R v Adrian Murray

[2009] NSWDC 407

CITATION:	R v Adrian MURRAY [2009] NSWDC 407
JUDGMENT DATE:	24 April 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Mr Murray is sentenced to 21 months imprisonment, wholly suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act, on the condition that he enter into a good behaviour bond for 21 months.
CATCHWORDS:	CRIMINAL LAW - sentence - aggravated break, enter and steal in company - prospects of rehabilitation - offence unsophisticated and unplanned - offence committed in company - significant relevant prior record - offence committed while serving suspended sentence - specific deterrence - weight to be given to guilty plea
LEGISLATION CITED:	Crimes Act 1900 s 113(2) Crimes (Sentencing Procedure) Act 1999 s 9, s 12
CASES CITED:	R v Falls [2004] NSWCCA 335
PARTIES:	Regina Adrian Murray
FILE NUMBER(S):	2008/2991
COUNSEL:	Ms C Mendes (for the offender)
SOLICITORS:	Mr Kiru (NSW Office of Director of Public Prosecutions)

JUDGMENT

1. I am sentencing a young man who has a troubled past. That troubled past has brought him into contact with the criminal law. He has a criminal record both here in New South Wales and in Queensland. He has committed yet another crime which is significantly serious and that is the crime I need to sentence him for. He has the enormous benefit of a strong and supportive family environment, particularly over the last 18 months or so. Therefore his prospects of rehabilitation feature significantly in this case and will have an impact on the sentence which I will impose.

2. First, I must start with what he is charged with and what happened. His name is Adrian Murray. He is charged with breaking and entering a school house with intent to steal. The offence is said to have been committed on 23 September 2007 and the offence is a crime under s 113(2) of the Crimes Act 1900 and carries a maximum of 14 years imprisonment. The offence is an aggravated version of breaking and entering and stealing because it was committed by Mr Murray when he was in company with other offenders.

3. Briefly, this is what happened. It was after midnight on 23 September 2007. Mr Murray had at the time, a drug and alcohol problem. He had been consuming drugs and alcohol that night. He was with two other young men, one of them 18. They were heading to one of the young men’s home when they stopped by the grounds of Charles Sturt University which has a campus in Dubbo.

4. The agreed facts, which are exhibit A, point out that the university is not on either the most convenient or direct route towards where they were going. They got into the university grounds when Mr Murray jumped over a gate. The gate was more than 2 metres high and it was opened by Mr Murray after he got in. His co-offenders all entered the grounds of the university and went through another gate. They tried to get into the university computer learning centre. They removed a couple of glass louvres from a window. However they were noticed by university employee who lived on the campus who alerted security. Both men challenged the young men. Mr Murray fled but surrendered himself a short time later and he was arrested. He claimed to the police that he was merely taking a shortcut and looking around on the campus. He spent six days in custody around a short time after his arrest.

5. Although there is some material in a pre-sentence report in which the author notes an account by Mr Murray which is inconsistent with the agreed facts contained in exhibit A, I will sentence Mr Murray on the facts as agreed in exhibit A. This is consistent with authorities referred to me by Ms Mendes, who appears for Mr Murray, in particular R v Falls [2004] NSWCCA 335.

6. I need to make a finding regarding just how serious an example of breaking and entering this crime is. I take into account that it appeared to be a fairly unsophisticated attempt to break and enter. Ms Mendes submitted that it was opportunistic and fuelled by youthfulness, drugs and alcohol. I think the drugs and alcohol explain the offence but many offences of these kinds are fuelled by drug and alcohol and I do not regard it as reducing the seriousness of the offence. I regard the offence as unsophisticated and not planned to any significant extent in advance. I do not accept the submission by Ms Mendes that it was opportunistic. It has some features which are consistent with that but I am more inclined to accept the assertion in the agreed facts that the university is not situated on a direct route to the destination that the young men were heading towards.

7. As I say, I do not regard the offence to be the result of any significant planning but there was obviously some thought given to taking a route which brought them by the university so that there was some limited degree of planning. I do accept that there’s no evidence that the young men knew what was actually inside the building. There was no actual theft of any property although the louvres were removed from the window. An indication of the unsophisticated nature of the offence is that the equipment in the building would have presented a serious logistical problem in being removed from the building. I regard the offence as being within the lower range of objective seriousness for these offences.

