R v Brian Joseph Murphy

[2002] NSWSC 150

CITATION:	R v Brian Joseph Murphy [2002] NSWSC 150
FILE NUMBER(S):	SC 70076/01
HEARING DATE(S):	8 and 22 February 2002
JUDGMENT DATE:	4 March 2002
PARTIES :	Regina Brian Joseph Murphy
JUDGMENT OF:	Buddin J

COUNSEL :	P Miller (Crown) Ms C Lyons (Offender)
SOLICITORS:	SE O'Connor (Crown) Legal Aid Commission (Offender)
CATCHWORDS:	Plea of guilty to manslaughter - substantial impairment - relevance of general deterence - future dangerousness - plea of guilty - special circumstances
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Blacklidge NSWCCA, 12 December 1995, unreported R v Engert (1996) 84 A Crim R 67 R v Hill (1981) 3 A Crim R 397 R v Thomson & Houlton [2000] 49 NSWLR 383 Veen (No 1) (1979) 143 CLR 458 Veen (No 2) (1987-88) 164 CLR 465 R v Wright (1997) 93 A Crim R 48
DECISION:	Sentenced to 7 and a half years imprisonment to date from 27 May 2001. Non-parole period of 4 years. First date upon which eligible for release on parole is 26 May 2005.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BUDDIN J

MONDAY 4 MARCH 2002

70076/01 - REGINA v BRIAN JOSEPH MURPHY

JUDGMENT

1 On 27th May, 2001 the offender was charged with the murder of Robert Eernisse at Umina. He has been held in continuous custody since that date. He first appeared for arraignment on 5th October, 2001, when the matter was adjourned to allow time for medical reports to be prepared.

2 On 7th December, 2001, the offender pleaded not guilty to the charge of murder but guilty to a charge of manslaughter. The Crown accepted that plea in full satisfaction of the indictment. The plea entered by the offender was accepted by the Crown on the basis of medical evidence which established that his capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition such as to attract the operation of s. 23A of the Crimes Act, 1900.

3 The offender and his wife, Dian Deering, married in 1988. They have two sons – Andrew, aged 12 and Luke, aged 9. The family moved from Cronulla to Umina in about 1997 and the offender commuted from there to his job at Franklins, in Caringbah, a trip that required over 4 hours of travel each day. In April, 2000, the offender’s wife told him she wanted to separate, having been unhappy in the marriage for several years. The offender did not respond favourably to this news and constantly expressed the view that he wanted to stay with the family and try and work things out.

4 His wife made it clear that she did not want to continue with the marriage and that she intended filing for divorce. The offender finally left the matrimonial home in November 2000, and moved into a cabin at the rear of a house in the same suburb. He regularly broached with his wife the possibility of returning to the family home. He continued to maintain regular contact with his sons.

5 From about December, 2000, the offender reportedly became increasingly depressed. He then became aware in about March, 2001, that his wife was in a relationship with the deceased for whom he instantly formed an intense dislike. The offender found it particularly difficult to accept that his wife had formed a relationship with another man. Inevitably there were occasions on which the offender crossed paths with the deceased. They usually ended in acrimony. At times there were arguments about whether the young children were being properly looked after and about the offender’s desire to have access to them. On one occasion the offender communicated a message via his son to the deceased which could have been interpreted as an implied threat to kill the deceased. Having had regard to all the material before me, I am not persuaded to the requisite standard, that it should be so interpreted. Clearly enough however the relationship between the offender, his ex-wife and the deceased was very volatile. Nevertheless I will proceed upon the basis that there was no history of violence or threats of violence involving the relevant parties that has any present significance.

6 In April and May, 2001, the offender had a number of admissions to Mandala Clinic, having threatened or attempted suicide. That is a matter to which I will return in due course.

7 During the evening of 26th May, 2001, Ms Deering and the deceased attended functions with friends at Ettalong Bowling Club and Ettalong Beach Memorial Club before returning to what was the offender’s former matrimonial home. The deceased had left his car at the Bowling Club. The couple retired to bed. In the early hours of 27th May, 2001, Ms Deering was awakened by a loud groaning sound coming from the deceased. She saw the offender standing beside the bed with a blood-stained knife in his hand. She saw him stab the deceased in the chest area. She screamed at the offender who left the bedroom still carrying the knife. Ms Deering pressed a pillow against the deceased’s side and called ‘OOO’. She could hear the offender yelling out, “I told him to stay away from my wife”.

