Murtagh v State of Tasmania

[2011] TASCCA 5

[2011] TASCCA 5

COURT:             SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:              Murtagh v State of Tasmania [2011] TASCCA 5

PARTIES:  MURTAGH, Steven Craig
  v
  STATE OF TASMANIA

FILE NO/S:  960/2010
DELIVERED ON:  2 June 2011
DELIVERED AT:  Hobart
HEARING DATE:  2 June 2011
JUDGMENT OF:  Evans, Blow and Wood JJ

Edited version of oral reasons

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Crimes committed in prison – Assaulting correctional officer, unlawfully injuring property.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  A Shand
Solicitors:
           Appellant:  In person
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2011] TASCCA 5
Number of paragraphs:  16

Serial No 5/2011

File No 960/2010

STEVEN CRAIG MURTAGH v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  EVANS J

BLOW J
WOOD J
2 June 2011
(Edited version of oral reasons)

Order of the Court

1. Appeal dismissed.

Serial No 5/2011
File No 960/210

STEVEN CRAIG MURTAGH v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

(Delivered orally)  EVANS J

BLOW J
WOOD J
2 June 2011

1. The appellant appeals against the sentence imposed on him upon his plea of guilty to one charge of assault and one charge of unlawfully injuring property.  The sentence was two and a half years' imprisonment, cumulative upon any sentence of imprisonment he was currently serving.  It was ordered that he not be eligible to apply for parole until he had served two years of that imprisonment.  His sole ground of appeal is that the sentence was manifestly excessive.

1. On 13 December 2009, the appellant was an inmate in the medium security section at Risdon Prison.  Two correctional officers moved to a group of about six prisoners, which included the appellant, because the group was acting in a way that the officers considered to be suspicious. 

1. Correctional officers Craig Graham and Robert Paul approached the group to investigate the behaviour of the inmates.  After asking an inmate wearing a raincoat to reveal his identity, that inmate approached Mr Paul and punched him in the face.  At this time the appellant launched an assault on Mr Graham, the complainant.  He punched the complainant to the side of the face three times.  The complainant tried to get away but the appellant continued to punch him.  The complainant ultimately went to the ground where he tried to shield his head with his arms and hands.  Whilst on the ground the appellant continued to punch the complainant before kicking him to the head and face at least three times.  Whilst this was occurring the appellant was seen to be laughing.

1. As the complainant was being attacked by the appellant, another inmate, Dallas Eaves, became involved in the assault.  He crouched over the complainant and punched him to the head and face using both fists.  During the assault one of the inmates attempted to obtain the complainant's keys.

1. Mr Paul, who had been assaulted by other inmates, used his radio to call for assistance.  Other correctional officers arrived and led the complainant from the yard.  At this time the appellant and Eaves threatened to assault another correctional officer.  The appellant, together with Dallas Eaves and several other inmates, then ran to the tennis court where they began arming themselves with items, including steel poles, tennis racquets and plastic cricket wickets.  At this time several of those involved began concealing their faces by wrapping T-shirts and jumpers around their heads, creating makeshift balaclavas.  The correctional staff then left the medium security precinct for their own safety.  The appellant, still in the company of other inmates, then approached a window in the education building and he removed the grill from it.  The window was smashed using one of the items taken from the tennis court.  The appellant, along with three other inmates, then entered the building.  Whilst inside the building damage was caused to office equipment and six desktop computers, four laptop computers, and two large photocopiers were destroyed.  Several small fires were also lit in the building which caused minimal damage.  As fire sprinklers were activated the building was also subjected to water damage.

1. During this incident another inmate gained access to a prison radio and made threats about having hostages. He also threatened the safety of staff if they entered the precinct.  The tactical response group was called in to resolve the incident.  The cost of repairing the education building and replacing the destroyed contents came to $57,033.84.  However, there were other flow-on costs amounting to $59,166.79.  In total, the cost impact of this incident came to $116,200.63.