8. There are two matters acknowledged by Ms Mendes which are aggravating factors which I need to take into account in determining the appropriate sentence for Mr Murray. One is that he has a criminal record, including for property offences and the other is that he committed this offence whilst he was on a suspended sentence.

9. Mr Murray who is now 23, was dealt with by the Children’s Court at Dubbo in 2003 for an offence of destroying or damaging property and resisting police. He was also dealt with for assaulting a police officer. He was put on probation for those offences. However he also has a criminal record in Queensland where he has spent some time as a young man. That record includes stealing and unauthorised use of shop goods as well as trespassing and possession of property suspected of being stolen. Significantly, it also includes a conviction of entering premises and committing indictable offence. In fact, it includes a number of offences of that kind.

10. Significantly, the last offence committed in Queensland occurred on 10 November 2004. That again was breaking and entering and committing an indictable offence. Mr Murray was put on probation and ordered to pay $600 in restitution. That occurred Maroochydore Magistrates Court on 21 April 2005. About 18 months later, he reappeared before the Maroochydore Magistrates Court on a charge of breaching the probation order. I accept Ms Mendes’ submission that there is no evidence to suggest that that breach was the result of any behaviour which resulted in a charge or a crime. The most likely explanation for the breach is a failure to pay the restitution of $600.

11. More significantly, when the Maroochydore Magistrates Court was dealing with that breach on 9 November 2006, it sentenced Mr Murray to six months imprisonment but suspended that sentence for two years. The reason that it is significant is relevant to the second aggravating feature, namely, that when Mr Murray broke and entered Charles Sturt University, he was still serving that suspended sentence from Queensland.

12. The two features realistically acknowledged by Ms Mendes are aggravating because a record of break and enter convictions clearly means that I need to take into account in sentencing Mr Murray, a requirement that a sentence deter him from committing these crimes of offences again. One of my functions in sentencing someone is to bear in mind the protection of the public. Offenders such as Mr Murray, given his crimes that he has committed in the past, take it upon themselves to break and enter the houses and businesses of individuals and companies. Any sentence has to reflect that Mr Murray has done this a number of times and must be deterred from doing it again.

13. The fact that he committed this crime whilst on conditional liberty is aggravating because another court sentenced him to imprisonment but allowed him some leniency by not ordering him to serve the sentence in prison. Instead it released him into the community for two years. Obviously the court which made that decision was trusting Mr Murray that he would not use the liberty granted by the court to commit further crimes within the community. He abused that liberty by breaking and entering the Charles Sturt University property in Dubbo. That is why those two factors are aggravating features so far as the sentencing of Mr Murray is concerned.

14. I have a good deal of information about Mr Murray’s personal circumstances. There are two pre-sentence reports and a psychiatric report and Ms Mendes has called as a witness his grandmother, Mrs Murray. He has a history of abusing alcohol from a young age and of using cannabis as well. He has a history of mental instability. One of the pre-sentence reports notes half-a-dozen or more suicide attempts and that he has been prescribed anti depressants. He has seen a psychiatrist in the past. The pre-sentence report emphasised the need for drug and alcohol assessment and mental health intervention and counselling.

15. When Mr Murray’s grandmother, Mrs Murray, gave evidence this morning, she explained that Mr Murray had never known his natural father who last had contact with him when he was about six weeks old. In fact he assumed that another man was his father until he was about 10 or 11 years of age. When he was told that the other man was not his father, that had an impact upon him and his family. His then family his grandmother described as disowning him. Understandably that had a big effect on Mr Murray who, as his grandmother described, started doing silly things. His education has been in both New South Wales and Queensland. He got to Year 10 but did not complete a TAFE course that he was undertaking at that stage. His grandmother has always remained in touch with him even when he was living with his own mother in Queensland. However, since 10 October 2007, he has lived with his grandmother, Mrs Murray, in Dubbo. That’s when he was released from custody after being arrested for this offence.