8 When he was not living at the rented cabin, the offender had been staying on a casual basis with two friends, Peter Fannucchi and Kathy Russell, at a place in Umina, which was a fifteen minute walk away from where Ms Deering lived. The offender stayed with them on the night of the 26th May, 2001. Mr Fanucchi observed the offender to be, “…deep in thought…dazed and distant.” About 5.00 am on 27th May, 2001, Mr Fanucchi was awoken by the light being turned on in the lounge-room. He believed that it was the offender who had turned it on. At about 6.40 am he was again awoken, on this occasion by the phone ringing. The offender was on the end of the line and said, “I think I’ve killed him.” Fanucchi said, “Who did you kill?” The offender said, “Rob.” He overheard the offender say, “I love you,” and “I have been trying to get shock treatment.” He heard Ms Deering reply, “You bloody don’t need shock treatment…Put the phone back on the hook”.

9 One of the first Ambulance Officers at the scene, a Mr Donaldson, having observed the extent of the injuries to the deceased and the lack of any vital signs, decided not to attempt to resuscitate him.

10 When the police first arrived at the premises, they were approached by the offender who held out his hands and said, “I did it. I stabbed him. I don’t have anything on me, the knife is just inside the door.” The offender was taken to Gosford Police Station where he was spoken to by Detective Senior Constable Ashby, after having consented to standard form forensic tests being performed upon him.

11 The offender told police that he had first gone to the former matrimonial home at about 12.30 am with the intention of throwing a brick through the deceased’s car window. (Q/A 36-41). The car however had not been there. The offender said that he had returned at about 6.20 am and, noticing that the car was still not there, had let himself into the house through an unlocked back door. He said that he had seen that the bedroom door was half open, and that he had gone in and seen the deceased lying next to his wife (Q/A 56). He said that the deceased had woken up and, “…that I went bang, you know, two or three times…I just snapped …I wanted to hurt him but I didn’t want to kill him…I was hoping if he woke up and seen me maybe I’d scare him.” See also Q/A’s 60; 123-124.

12 The offender referred to his admissions to Mandala Clinic, and said, “[I] begged Mandala… when I was in there before ‘cause I just thought if I can get some sort of shock treatment it would take away the feeling I have for Dian constantly, constantly, you know, part of my mind is just thinking about her all the time, you know.” (Q/A 81-82.) As to his medication, he said, “Maybe I should have stuck with it, I dunno, I just didn’t. I haven’t been taking it because it makes me feel sick…I couldn’t remember the last time (I had my medication)” (Q/A 90-93).

13 Dr Oettle, a Forensic Pathologist, conducted a post-mortem examination of the deceased at Gosford Hospital on 28th May, 2001. He found that the deceased had suffered 7 stab wounds, 4 of which were to the chest area and 3 to the right leg. Two of the stab wounds had penetrated the chest and abdomen causing injuries to both ventricles of the heart as well as to both lungs and to the liver, leading to massive blood loss.

14 The offender was psychiatrically assessed on his behalf by Dr Bruce Westmore. In his report of 22nd October, 2001, Dr Westmore expressed the opinion that the offender was suffering from a major depressive illness at the relevant time. He concluded that the offender was suffering from an abnormality of mind, specifically the major depressive illness, which would have substantially impaired his capacity to control his actions in relation to the deceased. Dr Westmore neatly encapsulates in his report the events which culminated in Mr Eernisse’s death:

He appears to have been unable to accept the breakdown of his marriage and acknowledged being angry with some of his wife’s behaviour which he felt was influenced by the deceased. Specifically he was angry that his wife would leave the children at home while she went out at night. He acknowledges having some feelings of anger and this initially led him to take a knife to his ex-wife’s home where he planned to damage the deceased’s motor vehicle.

