Director of Public Prosecutions v Murrell and Ngaa
[2013] VCC 2050
•18 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
(SITTING AT MELBOURNE)
CRIMINAL DIVISION
Case No. CR-12-02189
CR-13-01142
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LLOYD ANTHONY MURRELL AND NONO NGAA |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Ballarat (sitting at Melbourne) | |
DATE OF HEARING: | 27 September & 1 October 2013 | |
DATE OF SENTENCE: | 18 December 2013 | |
CASE MAY BE CITED AS: | DPP v Murrell & Ngaa | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2050 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentence following pleas of guilty to conspiracy to commit armed robbery, aggravated burglary and other offences – very serious offending - first offender with very bad criminal history, TES 14 years’ imprisonment with minimum of 10½ years; second offender with no prior convictions, TES 8½ years’ imprisonment with minimum of 5½ years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr W Stougiannos with Ms R Maxwell | Office of Public Prosecutions |
| For the First Offender | Ms N Karapanagiotidis | Leanne Warren & Associates |
| For the Second Offender | Mr C Mandy | David Barrese & Associates |
HIS HONOUR:
1 Lloyd Anthony Murrell, you have pleaded guilty to 12 offences and admitted two summary offences. Nono Ngaa, you have pleaded guilty to five offences, all committed with Murrell. You both offended over a 19 day period from 14 October until 2 November 2011 when you were arrested. You have both been in custody now for just over two years, essentially waiting for sentence, which I must pass on behalf of the community.
Circumstances of offending
2 The circumstances of your offending are set out in agreed comprehensive outlines which were read out at the plea hearing. Because of the issues that arose at the hearing, it is necessary for me to go into some of the detail. By way of overview, there are three groups of offences. The first is a conspiracy to commit armed robbery in Ballarat and associated offences which you both committed with two others. The second is an aggravated burglary and theft you both committed at a private home in Sunshine. And, you, Mr Murrell, are to be sentenced for another group of offences committed with others, but not with Ngaa.
3 First, a little background. Mr Murrell, you had a very bad criminal history in New South Wales where you lived. In July 2011, you were released from custody in NSW after serving a lengthy 13 year sentence for serious offending. You were 40 and not on parole as you had been forced to serve the whole of the NSW sentence. You came to Melbourne to start a new life with your partner and 14 year old son and moved to premises in Point Cook. You were driving a Subaru vehicle. But you could not escape your criminal past.
4 You, Mr Ngaa, were 30 and had never been in trouble with the law. You lived down the street from Murrell with your wife and children. Unfortunately, you became addicted to drugs, you met up with Murrell and other bad associates and became involved in this criminality.
5 One of your common associates was Matthew Kamal who was 30 and lived in Sydney. Another was Tekin Saner, who is your half-brother, Mr Murrell. He was also 30 and lived in Canadian, near Ballarat. Each of those men had criminal histories, but mainly for dishonest conduct. On 31 May 2013, Saner and Kamal were sentenced by another judge to lengthy terms of imprisonment for their involvement in some of these matters and for other criminality. [1]
[1]It was regrettable that the same judge was not able to deal with all four co-offenders.
6 At the relevant time you two, Saner and Kamal all had mobile phones registered to false subscriber details. But this effort to avoid detection did not work. Police in a joint taskforce from NSW and Victoria were closely watching your movements, Mr Murrell, and, of course, those who came into contact with you. The police operation was highly organised and well carried out. Police had telephone intercepts on your mobile phone, Mr Murrell, and had set up covert camera surveillance at your home and also at Saner’s premises. They were also conducting covert physical surveillance of your movements.
Conspiracy to commit armed robbery at Ballarat
7 I will turn to the specific charges. First, to the conspiracy for which he maximum penalty is 25 years’ imprisonment. Between 14 October and 2 November 2011, you two, Saner and Kamal agreed to commit an armed robbery at JD’s Sports Bar in Lydiard Street Ballarat (charge 1, conspiracy).
8 There was a TAB agency inside JD’s. The robbery was to take place on 2 November 2011, the day after Melbourne Cup Day. It was expected there would be a lot of money available from the previous day’s takings. You believed that a lot of local police would have gone to Melbourne for the Spring Carnival so that would make your task easier. But police knew you were planning the crime. On the morning of 2 November, as you were travelling in two cars on your way to the target premises, you were arrested at gun point by SOG officers who rammed your vehicle. You, Mr Murrell, were driving your Subaru with Kamal and Ngaa in the rear. You, Mr Ngaa, were wearing grey rubber gloves and in possession of cable ties which were designed to subdue victims. Significantly, you had a fully loaded unregistered revolver and but for the professional restraint displayed by the arresting officers, you were lucky you were not shot dead. Baseball caps, other gloves, sunglasses and further cable ties were found in the car. Saner was driving his car behind yours and was also arrested.
9 You, Mr Murrell, played a significant role in this offending. Among other things, you discussed with Saner stealing a getaway car for the robbery and on 23 October you told him to get rid of a Corolla he had stolen because the robbery was still a while away; on 23 October you told your brother, Anoir, that you had been to Ballarat to look at the job and that each of the conspirators would make $20,000 to $30,000; over a number of days you discussed with Kamal his participation in the robbery (possibly with another man from Sydney) and asked him to get a weapon; but then you later told Kamal not to worry about the gun as you had obtained a weapon yourself; you went to Ngaa’s premises and recruited him for the enterprise; you picked up Kamal at the airport and he stayed with you at your premises in Point Cook. Then, on 30 October in a surveillance exercise, you and Kamal drove to Ballarat and entered the targeted premises to check it out. On 31 October, you discussed with Saner stealing a getaway car that day but were unsuccessful in doing that until the next day, see: charge 9 and 10. On 1 November, you told Saner you had a gun put away and asked him to organise cable ties that were big enough to go around a person’s hands and the following day you discussed with Saner clothing to be worn and told him that Ngaa and Kamal were going to go inside the targeted premises whilst you would be watching the police station nearby and he, Saner, would be out the front in the getaway car. Saner did not want to do this because he might be recognised as someone living in the area, and suggested that instead you, Mr Murrell, could be the getaway driver. On the morning of the proposed robbery, you drove Kamal and Ngaa in your Subaru from your home to Saner’s home and then the four of you drove past JD’s in Ballarat in your car so you could check out the robbery target. Then the group stole a getaway car which you started without keys and parked outside JD’s, see: charge 11. You all then returned to Saner’s before setting off for the robbery which, as I have explained, was thwarted by your arrests.
10 Contrary to your submission, Mr Murrell, I do accept beyond reasonable doubt that you organised the weapon for the proposed armed robbery. In the call to Kamal on 27 October 2011 (Call 61), you made very clear that you had obtained the weapon. Kamal told you, “We’re gonna need that thing”, referring to a weapon, and you replied, “Don’t worry about it … yeah, I’ve got one, bro’ … Dale gave me one the other day … yeah, I got one. All good.” Clearly, you were assuring him that you had got a weapon from Dale. Clearly, Kamal believed that to be the case because he replied, “Oh. I’m jumpin’ on the plane then”, and, in due course, he came to Melbourne and you picked him up at the airport. It was also significant that this conversation occurred the day after the aggravated burglary when you committed that offence in possession of a weapon, which was, inferentially, the same one that you had obtained from the person called Dale.