16. Mrs Murray described his bail conditions. He has been subjected to a curfew and has had to remain inside her home between 8pm and 6am for the last 19 months since 10 October 2007. It has obviously a significant negative effect on his social life. He was, for some period, reporting to the Dubbo Police everyday, although that has been reduced over the last 12 months or so to three times a week. He normally cycles the 8 kilometres from his grandmother’s home to the Dubbo Police Station to report.

17. Mrs Murray has noticed that his behaviour has improved since he has been living with her. He is not as cranky or agitated and his alcohol consumption is significantly reduced. She has never seen him drunk at home. So far as she is concerned, he does not take any drugs. He lives with his grandmother and his grandfather and two brothers as well as a foster child aged 13 who lives in the Murray household. He gets on well with the foster child who is a young boy and they are like brothers.

18. To his credit, he has resumed a TAFE course commencing on 9 February 2009. The course is a certificate in horticulture. He is undertaking three days a week at present and hopes to increase that to a full-time course from June. He’s acknowledged to his grandmother that he has done a stupid thing and cried at the time that he told her. His grandmother confirmed that when he was in custody for about six days after his arrest on this charge, he was on protection and on suicide watch which is confirmed by exhibit 4.

19. Ms Mendes tendered a report by a very experienced forensic psychiatrist, Dr Allnutt, who saw Mr Murray on 13 January this year. Dr Allnutt expressed the opinion that when he saw Mr Murray, he was suffering from some mild residual depressive symptoms although he would not admit the criteria for full-blown depression at the time of the consultation. The doctor thought that a noted history of mood disorder or mood fluctuations were consistent with a diagnosis of mood disorder which was probably a Bipolar Affective Disorder. He thought that his psychiatric history appeared to be consistent with such a mood disorder. Significantly, he thought that at the time of the offending, Mr Murray was exposed to a number of active factors, including a depressive disorder at the time.

20. Mr Murray’s co-offenders have both been sentenced. The young man who was under 18 was sentenced by the Childrens Court at Dubbo on 17 December 2007. He was given a suspended control order of 12 months. That young man had a significant criminal history, including dishonesty and violence. The other co-offender was sentenced by Judge Norrish QC at the Orange District Court on 20 June 2008. His Honour gave that co-offender, who was over 18, a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. His Honour noted a plea of guilty and significantly no previous criminal history insofar as that offender was concerned.

21. Ms Mendes has urged me to take into account the conditions of her client’s bail being very restrictive - as they are - and I regard that and his pre-sentence custody under restricting conditions as relevant to determining his sentence.

22. The statistics produced by the Judicial Commission for this offence record that only two offenders received prison sentences in circumstances where those offenders had similar characteristics to Mr Murray, namely prior convictions, a plea of guilty and a young age.

23. Given the nature of this crime, including the maximum of 14 years imprisonment and the fact that Mr Murray has a previous record of just this sort of criminal behaviour and that he was on conditional liberty at the time, I do not regard any penalty other than imprisonment as appropriate in this case. It seems to me that an appropriate penalty for this sort of crime is in the region of three years imprisonment. However, I accept Ms Mendes submission regarding the impact of her clients mental health condition and the reduced significance of general deterrence.

24. On the other hand, it seems to me, which I have had regard to in fixing a suitable penalty, that individual deterrence is very significant in this case. I also regard Mr Murray’s prospects of rehabilitation as having improved significantly over the time that he has been living with his grandmother. Bearing all that in mind, I am inclined to reduce the overall sentence to two years imprisonment.

25. Mr Murray has pleaded guilty to the charge. The law entitles him to a discount because of that plea of guilty. His plea has not been a straightforward matter. He changed his mind at one stage late last year after getting legal advice and pleaded not guilty. Ms Mendes’ suggestion is that it should be 15%. Mr Kiru acknowledges the range but argues that it shouldn’t be as high as 15%. I am inclined to agree that 15% is a little on the high side. I propose to discount Mr Murray’s sentence of two years from 24 months to 21 months imprisonment which reflects a discount of something over 10%.

26. Alright Mr Murray, stand-up. For the offence of aggravated breaking and entering with intent to commit a serious indictable offence, I convict you. I sentence you to 21 months imprisonment for that offence. Under s 12 of the Crimes (Sentencing Procedure) Act. I make an order suspending the execution of the whole of the sentence for the whole of the period of 21 months and I direct you to be released from custody on condition that you enter into a good behaviour bond for 21 months.