I believe his finding the deceased in bed with his wife precipitated him into an action of extreme violence towards the deceased, leading to that man’s death. The presence of his depression, specifically a major depressive illness, was a significant factor in what I believe was his loss of control in that situation.

15 The offender was also seen by Dr Olav Nielssen at the request of the Crown. In his report of 19th November, 2001, Dr Nielssen formed the opinion that the offender had suffered from a major depressive episode at the relevant time, displaying the full symptoms of major depression including disturbed sleep, loss of weight, impaired concentration, lack of energy, morbid ruminations and thoughts of suicide. Dr Nielssen came to the view that the offender’s depressive illness resulted in an abnormality of mind leading to substantial impairment of his perception of events, his judgment and his capacity for self-control. His illness was, in Dr Nielssen’s view, at the more severe end of the depressive spectrum.

16 Both psychiatrists had access to medical records relating to the offender’s admissions to Mandala Clinic in the months before the fatal episode. I have received a report dated 14 February 2002 from Dr Darcy, a psychiatrist at Mandala Clinic. The contents of that report are set out below:

I have been asked to comment on the circumstances of each of the four admissions of Mr Brian Murphy to Gosford Hospital for psychiatric treatment.

On 9th April 2001 he was admitted to Mandala Clinic when he was brought in by the police after a Schedule 2 Certificate written when the Acute Care Team had gone to his house after a call which may have come from his ex-wife saying that he was suicidal. He had stated that he did not want to live and would throw himself under a train. He stated that he was due in court the next day but he would not go. He described himself as “down” and “useless”. He had separated from his wife some months before. He was considered to be depressed due to situational factors in his life. He was irritable and sullen and claimed he had been deceived by his ex-wife who was concerned for his safety and called the Mental Health Service asking for help for him. He was not mentally ill when I saw him the next morning but still threatened to kill himself rather than go to court. He was adamant the ex-wife should withdraw the charges against him and should take him back. He signed a voluntary admission form on 12th April 2001, was treated with antidepressant and his mood improved. He was discharged on 15th April 2001 and planned to live with friends in Umina. On 26th April 2001 he was admitted to Mandala Clinic as a voluntary patient after he had been brought in by police under Section 24 of the Mental Health Act for assessment when he went to the police station stating that he was going to harm himself. He had considered throwing himself under a train because things in his life had become too overwhelming for him. His main complaint was that he felt lonely and unsafe in his house at night. Accommodation was arranged for him at Matthew Talbot Hostel but he went to stay with a friend at Ettalong. He was given antidepressant tablets and follow-up by the Acute Care Team was arranged.

On 7th May 2001 he was found sitting in a chair outside his house at Umina conscious and alert after he took an overdose of some diuretic tablets. He at first refused treatment but then agreed to be taken by ambulance to Gosford Hospital. He absconded but was chased by the ambulance officer. He was restless and hostile in his manner. He was reviewed in Accident & Emergency by the Mental Health Team and told them of relationship and financial troubles. He had formed a friendship with another female patient when he had been at Mandala and it was found that she had been recently re-admitted to Mandala. On assessment it was thought that he was at risk of further attempts of self-harm but that past admissions and attempts to engage him in treatment had failed to change his mental state. He was discharged from Accident & Emergency and not admitted to the psychiatric ward.

On 10th May 2001 he was again brought into the Accident & Emergency Ward by the police after threatening to jump in front of a train or a bus. It was thought that he took “a handful of Indocid tablets” but he was showing no symptoms of this. He was refusing treatment. He was admitted on a Schedule 2 Certificate by the psychiatric registrar who saw him but he later signed a voluntary admission form. He told staff he had been spending time recently with his wife seeking reconciliation and felt out of control and in crisis when his wife rejected this idea. He said he took tablets then and ran out into traffic.

In discussion with the social worker to explore his feelings of anger and resentment he stated that he was a good husband and provider and had done nothing wrong. “If she had a problem why didn’t she discuss it with me”. He spent a lot of his time looking into obtaining some of his superannuation money and discussing accommodation.

He was discharged on 16th May 2001 stating that he would stay in his cabin overnight then go to stay with a male friend the following day. A friend later came and picked him up to take him home.