11 After your arrest, you, Mr Ngaa, were taken to a police station where, inside holding cells, you were approached by two covert police operatives who were pretending to be prisoners. You made unwitting admissions to them, the conversation was recorded. Among other things, you said that you were going to rob the targeted premises. You said that one of the employees, an “old fart”, had been observed by the co‑offenders walking to the bank using the same route and that you were going to look after other offenders so that they did not get “smashed” – that is, hurt. You said that someone you knew in prison in New South Wales had set up the offending with Murrell. When asked how much the gang expected to get, you said it was $400,000 “after they cut it up”. You said that you were going to tie up the “old guy” and that you might have used the weapon which you had to stop this victim by making an impact “on his head”. In a later formal interview, you made a no comment response and gave no explanation for your actions.
12 You, Mr Murrell, were not interviewed by the police on the day of your arrest due to you having to receive medical attention. You later declined the opportunity to take part in a police interview.
13 Saner and Kamal were interviewed on the day of arrest and gave false accounts as to why they were present at the time of arrest and made no admissions. They were each sentenced to six years' imprisonment for the conspiracy offence.
Theft of the first getaway vehicle
14 On 1 November, the day before the proposed robbery, you, Mr Murrell, and Kamal committed a burglary at Kevin Dennis Motors, Braybrook (charge 9, burglary) and stole an SS Holden Commodore worth $40,000 (charge 10, theft). The maximum penalty for each of those offences is 10 years’ imprisonment. This was to be the getaway car. First, in the company of a third person you both went to the car yard and, whilst the sales manager was distracted, Kamal entered the office, stole a set of keys and, using them, identified the vehicle to which they belonged. Later in the day, you and Kamal returned to the yard and you went in and took the vehicle using the stolen keys. Kamal suggested that you park the car at a shopping centre so that it could be collected later for the robbery. But first, you called Saner and had him confirm that the vehicle did not have an inbuilt GPS device so that it could be tracked by the owner. Saner telephoned a Holden dealership and reported back to you that the car had no in-built tracking device. You and Kamal then stashed the car in Tottenham. Later that evening, you both returned to retrieve the car and discovered that it was missing, as by that stage it had in fact been found by its owner. You concluded the police must have found it.
15 This was well-planned and audacious criminality by you, Mr Murrell, and Kamal, employing significant nous and cunning. Kamal was sentenced to two years' imprisonment for each of these offences and his licence was disqualified for five years.
Theft of the second getaway vehicle
16 Your gang was undeterred by the sudden disappearance of the getaway car or the belief that police had recovered it. You needed another one. So, after driving past JD’s on the morning of 2 November, the four of you went to the vicinity of the Ballarat railway station. You two and Kamal, all wearing gloves, broke into and stole a Holden Statesman (charge 11, theft). The maximum penalty for this offence is 10 years’ imprisonment. You, Mr Murrell, forced the ignition using a screwdriver and, with Kamal and Ngaa aboard, drove the car and parked it almost outside the targeted premises in Lydiard Street. Hence, the getaway car was in position ready to aid your escape from the robbery. Then you all went back to Saner’s place before setting off in the two vehicles. The Statesman was recovered after your arrests.
17 Such was your versatility and determination in face of the unexpected loss of the first vehicle, you stole another in broad daylight from what I assume was a busy area of Ballarat. For this offending, Kamal was sentenced to two years' imprisonment and Saner to 18 months, with licence disqualifications for 5 years.
Possession of the revolver in the car
18 Finally in connection with the conspiracy, you are to be sentenced for jointly possessing the unregistered police type Smith & Wesson revolver at the time of your arrest. Significantly, it was loaded and ready for use. You, Mr Murrell, were a prohibited person by reason of previous convictions and sentences of imprisonment. Hence, the maximum penalty is 15 years’ imprisonment (charge 12, prohibited person in possession of unregistered firearm). It follows that your possession is more serious than that of Ngaa’s, although I note that you were not actually holding the weapon. The possession of unregistered handguns by prohibited persons such as yourself is a serious offence and a serious threat to the stability and welfare of our society. Kamal was also a prohibited person and sentenced to four years' imprisonment for this offence.
19 Mr Ngaa, you have pleaded guilty to possessing an unregistered general category handgun, for which the maximum penalty is seven years’ imprisonment (charge 13, possession of unregistered general category handgun). This too is a serious offence and my observation about the dangers of unregistered weapons applies equally to you. And, you actually had the loaded weapon on your person.
20 I am satisfied beyond a reasonable doubt, based on the intercepted telephone calls and police surveillance evidence that you, Mr Murrell, were the leader and principal organiser of the proposed robbery.[2] However, I do not conclude that you, Mr Murrell, “called the shots”, as the prosecution put it, as I am satisfied, again on the criminal standard, that you, Mr Ngaa, like the other two offenders, were a willing, active participant in the conspiracy.
[2]See the detailed prosecution opening dated 13 September 2013 (ex F), the prosecution submission as to roles played by the offenders, dated 2 October 2013 (ex N) and the defence submissions as to roles (ex A1 – 5 (Murrell) and A2 – 6 (Ngaa)).
21 You, Mr Ngaa, had clearly committed to the scheme by 31 October when Murrell told you he had got things organised and you said you were ‘’coming’’ [to do the job] (call 328). Then, on 1 November, you discussed with Murrell the target of the robbery and talked about getting new rego plates for the getaway car which Murrell told you he had secured (call 609), obviously referring to the car he had stolen from Kevin Dennis Motors. With the others, you conducted surveillance of the targeted premises; you were involved in the theft of the getaway car from the Ballarat railway station on the morning of the proposed robbery and its convenient placement outside JD’s; you were in possession of items of disguise and restraints in the car on your arrest and most importantly, you carried a fearsome loaded weapon ready for use. As you admitted to the police in the cells, you had a clear idea of your role which was to protect the other offenders, to physically disable any victim and use the weapon if needed. I agree with the prosecution submission that you were not a “mere pawn” of Murrell’s.
22 I do not consider there is sufficient evidence to say that the four of you were to receive equal shares of any proceeds, but nevertheless, each of you expected to make significant money from the proposed robbery.
23 Speaking generally, the conspiracy charge is a very serious offence. Significant planning and preparation had been undertaken. A getaway vehicle had been stolen and parked outside JD’s. You were on your way to commit the armed robbery. You were in possession of items of disguise, had restraints to subdue any victim and were armed with a loaded revolver. Roles had been allocated. Everything had been done but for the commission of the robbery. In your favour, there was no actual robbery and no trauma for victims. But you were active members of a determined gang. You expected a high reward and chose a time when a large amount of money was expected to be present and when you believed there would be a reduced number of police in the area. You were going to commit the robbery in broad daylight on a working day in the main street of a major regional city of Victoria. It could have been expected that there would be a large number of people in the area. It was brazen conduct indeed.