27. The conditions of your good behaviour bond are these. One, that you be of good behaviour. Two, that you notify the registrar of this court of any change in your residential address. Three, that you accept supervision from the Probation and Parole Service including accepting any reasonable recommendations and directions from them regarding alcohol and other drug assessment, including follow-up intervention as required and any mental health intervention and counselling.

28. I recommend that a copy of exhibit 5, being Dr Allnutt’s report, be provided to the Probation and Parole Service.

Now, Ms Mendes and Mr Kiru, perhaps the first thing I’ll ask is whether there are any other conditions of the good behaviour bond that I should impose or not?

KIRU: Your Honour, to be called upon before your Honour for any ..(not transcribable)..

MENDES: Just in relation to the supervising office being Dubbo, your Honour.

29. It is a further condition that you attend court, this court, the District Court, if at any time you are called upon to do so. You should report in the next seven days to the Probation and Parole office at Dubbo.

Any other conditions?

MENDES: No, your Honour.

KIRU: No.

HIS HONOUR: Have a seat Mr Murray.

Any submissions on the form of the sentence? Anything that I have omitted or anything so far as the formal sentence is concerned?

MENDES: No, your Honour.

HIS HONOUR: No. Any submissions about errors that I’ve made, in the remarks?

KIRU: No, your Honour.

HIS HONOUR: No. No, Ms Mendes?

MENDES: No, your Honour.

HIS HONOUR: Alright. Now, Mr Murray, I’ve got to explain this to you.

30. You’ve a got a prison sentence. Your prison sentence is 21 months. It was going to be two years but because you’ve pleaded guilty - which helps the system - I’ve reduced it to 21 months. I think I’ve got my sums wrong and you’ve benefited from that but anyway, you’ve got a 21 month gaol sentence. I’ve suspended that.

31. You understand what that means because you’ve had that before in Queensland but like in Queensland, there are conditions. You’ve got to behave yourself. Stay out of trouble. So if you get into trouble, you’ll be back before me and can I tell you, which I’m sure Ms Mendes has explained, a bond which goes with a suspended sentence is not just like an ordinary good behaviour bond. Your mate, MacDougall, got an ordinary good behaviour bond from Judge Norrish because he didn’t have any criminal record.

32. If you break a good behaviour bond with a suspended sentence, two things happen. One is you’ll come back before me and the second thing is, the law makes it very hard for a judge not to send someone to gaol if they breach a suspended sentence good behaviour bond. It’s very hard and so it’s almost guaranteed that you have to go to gaol if you breach it. So that’s what you’ve got to do. You’ve got to stay out of trouble. It sounds as though you’ve been doing that for some time which is really good. Now I’ve recommended that you take Probation and Parole Service. Get them to assist you. They’re good at that. They know what they’re going. They’re experienced. You’ve obviously got a history with drug problems and alcohol problems and you’ve got mental health issues. Take their advice. Listen to them. They’re used to dealing with people in your position and they’re experienced.

33. If you change your address, you’ve got to let the registrar of the District Court know and if you get a notice saying that you’ve got to come back to court, you’ve got to come back to court.

Now do you understand all of that? It lasts for 21 months and if you breach it, as I said, you’ll be back before me and you get the 21 months as the gaol sentence from whenever you did it. If you get to 20 months and you breach it, okay, you’re in trouble. Do you understand all of that?
OFFENDER: Yes, I do.

HIS HONOUR: Okay.

34. As you can see, I’ve been very impressed by your grandmother and the home she’s providing you and you’re in a good place and you should keep on with your efforts with TAFE. Get your life back on track which obviously you have been doing and stay out of trouble. Alright, you can come out of the dock now. Good luck

MENDES: May it please the court.

HIS HONOUR: My associate will - I think your client has to enter into the bond, in the registry, is that right? Yes. She’ll need to type something up which I’ll sign in chambers. I guess that needs to go to the registry so she’ll take that downstairs. Look, why don’t you go and have some lunch and come back to the registry at a quarter past 2. By that stage, the document will be down there and your client can be signed up. Does that make sense?

MENDES: Yes, your Honour. Thank you.

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