R v Murdoch

[2016] NSWSC 1475

Supreme Court

New South Wales

Medium Neutral Citation:	R v Murdoch [2016] NSWSC 1475
Hearing dates:	14 September 2016
Date of orders:	20 October 2016
Decision date:	20 October 2016
Before:	Mathews AJ
Decision:	Term of imprisonment consisting of a non-parole period of 22 years and 6 months commencing on 14 October 2013 and expiring on 13 April 2036 with an additional term of 7 years and 6 months, commencing on 14 April 2036 and expiring on 13 October 2043, making a total sentence of 30 years. The earliest date on which you will be eligible for release on parole is 13 April 2036.
Catchwords:	CRIMINAL LAW – Murder – above the midline of objective seriousness – Aggravated armed robbery - slightly below the midline of objective seriousness – whether aggravating and mitigating factors referred to in ss 21A(2) and (3) of the Crimes (Sentencing Procedure) Act – aggregate sentence pursuant to s 53A (2) – High Risk Offender
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2) and (3), 53A (2)
Cases Cited:	Muldrock v R [2011] HCA 25
Category:	Sentence
Parties:	Regina Lance Lachlan Murdoch
Representation:	Counsel: Mr J Crespo (Crown) Mr W Brewer (Offender)   Solicitors: Solicitor for the Director of Public Prosecutions Legal Aid NSW
File Number(s):	2013/309236
Publication restriction:	No

Judgment

Introduction

1. MATHEWS AJ: On 8 October 2015 Lance Murdoch and Jame Phan were indicted on two charges: first that on 12 October 2013 they murdered Kamran Yousaf; second, that on the same date they robbed Dianne Torro of a sum of cash while armed with a dangerous weapon, namely a pistol. Mr Murdoch pleaded not guilty to both charges. Mr Phan pleaded not guilty to the charge of murder, and guilty to the charge of armed robbery. A jury was duly empanelled, and a trial proceeded in relation to the charges to which each accused had pleaded not guilty. On 29 October the jury returned a verdict of guilty in relation to all charges.

2. The sentencing proceedings in relation to the two offenders have been dealt with separately, with the consent of all concerned. This was appropriate as there was a major disparity between the objective culpability of each of them in relation to the major charge of murder. Accordingly, Mr Phan has already been sentenced for both offences, in addition to several other offences of armed robbery to which he had pleaded guilty.

Circumstances of the Offences

3. The two offences for which Mr Murdoch is to be sentenced arise out of the same incident, which took place at the Villawood Fruit Market on the afternoon of Saturday 12 October 2013. The deceased, Mr Yousaf, was an employee at the store. At about 3.30 that afternoon two men arrived at the store, entering through the rear lane. They had surgical masks covering the lower part of their faces and were wearing hooded tops, with the hoods covering their heads, so that most of their faces were concealed. They were also wearing high visibility yellow vests, of the type that workmen often wear. One of them was wielding a hammer, and the other a small silver pistol. Two employees of the market were having lunch in the back lane, outside the rear entrance to the shop, when these two men approached them and demanded to be taken inside and to the till.

4. The following account is a very brief encapsulation of a great deal of detailed evidence which was given at the trial by a number of witnesses, who were store employees, people who worked nearby, and members of the public who happened to be in or near the store at the time. As is often the case in relation to events which happen quickly and unexpectedly, there were a number of differences in the details of their descriptions. However there was general agreement as to the overall course of events after the two men came into the store. One thing we now know with absolute certainty is that the man with the hammer was Jame Phan; and the gunman, as the jury’s verdict confirms, was the offender Lance Murdoch.