Aggravated burglary committed by Murrell and Ngaa
24 The next episode of offending concerns an aggravated burglary and theft you both committed at premises in Sunshine on 26 October 2011. The aggravated burglary (charge 3) carries a maximum penalty of 25 years’ imprisonment and the theft (charge 4) has a maximum of 10 years.
25 The home in question was occupied by a mother and her three children, two girls aged eighteen and fourteen and a twelve year old boy. I will not name them to protect their identities and privacy. The mother was a real estate agent and had been involved in the sale of nearby premises connected with Matthew Rolfe, another of your associates. On one occasion, the mother had seen Rolfe at her house in connection with a concreting job. At the time of offending, the father of the household was in prison and it is to be inferred his absence from the home, and perhaps expectations you had as to money and valuables being on the premises, became known to Rolfe and then to yourselves. The prosecution case is that Rolfe was a conspirator involved with the two of you in planning the aggravated burglary but, ultimately, he decided not to attend the victims’ premises out of fear of being recognised by someone there, presumably the mother. Rolfe was charged with theft and aggravated burglary but his charges were withdrawn at committal.
26 In any event, at around 10pm on 26 October, the mother was out and the twelve year old boy and his fourteen year old sister heard you outside the home, they became frightened and tried to escape by climbing from a balcony onto a roof. They were considering jumping when you, Mr Ngaa, from the garden below pointed a gun at them and aggressively told them to go back inside. Terrified, they complied. You then both entered the premises heavily disguised with balaclavas, gloves and dark clothing, each holding a handgun. This was every parents’ nightmare. You made repeated demands of the children for gold and money whilst pointing the guns at them. You ransacked the mother’s upstairs bedroom, taking various items of jewellery. You marched the children downstairs to their father’s bedroom and demanded that they open a safe, which was in a cupboard. This was achieved, but there were no valuables in it.
27 Then while you were searching other rooms, the eighteen year old sister and her sixteen year old girlfriend arrived home. They entered the house and were confronted by each of you brandishing the firearms. One girl screamed and ran upstairs in fright. She was pursued by you, Mr Ngaa. You took her mobile phone and told her to go back downstairs. The four children were bundled into the laundry. Further demands for gold and money were made. You, Mr Murrell, directed the eighteen year old to take off her rings and hand them over, which she did. You then searched her handbag and found her car keys and mobile phone. She begged you to return her mobile phone and keys, which you finally agreed to do. The sixteen year old girl’s mother then arrived outside to pick her up and you two left the house via a rear door. A white car was seen nearby travelling at a fast speed. The two of you returned to your homes at Point Cook. In addition to the jewellery that you took, you also stole a leather backpack, a Nikon camera, an Apple laptop and two Toshiba laptops.
28 Intercepted telephone calls or texts between you, and between you, Mr Murrell, and Rolfe were highly incriminatory and revealed your pre-planning to commit the offences. This included you, Mr Murrell, telling Rolfe that you had two firearms (“two woof-woofs” as you called them).
29 You, Mr Ngaa, visited Murrell’s premises at 12.24pm on the day of offending, which was relevant to his later assurance to Rolfe that you were a willing participant, Murrell described you as the “cage fighter” who would lend your muscle to the enterprise. In discussions and texts you had with Murrell from 7.02pm onwards, you discussed the closing time of Bunnings where it was proposed to purchase the gloves for the offence; you discussed clothing to be worn whilst offending (referring to balaclavas and gloves); and you arranged to meet up with Murrell so that you could go to Bunnings and then commit the crime (T4, T7−T9). Additionally, I note that Murrell told Rolfe that he had organised the offending with you, an utterance in furtherance of the conspiracy, not mere narrative (T10); and that at 8.07pm Murrell told you to come to his house, but you refused and told him to come to your house (T11).
30 Again, you, Mr Murrell, were the instigator and principal organiser of the aggravated burglary. But you, Mr Ngaa, were actively involved in the planning and in the execution of the crimes. You ended up with two of the laptops, but it is not clear how much each of you otherwise got from this offending or the exact value of the items stolen.
31 Having arrived back at Point Cook, you were observed by police who, unfortunately, had been unable to identify the targeted premises; nor did they realise you had left the area so they did not follow you to the victims’ home. The following morning, you, Mr Murrell, drove to Ballarat to visit your brother, Saner, when you gave him one of the stolen laptops.
32 The revolver seized from you at the time of arrest on 2 November was similar in description to one of the weapons described by the witnesses and it is accepted that it was one of the handguns used in the aggravated burglary.
33 Following your arrest, police searched your home, Mr Murrell, and found a number of pairs of gloves of the kind worn for this offending. They were identical to the pair being worn by you, Mr Ngaa, when you were arrested. A number of balaclavas were found and other clothing which was similar to that described by the victims. Police also found the stolen Toshiba laptop at Saner’s premises where it had been left by you, Mr Murrell, the day following the offending. On 22 November, police searched your home, Mr Ngaa, and found the other two laptops stolen from the premises.
Victim impact – aggravated burglary
34 I have received victim impact statements from the mother and her three children who are the victims in the aggravated burglary. They make for distressing reading. The victims all speak in eloquent terms of the life-changing event they experienced and how their relationships with others have been significantly adversely affected. They became hypervigilant, fearful of noises and imaginary intruders in the house, effectively jumping at shadows.
35 The twelve year old boy, who is now fourteen, says he is so scared at home that he sleeps with his parents. He has quit soccer, lost friendships and spends a lot of time inside the home. Sadly, he says, “I should be like all my other friends who go to school on the bus by themselves, then to the park after school and do fun activities on the weekend but I am too scared to be out of my mum’s sight”.
36 The fourteen year old girl, who is now sixteen, still relives the trauma of your attack. She has a strong memory of the two masked men with guns and the thought that she might die. She no longer feels safe in the home, experiences sleep problems and fear and paranoia. She is anxious when near strangers in public and has changed her habits. She has had a problem getting a job. She states, “I worry that I’m not living my teenage years as well as I want to. I’m now 16 years old, and remain a victim of crime”.
37 The eighteen year old sister, now twenty, could not believe that she and her siblings would have undergone such a shocking and frightening experience. She says she is a completely changed person and now experiences social phobia. She has lost contact with friends and become a recluse. She has deleted her social media pages and no longer visits family or friends outside of the home. She quit her job and experiences terrible anxiety. She states, “Before the incident I was very confident, outgoing, loud, bubbly, loved meeting new people and having a good time and always saw the best in people. I now cannot see past the negative and feel as if every person has some kind of agenda towards me. I’m trying to overcome all these outcomes and hopefully step by step, I will be able to move on from this.”
38 Finally, the mother described significant personality changes and sleep problems as a result of your offending. She has lost self-esteem and independence, and become reclusive. Regrettably, she became depressed and attempted suicide. She is now taking medication for that problem. She became so afraid of strangers that she gave up her job as a real estate agent. Eventually, the family sold their home and moved elsewhere.