In reading the file it seems to me that he felt a strong entitlement to his wife and little consideration of what she might want. The multiple suicidal actions and threats seemed aimed, perhaps unconsciously, at getting himself cared for by others. His mother had several admissions to Callan Park Hospital and died when he was only 14 years of age and because of her frequent absences from the family he was largely brought up by his aunt. His father and a brother had serious alcohol problems and his father left him when his mother died. Because of these circumstances in his early life he may have been sensitised to loss of nurturance and the desertion of him by his wife, as he sees it, may have had more significance to him than it might to other people. He himself stated that he had a “good childhood”.

17 Dr Darcy in his report refers to a court appearance which the offender was due to make on the day after his initial admission to Mandala Clinic. According to the clinic’s discharge summary that appearance was in respect of an incident involving the offender and a man who was described as his ex-wife’s “new partner” and for whom she had left the deceased.

18 A supplementary report was prepared by Dr Nielssen dated 13 February 2002. It is apparent from that report that the offender is responding well to treatment and is using his time whilst in custody productively. The relevant parts of the report are set out below:

Mr Murphy said that he “felt fine, mentally and physically”. He said that in the period before the offence he “reached the point that I was at my lowest”. He said “I had a severe depression…I was not insane, but I had a chemical imbalance”. He said “I couldn’t do anything, I couldn’t function, I couldn’t organise myself or enjoy anything”.
Mr Murphy said that as a result of treatment he said he was “ninety percent better, nearly back to my old self” and “as well as I could be in a place like this”. He said he was able to sleep through most nights, felt physically well and had energy to work. He said that he had been able to complete a computer course and also participate in music and art.
He said that he had been working 30 hours per week assembling headsets and had been able to send a small amount of money to his children. He said that after his eventual release his “main priority will be to get back to work and to make up for lost time with the kids”. He said that he did not want to return to retail and said that he hoped to be able to complete some kind of course to help him with employment after his release from gaol.
Mr Murphy said that he had received considerable support whilst in gaol, including visits from his wife’s brother and sister and his wife’s niece. He said that his wife’s family had brought his sons to visit and had been supportive of him because “they knew the full story”.
Mr Murphy said that he had received offers for accommodation, but said that he hoped to eventually settle in the Sutherland Shire where he would have access to recreational opportunities with his boys.
Mr Murphy said that he had no contact with the victim’s family, and said that he had no desire to communicate, and said “what could I say…it wouldn’t change anything”.
Mr Murphy said that he still has feelings for his wife but said that he accepted that the relationship was over and said that he did not want to have any contact with her. He said that he expected he would have to speak to his wife at family events involving the children, but said that he expected to be civil and avoid any argument.
Mr Murphy said that he was continuing to receive treatment with antidepressant medication, Venlafaxine 150 mg twice a day, and was also seeing a psychologist every week. He said that he felt as though he had largely recovered from depression, but accepted the advice to continue treatment. He said that now that he understood depression better he would seek treatment if he ever became depressed again. He said “I would never get that low again”.
Mr Murphy presented unchanged from the earlier interview. He was brought from his work for the interview. His movements were brisk. His voice was monotonous but normal in rate and flow. His underlying mood did not seem to be depressed. There is no evidence of psychotic illness, in particular, there was no evidence of any delusional beliefs regarding his wife or the victim. His cognitive performance was normal. He showed an appropriate level of insight regarding the nature of his psychiatric disorder.
Mr Murphy has largely recovered from a severe major depressive illness as a result of treatment with antidepressant medication and regular counselling.
He is at risk of suffering another episode of depression later in life, and would be advised to continue treatment with antidepressant medication under the supervision of a psychiatrist for at least a year. I believe he would recognise symptoms of depression if they were to recur and would seek treatment.

There was no history of antisocial conduct or significant substance abuse, and I believe he carries a low risk of further offences of any kind.