1. Mr Graham sustained a fractured eye socket and swelling and bruising to his face.  He was taken to the Royal Hobart Hospital where a plate was inserted to repair the fracture.  He suffered a high degree of pain.  His sight was affected and another operation was required.  He continues to suffer from double vision, and he has required psychological counselling.  It is possible that he may have a permanent disability affecting the movement of his left eye.  He did not return to work for over five months.

1. The appellant has an appalling record of prior convictions for a person of his age.  In brief summary his relevant prior convictions are:

Aggravated assault	1
Assault	2
Attempted aggravated armed robbery	1
Aggravated robbery	1
Injure/destroy property	3
Unlawfully set fire to property	2
Stealing	16
Burglary (including aggravated burglary)	19
Motor vehicle stealing	8
Dangerous/negligent driving	2

1. Mitigatory matters raised in the course of the appellant's sentencing hearing included:

·    His age, he was a relatively young man, aged 23.

·    He had pleaded guilty.  However, the prosecution had a strong case against him in relation to the charges.

·    He retained the support of his parents who were in a long-standing and settled relationship.

·    He has a five year old child who is a source of motivation for his rehabilitation.  He sees the child fortnightly when visits are not interrupted by prison unrest.  The child's mother brings their child to the prison.  He continues to get on well with her, although she has entered into a new relationship.

·    Upon his eventual release he has the possibility of employment with a steel fixing company, carrying out work on the Brighton by-pass.

·    He has shown an interest in undertaking drug and alcohol rehabilitation programs.

·    His time in custody has been very difficult for him.  Although, it must be said, that this is largely a consequence of his misbehaviour in prison.

1. Whilst it is no doubt correct that the appellant's five year old child is a source of motivation for his rehabilitation, to date, any good intentions he has in that regard have been subservient to his willingness to re-offend.  A urine test taken from the appellant at the time of the crimes in question returned positive for drugs.  Whilst in prison he has continued to offend.  On 21 August 2008, he committed two assaults, one against a fellow prisoner and the other against a correctional officer.  Five days later he set fire to items in his cell. 

1. His offences whilst in custody are particularly significant in view of the nature of the crimes that the appellant fell to be sentenced for.  They are also significant to the application of the principle of totality.

1. The appellant has been in custody since 15 September 2006.  By reason of the principle of totality, each of the sentences imposed on him for the crimes he committed in August 2008 were significantly reduced.  That reduction has been of no effect.  He has continued to offend whilst in prison.  Although the learned sentencing judge paid regard to the principle of totality when imposing the sentence subject to appeal, and, for this reason, reduced it by six months, the time has probably passed for paying significant regard to the totality principle in the appellant's case.  As past reductions to his sentences based on this principle have served no purpose, he was fortunate to again get the benefit of it. 

1. The appellant's crimes were most serious breaches of prison discipline.  The first was a vicious, unprovoked, cowardly and sustained assault upon a correctional officer acting in the course of his duty which caused serious injuries that have an ongoing and adverse impact.  The second, again was most serious as evidenced by the quantum of damage that was caused.  In the circumstances, a sentence of two years and six months' imprisonment was well within the range that was appropriate to the appellant's crimes and far from being manifestly excessive.

1. Dallas Eaves was sentenced to two and a half years' imprisonment for his part in the events in question.  There is no basis for concluding that for reasons of parity the sentence imposed on the appellant is out of order when compared to that imposed on Eaves. 

1. We turn to parole eligibility.  In the light of the appellant's prior convictions and his ongoing offending whilst in prison, it would have been open to the learned sentencing judge to decline to make the appellant eligible for parole on the basis that there was no good reason for mitigating his punishment in favour of rehabilitation.  Nonetheless, probably in view of the appellant's comparative youth, his Honour gave him the opportunity to apply for parole after serving all but six months of the sentence.  This provides him with some inducement to reform.  That this inducement is relatively modest does not render this aspect of the sentence manifestly excessive, bearing in mind the seriousness of the appellant's crimes, his appalling record and the continuation of his offending whilst in prison. 

1. The appeal is dismissed.