39 These telling statements are a reminder of the human impact of your crime. The recognition by the court of the terms of a victim impact statement is, I think, an important part of the necessary social rehabilitation of the victim. You both should feel a great deal of shame and remorse for this particular offending.
40 The aggravated burglary is, I consider, a very serious example of the offence in question. It was night time; you confronted two terrified, vulnerable and overwhelmed children who were alone; you ordered them around in their own home at gunpoint whilst heavily disguised. I cannot conclude beyond reasonable doubt on the evidence that the weapons you had were loaded but your possession of them clearly intimidated the victims. Neither of you were willing to say on the plea hearing whether the weapons were loaded or not. I thought this reflected on the quality of the pleas to these charges. You showed a total disregard for the terror which you must have understood those children were experiencing. You carried on in the same way when the other two young persons arrived. Your clear expectation of and demand for valuables and a safe at the premises suggests that the victims’ home was targeted and not a random selection. The victim impact has been profound and enduring.
41 You, Mr Ngaa, say that you were affected by drugs at the time and in the lead up to the offending. This meant that the risk of the offending spinning further out of control involving the use of greater force or violence was that much higher. Whilst there was no apparent grievance or perceived wrong of the kind referred to in Hogarth’s[3] case, other features referred to in that case were present.
[3]Hogarth v The Queen [2012] VSCA 302
Further offending by Murrell with Saner and Kamal
42 Finally, I will turn to three episodes of other offending involving you, Mr Murrell, with Saner and Kamal, which happened whilst you were planning the armed robbery. This offending does not concern you Mr Ngaa.
43 First, on 19 October 2011, you, Mr Murrell, contacted Saner and told him that you were following a Brock Commodore on the road and wanted to steal it. You followed the driver to his residence at Miners Rest and gave the address to Saner. A few days later, on 23 October, you, Saner and a third male went to that address and forced your way into the garage. You pushed the vehicle out of the garage and you drove it to your premises at Point Cook and hid it inside your garage (charge 2, theft). The maximum penalty you face on this offence is 10 years’ imprisonment. On 31 October, you organised for the vehicle to be towed to a factory in Tottenham, intending that the engine bay would be spray painted. Apparently, this did not happen.
44 The vehicle was valued at $30,000 and was ultimately recovered and returned to its owner. The offence was calculated and well planned. You brazenly followed the vehicle and watched where its owner parked the car at his home. You carried though on your boast to Saner (about stealing the car) and took steps to have the car altered, although this did not happen in the end. Saner was sentenced to 18 months' imprisonment for this offence and his licence was disqualified for five years.
45 Secondly, on 27 October 2011, you agreed with Saner to steal a mini motorbike for his son’s birthday, which was the following day. Saner travelled up from Ballarat. At about 9.40pm that evening, you, Saner and a third man went to the City West Yamaha store in Hoppers Crossing. A metal pole was used to smash the surveillance camera at the front of the building. You then used a pair of bolt cutters to cut off a padlock from a metal boulder situated directly in front of the main doors. Having removed the boulder, you then rammed a stolen Toyota van into the front of the store. You moved the sensor for the floodlights inside the store in order to stop the security floodlights from switching on. You stole eight motorbikes and loaded them into the van. They had a total value of approximately $18,000 (charge 5, burglary, and charge 6, theft). The maximum penalty on each charge is 10 years’ imprisonment. In taking the bikes, you knocked over several others causing approximately $8,000 damage. There is no charge for this damage or for your use of the stolen van, which was later discarded and burnt out, and I do not take those matters into account against you.
46 All but one of the stolen bikes were transported in the van to your residence in Point Cook and placed in the front bedroom of your house. The other one, a mini blue motorbike, was taken by Saner and given to his ten year old son, who was captured on a covert police camera riding it the next day.
47 This was a well planned ram raid where you used a stolen van to smash through the premises, you disabled security systems and stole a large number of motor bikes. You demonstrated tenacity because it must have taken some time to get away with all of these bikes. Saner was sentenced to 18 months' imprisonment on each of these offences. The bikes were ultimately recovered and returned to their owner.
48 Finally, on 31 October 2011, you and Kamal broke into a house in Seabrook (charge 7, burglary). You stole various property, including jewellery and electronic items worth approximately $14,000 (charge 8, theft). The maximum penalty for each of these charges is 10 years’ imprisonment. The stolen items were transported by you in your vehicle to your home where you got your fourteen year old son to help you carry some of them inside the house.
49 This last episode was also well planned involving Kamal first breaking into the premises alone and then giving you the all clear before you arrived and loaded up your car. Regrettably, you enlisted the assistance of your 14 year old in the enterprise. The stolen items were all recovered. Kamal was sentenced to two years' imprisonment on each offence.
Summary offences committed by Murrell
50 Finally, there are two summary offences which you, Mr Murrell, have pleaded guilty to and agreed to be dealt with.
51 On 2 November 2011, when police searched your home at Point Cook, they discovered a Taser weapon in your bedroom (Summary Charge 1, possess prohibited weapon, for which the maximum penalty is two years’ imprisonment). Police also seized a large amount of property which is reasonably believed to be the proceeds of crime. This included electronic items, jewellery, watches, mobile phones, assorted tools and other items of value (Summary Charge 2, deal with property suspected of being the proceeds of crime, for which the maximum penalty is two years’ imprisonment).
Court process
52 Following your arrest, you were each held in custody without bail. There is now, for you, Mr Murrell, 777 days’ pre-sentence detention up to, but not including, today; and for you, Mr Ngaa, 735 days PSD.[4]
[4]See footnote 7, which explains the lesser figure for Ngaa.
53 In October 2012, you both conducted a contested committal on the aggravated burglary matter.[5] The four children involved were cross-examined. The mother was cross-examined on a Basha inquiry at trial. It was agreed between the parties that at committal there was an understanding you would always be pleading guilty to the conspiracy and other charges I have described.
[5]At the committal on 30 October 2012 whilst giving evidence, the informant claimed that he had been harassed and threatened by Mr Murrell. Soon after, there was a confrontation between a number of police and Mr Murrell in the dock. Charges were laid and, on 24 May 2013, Mr Murrell was convicted in the Magistrates’ Court of threatening to inflict serious injury, harassing a witness and resisting a number of police, and sentenced to a total effective sentence of 20 months’ imprisonment with a minimum of 14 months. A conviction and sentence appeal to the County Court is pending and it was rightly agreed between the parties that this matter was and is irrelevant for sentencing purposes.
54 The aggravated burglary matter came on as a separate trial before me in late July/early August this year. Each of you had filed defence responses in which you denied involvement in that offending. You, Mr Ngaa, filed a notice of alibi. The issue was one of identification. Objections were taken to the admissibility of a good deal of the evidence. I gave a ruling on 9 August last when I admitted most of the contested evidence. Following discussions with the prosecution, you ultimately entered late pleas of guilty to a plea indictment in settlement of the contested matters. You then also entered pleas to all the other matters, as foreshadowed.