5. Having entered the store through the rear entrance, the two men demanded to be taken to the till. Once there, Mr Murdoch demanded that one of the employees give him the till. She refused to do so. Very shortly afterwards Mr Phan jumped into the other register area and reefed out one of the tills. He was running towards the rear of the store, holding both the till and the hammer, when Mr Yousaf grabbed him from behind. At one stage during the confrontation which followed, Mr Phan struck Mr Yousaf with the hammer, causing a laceration to the left side of his head. Unfortunately for Mr Yousaf, that was the least of the injuries he sustained during this episode. They were already in the rear lane outside the shop, and Mr Yousaf was holding Mr Phan from behind, with his arms around his waist, when Mr Murdoch, who had run on ahead, returned and fired a shot at him. At that time Mr Phan was leaning forwards and down, so that the upper part of Mr Yousaf’s body was exposed from the front. As the post mortem report later showed, the bullet entered his right, mid abdomen and caused extensive internal injuries. It was estimated to have been fired at very close range, namely from a distance of between 10 centimetres and a metre.

6. In spite of the seriousness of this injury, Mr Yousaf remained upright for some little time after this, and maintained his grip on Mr Phan. He was assisted in this by a customer who had been in the store, and also by one of the other workers. Mr Yousaf was trying to get Mr Phan back inside the shop when Mr Murdoch, who had run down the lane away from the shop, returned and shot at him again. On this occasion the bullet entered Mr Yousaf’s lower back, passed through soft tissue, and lodged within the bone of the mid sacrum. These two wounds, which caused extensive internal bleeding, constituted the immediate cause of Mr Yousaf’s death.

7. Mr Phan had been forced back inside the store, and the rear shutter door had been closed, when Mr Yousaf collapsed. All subsequent attempts to revive him were unsuccessful. By that time Mr Phan had been tied up and was lying on the ground. The police arrived shortly afterwards and Mr Phan was arrested and taken into custody. He declined to enter into an interview with the police.

8. As to Mr Murdoch, after shooting Mr Yousaf the second time, he ran down the rear lane, but returned shortly afterwards and fired a third shot, which did not strike anyone. He then ran across Woodville Road and through some Housing Commission apartments and an adjacent car park, eventually arriving at a lane which ran through a wooded area. There he was seen by a bystander to drop both his yellow vest and his face mask. These were later found to contain Mr Murdoch’s DNA.

9. Mr Murdoch was arrested by police at his home two days later, on 14 October 2013, and taken into custody. An interview took place shortly afterwards in which he admitted that he knew Mr Phan, and that the two of them had been together at a casino in the early hours of the morning of 12 October. However he denied any knowledge of the robbery or murder at the fruit market, saying that he was at home asleep throughout that day.

10. The issues raised at the trial were quite different in relation to each of the two accused. The sole issue in relation to Mr Murdoch was that of identification. He maintained his denial that he had been in any way involved in the robbery or the murder, and his assertion that he had been asleep at home all day. However there was abundant evidence to support his identification as the man wielding the pistol, including the DNA evidence I have mentioned. Once the jury was satisfied of that matter to the requisite degree, there was no realistic issue as to his guilt of both charges, given the totality of the evidence as to his actions that afternoon.

11. Identification, of course, was not an issue at all in relation to Mr Phan, who was apprehended at the scene. Hence his plea of guilty to the charge of armed robbery. His defence to the murder charge was, effectively, that the Crown could not prove that he knew that Mr Murdoch would fire the gun. Therefore he could not bear accessorial liability for the killing of Mr Yousaf. The Crown relied on constructive murder in his case, and it became clear from a series of jury questions that his conviction was based on the proposition that he foresaw the possibility of the gun being discharged, but not that someone would be killed or injured.

12. As I said when sentencing Mr Phan, this was a highly significant matter on sentence, as it very substantially reduced his culpability for the murder of Mr Yousaf. It meant that the objective criminality in his case was of a very low order indeed for the offence of murder.

Objective Criminality of the Offender

13. The situation in relation to Mr Murdoch was entirely different. He deliberately fired two shots at Mr Yousaf, the first from very close range, so the conclusion is inescapable that he must have intended at the very least to inflict very serious injury. His motive was to enable his co-offender to escape after he had been lawfully captured. There is nothing in the circumstances of the killing to reduce his culpability for the offence of murder. Certainly the offence itself was not premeditated, but the offender was carrying a loaded pistol which he was clearly prepared to use. I accept the Crown’s submission that in all the circumstances the criminality in his case is above the midline of objective seriousness for murder. Indeed Mr Brewer, who appeared for Mr Murdoch, did not seek to argue to the contrary.

