HONOUR:  Do you agree to comply?

70OFFENDER:  Yes, Ma'am.

71HER HONOUR:  I have to state what your sentence would have been if you had not pleaded guilty.  But for the pleas of guilty the total effective sentence on the first indictment would have been three years' imprisonment.  On the second indictment it would have been 18 months' imprisonment of which I would have directed that three months be cumulative on the sentences on the first indictment.  That would have made a total overall sentence of three years and three months' imprisonment and I would have imposed a single non-parole period of 21 months. 

72Now, I was asked to make a forensic sample order.  I cannot now recall whether you had anything to say to that Mr Toal?

73MR TOAL:  Your Honour, I didn't but what I did want to convey to the court is that my client would not be objecting ‑ ‑ ‑

74HER HONOUR:  Yes.

75MR TOAL:  ‑ ‑ ‑ to a forensic sample being ‑ ‑ ‑

76HER HONOUR:  It seems to me the nature of the offending is such that the circumstances of the offending do call for that order to made.

77MR TOAL:  Yes.  I'm ‑ ‑ ‑

78HER HONOUR:  And I'll also tick the box for the reason that it's not opposed.

79MR TOAL:  He's indicated to me Your Honour that without any shadow of a doubt or reservation he's happy to give a DNA sample.  Thank you.

80HER HONOUR:  Yes, all right.  Well, Mr Murray, I have to explain.  That means that there'll be a sample taken from you so that your DNA can be placed on the national database.  Timing wise it's likely to happen while you're in prison.  I have to inform you that authorised officers there can use reasonable force to take it if you resist but I'm going to limit it as I always do to a sample from - what they call a scraping from the inside of the mouth.  That's a swab rubbed against the inside of your cheek and it's not painful and it's not intrusive so if you don't resist, it shouldn't cause any problem.  Now, I also had a note that there'd been talk of a disposal order but is that being pursued?

81MR MOORE:  Yes, and I withdraw that application, Your Honour.

82HER HONOUR:  Good.  Is there anything else I've overlooked.

83MR MOORE:  No.

84MR TOAL:  No, Your Honour, that completes the matter.

85HER HONOUR:  You can take a seat Mr Murray while the orders are prepared.  The CCOs will have to be prepared and you'll have to - are you right?  Now, while those are being prepared Mr Toal, in terms of your client's medication and any reports, that you want notified as a custody note ‑ ‑ ‑

86MR TOAL:  Yes.

87HER HONOUR:  ‑ ‑ ‑ the - I'm prepared to attach Dr McDougall's report ‑ ‑ ‑

88MR TOAL:  Yes.

89HER HONOUR:  ‑ ‑ ‑ if your client agrees to that but I won't unless there is agreement, because it's a breach of privacy.

90MR TOAL:  I know.  Your Honour, I was going to be asking that some of that material be conveyed to the ‑ ‑ ‑

91HER HONOUR:  Now, is there other medication than what's mentioned in that report?

92MR TOAL:  There is a list that I tendered ‑ ‑ ‑

93HER HONOUR:  Yes, I've just got to find that.

94MR TOAL:  ‑ ‑ ‑ and I was very kindly given two copies for my client.  He's got it in his pocket now, one of them.  It's a list of the medication that he's been taking and that should also be provided, with respect, to the appropriate authorities.  The other thing also, Your Honour, is that as you'll know he's been on daily dose of methadone.

95HER HONOUR:  Methadone.  Yes.

96MR TOAL:  And it may be advisable to ‑ ‑ ‑

97HER HONOUR:  That can go into the custody note also.

98MR TOAL:  Yes.

99HER HONOUR:  I'm assuming that had been transferred over to a pharmacy in Victoria while he's been back here.

100MR TOAL:  Yes.  It's in the Geelong pharmacy.  There's a Geelong pharmacy here, Your Honour.

101HER HONOUR:  The CCO's going to be shown to both counsel to check before we ask Mr Murray to sign.  Can I have Exhibit B please?  Unfortunately the exhibits aren't here (indistinct words).  Yes.

102MR TOAL:  Yes.  Your Honour, I've no problem (indistinct words).

103HER HONOUR:  If those are in order I will ask my associate to approach
Mr Murray to ask him to sign each of those.

104MR TOAL:  Yes.

105HER HONOUR:  Mr Murray, your counsel has checked them but I recommend you read them and check you understand what's in each of those two CCOs.  You sign on the top line, the top of the upper signature and I'll sign the lower one, unlike what's been happening several times.  All right, I've signed each of those CCOs so they'll be copied and there'll be a copy for each side and one for the court obviously.

106MR TOAL:  If Your Honour pleases.

107HER HONOUR:  Now, sorry, I've just got to remember. I think I'm already running late for the next matter. It might be easier if I stand down the court for a few minutes but just for less than five minutes. Do you need to talk to your client here or you going downstairs to talk to him?

108MR TOAL:  I'll see what arrangements I can make for downstairs, Your Honour, because you're only going to be off the Bench for a short time, so ‑ ‑ ‑

109HER HONOUR:  Yes.

110MR TOAL:  Yes.

111HER HONOUR:  All right, would you take Mr Murray into custody please?  Just going to stand down and then I'll return for the next matter.  We'll resume in 5 minutes.

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