Murrell – background and personal circumstances
55 I will turn to your background and personal circumstances. First, to you, Mr Murrell. I have had the assistance of a psychological report from Dr A Cunningham dated 23 September 2013, a letter from your general practitioner in Ballarat and a good deal of material as to your good conduct whilst in custody. I have also been assisted by your counsel’s helpful written submissions and by the plea she made on your behalf.
56 You are now forty-two and were forty at the time of offending. You were born in New South Wales and have four siblings. Your father was a violent alcoholic who used to beat your mother and you. He was in and out of jail. Your parents separated when you were eight. Your mother re-partnered, but your stepfather was also a violent alcoholic and a heroin addict. He encouraged you to act dishonestly and you report him sexually abusing you and one of your sisters. You experienced unstable accommodation, including roughing it on the street. At sixteen, you were in a boys’ home after your father died in a motor vehicle accident. You had a disrupted school experience which included remedial English classes. You left high school after only completing Year 7. You were unable to maintain stable employment, partly because of trouble with the law. However, you worked as a roof installer, detailer, a council worker and in the motor mechanical industry.
57 You began using alcohol and cannabis at a very young age. By sixteen, you were using amphetamines and heroin. All this was complicated by problem gambling. You had a 12 year relationship from which there are three children, aged eighteen to twenty-four. You had a second long-term relationship from which there are two children, aged fourteen and one. Your partner, who suffers from mental health problems, has recently returned to Sydney with her children to gain family support. You have continuing contact with your children and they are a motivating factor for you.
58 Regrettably, you have a serious criminal history in New South Wales. It dates from 1988 and involves dishonesty, violence and drug offences, for which you have been frequently sent to prison. Significantly, in 2002, in the Supreme Court you received a total effective sentence of 13 years’ imprisonment with a minimum of seven and a half years for very serious offending. I have been greatly assisted by having the reasons for sentence in that case.[6]
[6]R v Murrell [2002] NSWSC 260, Howie J.
59 You stood to be sentenced for three main episodes of criminality committed in 1997 and 1998. The first involved two effective aggravated burglaries when you confronted victims in their homes whilst disguised with a balaclava, armed with a screwdriver or firearm and in company with others. One of the victims suffered a wound to his head and, in an offence of “grave seriousness”, the other was abducted from her home and sexually assaulted by you. The second episode involved you, as an accessory, driving an offender away after he had fatally shot a man who had been involved in an earlier altercation which you attended. The final episode involved you committing four armed robberies of sporting clubs, a hotel and a bank, whilst armed and wearing a balaclava and utilising stolen vehicles in some cases. You were described by the sentencing judge as “…a member of a gang of professional armed robbers who had little, or no, respect for honest citizens or their property”. The armed robbery offences were described as in the upper range of seriousness for offences of their type.
60 You were on a good behaviour bond at the time you committed the offences and, for some of them, on bail. Your conditional liberty was an aggravating circumstance. You had pleaded guilty and there was some evidence of remorse. There was also another mitigating factor mentioned by your counsel. In a submission which resonates in the present matter, reliance was placed upon the fact that you had rehabilitated since being placed in custody. This included undertaking a number of educational and lifestyle programs and obtaining a number of certificates and commendations from persons in the correctional services relating to various aspects of your conduct in prison. You had received psychological counselling and had plans to undertake a carpentry course in order to obtain skills that might be utilised upon release. You provided a letter to the judge indicating your remorse and appreciation of the impact of your offences upon your victims. The judge was satisfied that your prospects for rehabilitation had improved and that this offending was far more serious than your past criminality. Nevertheless, a very substantial prison sentence was called for, having regard to the nature and seriousness of your offending.
61 Although you were eligible for release on parole in January 2006, you were not released until December 2007. Then that Parole Order was revoked in February 2008 as a result of further offences of assault and stalking, for which you were imprisoned. You were released on parole again in November 2010 and travelled to Melbourne but, in February 2011, that Parole Order was revoked and you were returned to prison in New South Wales to complete the full sentence of 13 years’ imprisonment. Ultimately, you were released on 30 July 2011 when that sentence expired. Hence, the current offending only occurred about three months after your final release from prison.
62 You went to live in Ballarat. The general practitioner’s report indicates that you were seen in August and September 2011 suffering from anxiety, sleep disorder, loose thought association and thought to be suffering from a “likely schizophreniform illness”, and were prescribed Seroquel tablets.
63 When you were reviewed in prison by the psychologist on 20 August last, you described ongoing distressing recollections of your childhood sexual abuse, violent traumas you had experienced in prison, self harm behaviour and anxiety and panic attacks in the community. You were diagnosed as suffering a post traumatic stress disorder, which was described as complex in nature and negatively affecting your personality functioning, behaviour, emotions and perception. In the psychologist’s opinion, this disorder has been perpetrated by your exposure to ongoing trauma in the form of the deaths of your father and brother, the still birth of your child, your experience of being stabbed and witnessing murders in jail. The psychologist’s opinion is that you present as an institutionalised person with an impaired ability to live independently in the community.
64 On testing, you demonstrated a below average range of intelligence and your thinking and reasoning ability was assessed in the lower 10 per cent of your age peers. You told the psychologist your offending was due to your stupidity, that you were not thinking straight and not using your medication. As to the aggravated burglary, you said that you were upset that there were children present and conceded that they were likely traumatised by your conduct.
65 In the expert’s opinion, if your disorder is left untreated, a term of imprisonment would weigh more heavily on you compared with an individual without such a condition. Exposure to further trauma in a prison environment would perpetuate and further aggravate your disorder and increase your symptoms of hypervigilance and mistrust of others. Your disorder is described as “…a severe psychological illness that would require long-term psychological and psychiatric intervention to manage”. You would further benefit from drug and alcohol counselling. Upon your ultimate release from prison, you will require significant supervision and support to adjust to living in the community.
66 To your credit, whilst in custody these past two years you have obtained certificates for a number of occupational courses, particularly for welding which you would like to pursue. You have successfully completed programs in anger and conflict management and communication skills. You have produced 11 urine screens conducted over twenty months between November 2011 and July 2013, all of which have been negative for inappropriate drugs. Significantly, you have been an effective participant in the MRC Schools Program 2013, which provides opportunities for Year 11 and 12 students to visit a prison and meet prisoners so as to obtain a better understanding of life choices and consequences. Obviously, the program assists prisoners as well, who have a chance to give something back to the community.
Murrell – mitigating circumstances
67 Your counsel relied on a number of mitigating circumstances, which I accept. The first is your impoverished, dysfunctional childhood and upbringing. You had limited emotional, educational and social opportunity. You have spent many years in prison now and are institutionalised. You suffer from a post traumatic stress disorder of a serious kind which requires long-term intervention and management. I accept the limited application of the Verdins principle in that this disorder would result in a term of imprisonment weighing more heavily upon you compared with a person without such a disorder. This problem is complicated by your general state of anxiety and below average range of intelligence.