14. The murder of Mr Yousaf is, of course, by far the more serious offence of the two for which the offender is to be sentenced. However the robbery offence must also be dealt with. It was a premeditated offence, as these offences tend to be. Ultimately no money was taken. I would place this offence slightly below the midline of objective seriousness for aggravated armed robbery.

15. I should say that in making these assessments I have taken into account the aggravating and mitigating factors referred to in ss 21A(2) and (3) of the Crimes (Sentencing Procedure) Act, 1999 (“the Act”). I will be referring to them in more detail a little later. In the meantime, I turn to say something about the offender’s personal background.

The Offender’s Background

16. Mr Murdoch is now 30 years old, having been born in Campbelltown on 31 January 1986. He is the older of two boys. It is apparent that he had an extremely difficult childhood, including being exposed to drug use within the home. His parents separated when he was very young. Afterwards he lived with his mother. When he was in primary school he reconnected with his father, but his father committed suicide by taking a heroin overdose soon afterwards. Mr Murdoch found school extremely difficult, as he was unable to read or write. He remains essentially illiterate to this day. He was frequently in trouble at school for fighting, truanting, drug use and smoking, and was expelled in Year 8. He started to use cannabis at the age of 12, and by the time he was 14 he was smoking cannabis on a daily basis.

17. It was also at the age of 14 that the offender had the first of his many brushes with the law. Whilst still a minor, he came before the Children’s Court on at least seven occasions, according to my calculations, in relation to 25 different offences. In April 2003, when he was still only 17 years old, he committed a number of serious offences, including a kidnapping offence and armed robbery, for which he was ultimately sentenced by the Court of Criminal Appeal to imprisonment for 6 years and 8 months, with a non-parole period of 5 years. This was subsequently extended by one month following his conviction for two offences of attempt to escape from lawful custody. In the 16 years since his first incarceration at the age of 14 years, the offender has been in the community for a maximum of 5 years, and has a minimal employment history. On all accounts he has become institutionalised, a condition which is unfortunately unlikely to be ameliorated during the lengthy term of imprisonment that he will necessarily have to serve as a result of the present offences, together with several sentences yet to be imposed on him. These relate, first, to three armed robbery offences which took place at various locations in the western suburbs of Sydney within the week before these offences. Each was committed in company with Mr Phan, and each bore a startling resemblance to the Villawood Fruit Market robbery. Mr Phan pleaded guilty to each of these, and was sentenced at the same time as he was sentenced in relation to his participation in these offences. However, Mr Murdoch pleaded not guilty. Following a jury trial in the District Court, I am told that he was convicted in relation to all charges, and is yet to be sentenced. In addition, he faces sentence in the District Court for a firearms offence committed while he was in custody in relation to the current offences.

18. Mr Murdoch has been involved in a number of motor bike accidents over the years. The most serious of these took place only nine weeks before these offences. As a result of that accident Mr Murdoch suffered severe head injuries, including multiple basal skull fractures and loss of vision in his right eye. He was admitted to hospital after the accident, but then discharged himself against medical advice. He reported a decline in his memory since this accident, as well as increased irritability and frequent headaches. He was examined by the forensic psychiatrist, Dr Richard Furst in January this year, and the doctor’s report, dated 22 February 2016, was tendered into evidence. Dr Furst considered that Mr Murdoch suffered from the following three mental disorders:

• Acquired brain disorder.

• Substance abuse disorder (opiates and amphetamines dependence).

• Personality disorder (antisocial traits).

19. Mr Murdoch’s drug dependence has been a constant issue in his adult life. Indeed it is almost certain that he committed the robbery on this occasion in order to obtain money to feed his drug addiction. He has expressed a desire to remain drug free on his release. However he has tested positive to drugs on three occasions since his incarceration for these offences, albeit that the last occasion was over 12 months ago now. Dr Furst recommended treatment options whilst Mr Murdoch is in custody in order to deal with this issue.