19 Also tendered in evidence was a testimonial from the offender’s friend, Mr Wissman, who wrote fulsomely about his personal qualities. He emphasised the extent to which the offender was devastated by his marriage break-up and the fact that he found the reasons for it incomprehensible. He also referred to the offender’s depression and to the fact that “at one stage he was sleeping on trains at night. He did not want walls around him or to be alone”. The offender told Mr Wissman that “he feels sick in the stomach every time he thinks about [the incident]. It’s something he has to live with for the rest of his life”.

20 In addition to the issue of substantial impairment, Ms Lyons, who appeared for the offender, submitted that this was also a case in which there were elements of provocation even if, as she said “it fell short of a finding of legal provocation”. The Crown did not disagree with her characterisation of the case. She submitted that although there was considerable overlap between provocation and substantial impairment, the combination of the two was such that a lesser sentence ought to be imposed than might otherwise be the case. The evidence clearly reveals that the offender lost control of his actions when he discovered his wife in bed with the deceased. It is also apparent that the offender’s loss of self-control was short lived. I am also prepared to accept that his actions, at least from the time he reached the bedroom, were entirely spontaneous. However the offender’s actions have to be seen in the light of the fact that he took the knife, with which he inflicted the fatal wounds, to the scene. His purpose in doing so was, he said, to enable him to damage the deceased’s car. He also contemplated the possibility that he may have been disturbed by the deceased in which case, he said, the knife may then have been used to scare him off. The offender’s loss of self-control must of course be viewed in the context of his significantly reduced capacity to exercise control by reason of his mental condition. In the circumstances it is my view that Ms Lyons’ submissions on this aspect of the matter have substance and ought to be accepted.

21 It is necessary to have regard to the general principles which are applicable to the present sentencing task. In R v Hill (1981) 3 A Crim R 397, Street CJ said:

It has been said that manslaughter, perhaps beyond any other crime, is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attendant by the utmost caution. It can be seen to be constantly written in the decisions of reports and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.
In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life. (at 402)

22 In R v Blacklidge (NSWCCA, 12 December 1995, unreported) Gleeson CJ observed that:

It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.
At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)
When the basis of a finding of manslaughter is diminished responsibility, pursuant to s23A of the Crimes Act, what is nevertheless ordinarily involved, and what is involved in the present case, is a conclusion that the taking of human life was the consequence of a deliberate and willed act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The abnormality of mind substantially impairs the offender’s mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self control which results from the abnormality of mind diminishes the responsibility, but it does not excuse the act. (R v Low (1991) 57 A Crim R 8.)
Making a judgment as to the extent to which, in a given case, responsibility is diminished, can be a difficult task. The hypothesis, however, is that the offender is responsible for a deliberate act which took the life of another person, and which, but for the abnormality of mind, would bear the character of murder. (at 5-6)

23 The Crown submits that “in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor often to be given very little weight. Such an offender is not an appropriate medium for making an example of others: Regina –v- Scognamiglio (1991) 56 A Crim R 81 @ 86. See also Regina –v- Letteri (Unrep) CCA. NSW. 18/3/92.” Nevertheless considerations of general deterrence are not thereby rendered completely irrelevant. See R v Wright (1997) 93 A Crim R 48; R v Engert (1996) 84 A Crim R 67. However in the circumstances of the present case I am prepared to proceed upon the basis that considerations of deterrence and retribution have a much reduced significance.

24 It is necessary to have regard to an issue which sometimes assumes importance in cases such as this – namely the prospect of future dangerousness which an offender poses to the community and from which it must be protected. As the Crown pointed out in its submissions it is clear that a sentence should not be increased beyond what is proportional to the crime in order to merely extend the period of protection of society from the risk of recidivism on the part of the offender: Veen (No1) (1979) 143 CLR 458. A sentence should be proportionate to the gravity of the offence unless the person’s history warrants some departure from that principle. Nevertheless it is legitimate to take account of a person’s previous history when it shows a dangerous propensity: Veen (No2) (1987-88) 164 CLR 465.