68 You have pleaded guilty to all matters which has saved considerable time, effort and expense, which is of utilitarian benefit and serves the interests of justice. As the prosecution concedes, you are entitled to a full discount for all pleas, other than those relating to the aggravated burglary matter, as an early indication of pleas was given at the committal. The late plea entered on the aggravated burglary matters should be accorded significant mitigating weight as it spared the young victims the ordeal of being cross-examined at trial. Having said that, however, I cannot ignore that you fought that matter at committal, cross-examined those witnesses and only pleaded guilty on these charges following adverse trial rulings. I do not accept that the Crown case changed significantly or so significantly as to be of particular relevance as to the timing of the pleas in the aggravated burglary matter.
69 Generally, I cannot be satisfied that your pleas of guilty are associated with any degree of remorse. I note your comment to the psychologist about the children, however, you knew they were present before entering their home and this did not deter you at all from committing the offences against them the way that you did.
70 Reliance was placed on your condition in the lead-up to your offending, as referred to in the general practitioner’s report, but that material is light on and your counsel conceded that your unmedicated state at the time of offending was due to your own failure. However, you are now complying with an anti-depressant medication regime. Additionally, you have acted well in prison over the past two years and engaged in significant rehabilitative conduct. You have maintained contact with your family and seen most of them in prison and they remain a motivating factor for you.
71 I also take into account in your favour the fact that there has now been a delay of about two years between your arrest and sentence. You have had the matter hanging over you for that lengthy period and achieved rehabilitation in the meantime. During this time you have been in a management unit. I was informed today that from the date of sentence you will be placed in a protection unit and you will serve your sentence in protection. Accordingly, I have adjusted the head and minimum sentences to take account of this fact. The prosecution agree with this approach.
72 Notwithstanding this improvement over the past two years, it is not possible to conclude you have good prospects for rehabilitation. You do appear to be moving in the right direction in prison but the psychologist states that you present as an ongoing risk of re-offending until you engage with persistent psychological, psychiatric, drug and alcohol and community support. You have a very bad criminal history and, significantly, strong claims of rehabilitation were made at the 2002 sentence hearing (similar to the present), which were completely dashed when you committed these offences within a very short time of your release on that sentence. In the light of all that, and the multiplicity and nature of this offending, I remain very guarded as to your prospects of rehabilitation. Much in that regard will depend on what further steps you take to address your personal issues whilst in custody and the supports that you have upon your ultimate release back into the community.
Ngaa – background and personal circumstances
73 I will now turn to your background and personal circumstances, Mr Ngaa. I have had the advantage of a psychological report of Ms A Swan, dated 15 September 2013; a number of character references; prison documents as to rehabilitation whilst in custody and urine screen results. I have also been assisted by your counsel’s written submissions and the plea he made on your behalf.
74 You are now thirty-two and were thirty at the time of offending. You were born in Tahiti. For unknown reasons your parents separated soon after your birth. Your mother re-partnered and had seven further children, so you have four half-brothers and three half-sisters, all younger. You spent the first seven years of your life in the Cook Islands, then went to New Zealand until you were ten, when you came to Australia. You had an unsettled childhood in that sometimes you lived with your parents and sometimes with relatives, as you moved from country to country. You describe your childhood as “confusing”. This included being bashed for no reason by relatives when you were living with them in New Zealand and being left alone without supervision or sustenance when aged seven to eight. Sadly, you report a significant history of childhood sexual abuse between the ages of five and six when you reported being regularly raped by men who visited your family’s bakery in the Cook Islands. This abuse continued when you moved to New Zealand. You have essentially kept this conduct a secret and reluctantly disclosed it to the psychologist.
75 You were brought up as a member of the Seventh Day Adventist Church. Your uncle was a pastor who acted in a moralistic way towards you, and you described feeling ashamed of your Islander heritage as a child; and as an adolescent there was bullying and racism from others. This should never have happened. The psychologist says it is likely you suffered from significant learning problems. You left school after only Year 7, when you were twelve. You had a difficult school experience, regularly being bullied due to your large size and ethnicity.
76 These early feelings of discomfort were exacerbated by a difficult adolescence, when you lived on the streets for many years which led to the consumption of alcohol and illicit drugs from an early age. You generally spent time with an older peer group because you were of large stature and appeared older than you were. Your first started using amphetamines in 2009 when you were twenty-eight, and were using ice and heroin on a daily basis leading up to the offending and your arrest. By this time you had fallen in with a bad crowd, including meeting up with Murrell. Your methamphetamine use has caused you to experience psychotic symptoms.
77 In spite of these difficulties, after leaving school at thirteen, you worked fully and productively. First, as a factory hand for several years, then on the Melbourne docks for 10 years. And, you volunteered as a sports coach in 2001 and 2007.
78 Your first relationship occurred when you were fourteen with a lady who was twenty-nine. You were together for a few years and had a son who is now eighteen. You lost contact with your former partner and son about eight years ago. Then you had a relationship with a woman when you were twenty. She was your age, and of that relationship there is an eleven year old daughter. But you had problems and split up after a couple of years. You saw your daughter last year, but have no regular contact with her. In the future, you wish to re-establish regular contact with your children and to be a good father.
79 You have reported significant depressive and anxiety symptoms from the age of ten or eleven until the present, occurring at different times in your life. There were suicide attempts in 2001 and 2007 following relationship problems. These symptoms, and nightmares regarding your childhood sexual abuse, have worsened since you have been in custody.
80 In June 2011, your grandmother died. She was especially important to you and you experienced a significant mental health decline. Your relationship with your partner declined. You spent more time away from home using drugs and mixing with a criminal element. You stopped working and pulled away from family members. You had significant drug debts and received death threats and suggestions of harm to your family. You claim not to have slept for about two weeks prior to the offending and that you were experiencing psychotic symptoms. You say you engaged in the offending to obtain money to pay off your drug debts. You told the psychologist that you did not know that there would be any persons present when you committed the aggravated burglary. If this be so, there would have been no need to take any weapons as there would be no-one to frighten or subdue. You said that you believed the children you confronted would have been very scared and terrified by your conduct and that this aspect of your offending had often played upon your thoughts and made you feel increased anxiety. Of course, the solution to that problem would have been to have walked away from the premises once you realised that the children were there.
81 Psychological testing conducted at the interview with the psychologist on 11 September last indicated that you were experiencing extremely severe levels of depression, anxiety and stress. You had an extremely low range of intellectual functioning and, according to the psychologist, your cognitive abilities were significantly limited and she suggested that you “…would likely have difficulties with everyday functioning, judgement and occupational achievement”. This assessment is not supported by your significantly stable work history and the planning activities you engaged in, as revealed in the taped discussion and other activities you had with co-offenders. Nevertheless, I note the psychologist’s comment that your scores suggest you would fulfil the criteria for an intellectual disability, but a full neuropsychological assessment is recommended in this regard.
82 You were diagnosed as having a number of mental health and personality problems. You have a polysubstance dependence for alcohol and illicit drugs; you are suffering a major depressive disorder which was present at the time of offending and which, combined with illicit substances and a deterioration in your mental health, resulted in reduced inhibitions, “…reduced impulse control, impaired decision-making abilities and a lack of consequential thinking”. You have post traumatic stress disorder which emanates from your dysfunctional and abusive childhood, which is chronic in nature. You have a generalised anxiety disorder. Finally, you suffer from extremely low intellectual functioning, such that according to the psychologist, it is possible your cognitive defects contributed to your offending behaviour in terms of increasing your vulnerability; being taken advantage of by others; being unable to express yourself in effective and meaningful ways; being unable to manage your life situation; and experiencing difficulties implementing appropriate, pro-social coping strategies. Whilst you were apparently experiencing psychotic symptoms in the lead-up to your offending and, in all likelihood these are said to have affected your ability to think rationally, this feature is not relied upon by you for Verdins purposes.
83 Various recommendations are made, including that you engage in an alcohol and substance use treatment program, undergo psychological and psychiatric treatment for your mental health disorders, including assessment as to appropriate pharmacotherapy, and treatment to increase your emotional and behavioural coping skills; the development of further work and education skills and, as I have already mentioned, there is a need for a full neuropsychological assessment and an adaptive functioning assessment. Close monitoring of you post sentence is recommended, particularly as to the management of any suicidal tendencies.
84 I have also received glowing character references from church leaders, Pacific island community leaders, family and friends. They indicate you are a good, hard-working family man, a person of great integrity with a non-violent disposition and an overarching concern for others in your community. Many spoke of the shock and disbelief they felt when learning of your offending, as it conflicted with the positive, decent person they know. Many spoke of the remorse which you have displayed for your offending.
85 Since you have been in prison these past two years, you have taken significant rehabilitative steps. Three urine screens taken between April 2012 and April 2013 reveal the absence of illicit drugs. This is consistent with your positive engagement in prison-based drug and alcohol treatment. You have successfully completed and obtained certificates in first aid and kitchen operations. You have successfully undertaken an anger and conflict management program, release-related harm reduction program, and developed communication skills. Significantly, in July this year you became a program mentor in the YMCA Bridge Project to provide positive knowledge and support for young offenders. In a reference I received, you have been described as a very valuable asset, leading by example and willing to share your own life experiences. You are described as accepting full responsibility for your offending and successfully graduated from the program in late September. As noted by the psychologist, this involvement has prompted you to undertake further social and youth studies courses so that, on your ultimate release from prison, you can support disadvantaged youth.
86 All of this good work has been facilitated by your deep commitment to religion, the support of your current partner and family members, who visit you regularly, and you undertaking an English literacy course to improve your reading and writing skills. The psychologist noted that you had developed insight into your offending, particularly its effect upon the child victims in the aggravated burglary matter, and remorse for your offending behaviour.
Ngaa – mitigating circumstances
87 There are a number of mitigating circumstances relied upon by your counsel, which I accept. The first is that you had a dislocated and dysfunctional childhood and adolescence which I have described. This was made more problematic by your extremely low range of intellectual capacity which suggests significant issues with everyday functioning, judgment and achievements. However, as I have already noted, that disability did not prevent you from engaging in planning and carrying out your offences; nor did it prevent you from being fully and productively employed for many years, or completing the significant courses and rehabilitative programs in prison which I have described.
88 Next, your life has been plagued by a significant alcohol and drug addiction, the intensity of which has at times caused serious problems for you. You suffer from significant mental health conditions and disorders which have been largely undiagnosed and untreated. By reason of the combined effect of your intellectual disability and the disorders I have described, I am satisfied that the Verdins principles are engaged to some extent, as conceded by the prosecution, so as to reduce your moral culpability for the offending and the principle of general deterrence, and because the burden of imprisonment will be greater upon you than another person with those conditions. Hence, the sentences to be imposed should be sensibly moderated for these reasons.
89 As to your pleas of guilty, I adopt and repeat everything I said about that topic to Murrell. Your counsel agreed that the plea discount on the aggravated burglary matter would necessarily be less than that on the other offences by reason of the delayed plea. Unlike Murrell, I am satisfied that your pleas on the conspiracy matter are associated with genuine remorse and regret for your offending, even though you were caught red-handed. However, your supposed remorse for the aggravated burglary matter was not reflected in the false alibi your relied upon and the contest you conducted on those offences.
90 I also adopt in your favour what I said to Murrell about the delay in this case.
91 Significantly, and in stark contrast to Murrell, you have no prior convictions. Having said that, it is clear by your own admission that you did constantly break the law in your chronic illicit drug activity. Indeed, it would appear that your involvement in this offending was, in part, caused by your desire to obtain money to repay drug debts. Nevertheless, I must treat you as a first offender and certainly someone who has no history of violent or dishonest conduct. Indeed, in light of the character assessments I have received, this offending would appear to be completely out of character for you.[7]
[7]I note that Mr Ngaa was arrested a few months before these offences, but later dealt with in February 2012 for criminal damage, assault and failing to answer bail, for which he was sentenced to an aggregate 42 days’ imprisonment and to two months’ imprisonment for trafficking amphetamine, which sentence was wholly suspended for two years. Counsel correctly submitted that this offending was consistent with Mr Ngaa’s rapidly escalating drug use leading up to the offending. This period of 42 days’ imprisonment is to be deducted from Mr Ngaa’s pre-sentence detention.
92 Over the past two years, you have demonstrated important rehabilitative tendencies whilst in custody. This reflects, I consider, the development of significant insight into your personal difficulties, as well as the seriousness of your offending. You have been assessed by the psychologist as appearing to pose a low to moderate risk for general and violent re-offending. Obviously, such a risk would be reduced by abstinence from alcohol and substance abuse and the avoidance of anti-social associates. You will be assisted in this regard by the continuing support of your partner and family members. You have a demonstrated genuine desire to improve your life and to help others through the YMCA program once released from prison. I am satisfied that you should be treated as having good prospects of rehabilitation. Whether that proves to be the case or not depends very much on your willingness to continue to address your personal problems and to make rehabilitative changes. I do consider that, as submitted, some allowance should be made for supervised rehabilitative efforts post-release by a lengthy parole period.
Other sentencing considerations
93 There are, of course, other important sentencing considerations that apply to both of you. The first concerns the maximum sentences provided, particularly that of 25 years for the aggravated burglary and conspiracy charges, which are applicable to the worst class of the offence in question and provide a guide to the seriousness with which a particular offence should be viewed. You both concede the seriousness of your offending and the appropriateness of lengthy, immediate prison sentences. This is hardly surprising in all the circumstances.
94 I have already set out my characterisation of the particular offending and the roles each of you played in it. That does not need repetition. I agree with the prosecution submission that the aggravated burglary and conspiracy offending was very serious and violent conduct with you both showing little regard for the safety of persons or property. And that you, Mr Murrell, were the principal instigator, planner and organiser, but also that you, Mr Ngaa, were an enthusiastic and willing participant, in both the planning and execution stage of the offending with which you were involved together. [8]
[8]In reaching that position, I have had regard to all the submissions as to roles, particularly that of Murrell’s that the other three offenders were mature and willing participants; that Saner and Kamal had prior criminal histories and that the only intercepted material was sourced from Murrell’s phone.