25 In the present case however the Crown relies on the observation of Dr Nielssen who states in his report that:

“His long-term risk to the community is low as he does not have a history of antisocial conduct, substance abuse, or symptoms of a psychiatric disorder that would usually place others at risk. The combination of circumstances that resulted in this offence are unlikely to recur”. (at p7)

26 The offender did not give evidence but he provided relevant information to both Dr Nielssen and Dr Westmore about his family background and related matters. Some material also emerged from the report of Dr Darcy to which I have already referred. He was born in Sydney and grew up there. He is now aged 44. His mother who died in 1973, at the age of 49, was frequently hospitalised because of psychiatric problems. His father, with whom he last had contact in 1974, was an alcoholic. So too was his only sibling, a much older brother, who died several years ago from the complications of an alcohol abuse disorder. Because of his parents’ circumstances, his maternal aunt played a significant role in his upbringing.

27 He was educated to fourth form at Cleveland Street High School and has been in almost continuous employment since he left school. He has worked variously as a bootmaker, a machine operator and for 10 years, until a few months prior to his arrest, at the job in Caringbah.

28 There are a number of matters which are in the offender’s favour and which I take into account. They include the fact that he has no prior criminal history, his plea of guilty and expressions of remorse, his good prospects of rehabilitation and his overall medical condition.

29 Section 22 of the Crimes (Sentencing Procedure) Act 1999 requires the Court to take into account the fact that the offender pleaded guilty and when he or she did so. The Crown concedes that the plea was entered at the first opportunity available to the offender. See R v Thomson & Houlton [2000] 49 NSWLR 383. The plea in this case had significant utilitarian value not only because of its timeliness but also because it obviated the necessity for the resources of the State to be devoted to a lengthy investigation and prosecution. It also meant that prospective witnesses and in particular, Ms Deering, were spared the ordeal of having to give evidence. Moreover in this case it is common ground that the offender has expressed genuine contrition for his offence. When first arrested the offender for example, told the police in the record of interview that “I do feel bad, I don’t feel good about it, I feel shocked, I feel terrible, I, I you know, his family and Dian and the kids and it affects, its not just him, its family, friends, there’s everyone….I’ve ruined people’s lives…….it wouldn’t matter if I said it a thousand, sorry a million times it’s not going to make any difference but what else can I say?” (Q.13).

30 The Crown Prosecutor very fairly and in my view correctly accepted that the appropriate discount for the plea was, at the top end of any scale which may operate in respect of such a matter. He indicated that a discount in the order of 25% was called for in the present case for the utilitarian aspect of the plea. Indeed he went further and suggested that an additional discount for contrition should also be taken into account. In all the circumstances I am of the view that a discount of 25% for the plea of guilty is appropriate.

31 It is also common ground that this is a case in which I should find “special circumstances” within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 particularly since both Doctor Westmore and Doctor Nielssen are of the opinion that the offender requires on-going counselling and long-term treatment with anti-depressant medication. It is to be recalled that at the time of the offence, the offender had not been taking his medication. It is obviously important that he continue to do so and that he have appropriate support upon his release to ensure that he does. It is also to be noted that this is his first experience of gaol. In the result the sentence which I shall impose will entail a substantial period on parole under supervision.

32 As the authorities make plain, it is not easy to discern an appropriate range of sentence for this type of offence. In that respect I have received assistance from Ms Lyons who provided the Court with a schedule of sentences imposed in cases involving substantial impairment. The Crown pointed to particular cases from the schedule which, it was submitted, were likely to be of assistance in determining the appropriate sentence in the present case. In coming to an assessment of the appropriate range the Crown had quite properly put to one side as being of no present relevance, those cases in which there were aggravating features, such as multiple victims, future dangerousness or a prior record. In his view the cases which were of comparability revealed a range for the head sentence of between about 5 years to 13 years imprisonment. Ms Lyons agreed with that assessment although she submitted that this was a case which fell at or towards the bottom of that range.

33 As the offender has been in custody solely in relation to this offence I propose to direct that the sentence which I impose be taken to have commenced on 27 May 2001.

Order

34 Brian Joseph Murphy I sentence you to 7½ years imprisonment to date from 27 May 2001. I specify a non-parole period of 4 years. The first date upon which you will be eligible for release on parole is 26 May 2005. Such parole should include conditions as to the supervision of any treatment which is found to be required for depression or any other psychiatric condition.

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Last Modified: 03/14/2002