95 The principles of general deterrence, protection of the community and denunciation are all important considerations when sentencing for your offences, as you well as the mitigating circumstances I have mentioned.
96 Mr Murrell, you were an older and experienced criminal, particularly as to violent home invasions and armed robbery, and especially so when compared with your co-offender, Ngaa, Specific deterrence is a most important sentencing principle in your case.
97 In fixing sentences for both of you, I must have regard in your favour to the principles of proportionality and totality. The prosecution agreed that the sentences imposed upon Saner and Kamal were within appropriate range. The criminality occurred over a 19 day period and whilst there are good arguments for concurrency where offences were committed at the same time or in relation to the more significant offending, I will impose some orders for cumulation to reflect the commission of additional offences of a particular kind. Obviously, I must avoid the imposition of a crushing sentence, particularly given the institutionalisation which you suffer from, Mr Murrell, and given your lack of prior convictions, Mr Ngaa.
98 I must also consider the issue of parity, which is the principle that it is desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence. But as noted by the authorities, other things are not always equal and I must have regard to the personal circumstances of all the common offenders and the part which they played in the joint offences.[9]
[9]Lowe v R (1984) 154 CLR 606, 609-610, per Gibbs CJ, 613-614 per Mason J.
99 In this case, all is not equal between the co-offenders. You, Mr Murrell, have by far the worst criminal history; you played a greater role than the others and have the least prospects of rehabilitation. And, you have more offences than the others. You, Mr Ngaa, have no prior convictions, good prospects of rehabilitation and weightier Verdins considerations. Saner and Kamal were not to be sentenced for the aggravated burglary matter and Saner co-operated with authorities and gave an undertaking to give evidence against his co-offenders. Whilst I must consider parity issues generally when considering the offenders and roles played, and I have done that, at the end of the day, you and the other co-offenders have such different circumstances that different sentences are justified. I should note, respectfully, I disagree with the approach to cumulation adopted by the judge who sentenced Saner and Kamal.
100 The prosecution submitted that the appropriate range of sentence for you, Mr Murrell, was a head sentence of 14 to 16 years' imprisonment with a minimum of 12 to 14 years. In your case, Mr Ngaa, the prosecution submitted that the appropriate range was a head sentence of 8 to 10 years with a minimum of 6 to 8 years. I do not consider there is a sufficient gap between those proposed head and minimum sentences. Specifically, your counsel, Mr Ngaa, submitted that such a range would be a crushing sentence with a danger of you becoming institutionalised. It was submitted that the appropriate range for you, was a head sentence of 7 to 8 years with a minimum of 4 to 5 years. I consider this range is just below what it ought to be.
101 Finally, on behalf of the community, I denounce your offending in the strongest possible terms.
Sentence – Murrell
102 I will impose sentence upon your separately. Mr Murrell, please stand up.
103 You are convicted on all charges. On charge 1, conspiracy, you are sentenced to 6 years' imprisonment. On each of charges 2, 6, 10 and 11, being theft of motor vehicles, you are sentenced to 2 years' imprisonment and on each of those charges any licence held by you is cancelled and you are disqualified for 5 years. On charge 3, aggravated burglary, you are sentenced to 6 years' imprisonment. On charge 4, theft, you are sentenced to 2 years' imprisonment. On each of charges 5, 7 and 9, burglary, you are sentenced to 2 years' imprisonment. On charge 8, theft, you are sentenced to 2 years' imprisonment. On charge 12, being a prohibited person possessing an unregistered firearm, you are sentenced to 4 years' imprisonment.
104 On summary offence 1, possession of the taser, you are sentenced to 9 months' imprisonment and on summary offence 2, deal with proceeds of crime, you are sentenced to 9 months' imprisonment.
105 The sentence on charge 3 is the base sentence. I make the following orders for cumulation. Four years of the sentence on charge 1, 12 months of the sentence on charge 12, and 9 months on each of the sentences on charges 2, 5, 7 and 9, are to be served cumulatively upon the sentence imposed on charge 3 and upon each other. I intend that all the other sentences imposed are to be served concurrently.
106 The total effective sentence is 14 years' imprisonment. I order that you serve 10½ years' imprisonment before which you shall not be eligible for release upon parole.
107 I declare the period of 777 days pre-sentence detention be reckoned as already served on that sentence and that such declaration be entered in the records of the Court.
108 But for your pleas of guilty, I would have imposed a sentence of 17½ years’ imprisonment with a minimum of 14 years.
109 I shall make the forensic sample order sought by the prosecution, because of the seriousness of your offending, your prior convictions, the order is by consent and the granting of the order is in the public interest. Accordingly, pursuant to s.464ZFB(1) of the Crimes Act 1958, I order that the forensic sample and any related material and information obtained pursuant to your informed consent given on 2 November 2011 be retained for placement on the database. I shall also make the forfeiture and disposal orders which are consented to by you.
110 Mr Murrell, please sit down for the moment. I have now signed the appropriate orders and provide them to the prosecution.
Sentence – Ngaa
111 Mr Ngaa, please stand up. You are convicted on all charges. On charge 1, conspiracy, you are sentenced to 5 years' imprisonment. On charge 3, aggravated burglary, you are sentenced to 5 years' imprisonment. On charge 4, theft, you are sentenced to 18 months’ imprisonment. On charge 11, theft, you are sentenced to 18 months' imprisonment. On charge 13, possess handgun, you are sentenced to 12 months' imprisonment.
112 The sentence on charge 3 is the base sentence. I make the following orders for cumulation. Three years of the sentence on charge 1, and 6 months of the sentence on charge 13, are to be served cumulatively upon the sentence on charge 3 and upon each other. The sentences on charges 4 and 11 are to be served concurrently.
113 The total effective sentence is 8½ years’ imprisonment. I order that you serve 5½ year’s imprisonment before which you shall not be eligible for release upon parole.
114 I declare the period of 735 days pre-sentence detention be reckoned as already served on that sentence and that such declaration be entered in the records of the Court.
115 But for your pleas of guilty, I would have imposed a sentence of 11 years’ imprisonment with a minimum of 8½ years.
116 On charge 11, any licence held by you is cancelled and you are disqualified from obtaining another for 3 years.
117 I shall make the forensic sample order sought by the prosecution, because of the seriousness of your offending, the order is by consent and the granting of the order is in the public interest. Accordingly, pursuant to s.464ZFB(1) of the Crimes Act, I order that the forensic sample and any related material and information obtained pursuant to your informed consent given on 2 November 2011 be retained for placement on the database. I shall also make the forfeiture and disposal orders which are consented to by you.
118 Mr Ngaa, please sit down for the moment. I have now signed the appropriate orders and provide them to the prosecution.
119 HIS HONOUR: I should ask counsel, is there any issue with the mechanics of the sentences imposed?
120 MR STOUGIANNOS: Not from our side your Honour.
121 MS KARAPANAGIOTIDIS: No, your Honour.
122 MR MANDY: No, your Honour.
123 Mr Murrell and Mr Ngaa, you need to go with the prison officers now. Thank you. Please remove the offenders.
124 [Offenders removed]
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