20. Dr Furst’s prognosis was anything but positive. In the last two paragraphs of his report, he said as follows:

The nature of his institutionalisation, personality structure, chronic substance dependence, childhood adversity and the serious nature of his index robbery/murder offences and multiple other and previous robbery offences are all negative prognostic factors, meaning Mr Murdoch poses an ongoing risk to the community upon his release from custody, especially if the (sic) relapses into using drugs.

However, the treatment options outlined above offer some hope that his risk of reoffending and pattern of institutionalisation can be ameliorated to some degree.

Aggravating and Mitigating Factors

21. The following are the aggravating factors pursuant to s 21A(2) of the Act which are not inherent in the offences of murder or armed robbery:

22. First, pursuant to paragraph (d), the offender has a record of previous convictions. I have already mentioned the numerous convictions recorded against Mr Murdoch over the years, involving a variety of offences, most of them being offences of dishonesty. This is clearly a very significant factor in the present circumstances.

23. Next, pursuant to paragraph (ea), the robbery offence was committed in the presence of a child under 18. An 11-year old girl was in the shop near the checkouts when Mr Murdoch and Mr Phan approached with the pistol and the hammer. She gave evidence at the trial. This was obviously a traumatic event for the child in question, but I do not consider this aggravating factor to be as serious as the others.

24. Further, pursuant to paragraph (e), the robbery offence was committed in company. This is clearly a significant matter. Indeed without it, there would have been no murder for the motive for the murder was to enable the co-offender to escape after he had been lawfully captured.

25. Finally, pursuant to paragraph (n), the robbery offence was part of a planned or organised criminal activity. This was clearly thought out in advance, with both offenders effectively disguising themselves in order to avoid detection.

26. There are no mitigating factors pursuant to s 21A(3) in the present case. Mr Murdoch has clearly shown no remorse for his actions. Indeed, as already indicated, he has continued to deny that he was involved in these offences, in spite of overwhelming evidence to the contrary.

27. I now turn to discuss the appropriate sentence in this case.

The Appropriate Sentence

28. The offender comes to be sentenced for two major offences. By far the most serious, of course, is the murder of Mr Yousaf, which involved the deliberate taking of an innocent human life.

29. The maximum penalty for murder is life imprisonment, with a standard non-parole period of 20 years. Since the High Court judgment in Muldrock v R [2011] HCA 25, it has been accepted that the standard non-parole period constitutes a guide post rather than a starting point, as had previously been considered.

30. The maximum penalty for aggravated armed robbery is imprisonment for 25 years. There is no standard non-parole period.

31. In determining the appropriate sentences it is necessary to take account of the purposes of sentence, as set out in s 3A of the Act. As relevant here, they are:

• to punish the offender;

• to deter the offender and others from committing similar offences;

• to protect the community from the offender;

• to promote the rehabilitation of the offender;

• to denounce the offender, and to recognise the harm done to the victim of the crime and the community.

32. In Mr Murdoch’s case, the evidence indicates that rehabilitation is not a likely outcome. However, given the seriousness of these offences, together with the other offences for which he still faces sentence, he will be at least into advanced middle age by the time he is released from custody, and it is entirely possible that by then he will be a somewhat different person.

33. The two offences arise out of the same incident, which is a relevant matter on sentence. In the circumstances, I propose to impose an aggregate sentence in relation to both of them, pursuant to s 53A of the Act. This enables me to impose what I believe to be the appropriate overall sentence and non-parole period, taking into account the total criminality involved in both offences.

34. Mr Brewer submitted that special circumstances exist which justify a departure between the statutory ratio between the head sentence and the non-parole period. However the overall sentence which the offender will be serving is such that there will in any event be a lengthy parole period which will be more than adequate to deal with the issues described by Mr Brewer.

35. The offender has been in custody in relation to these offences since 14 October 2013, and his sentence will commence on that date.

36. Pursuant to s 53A (2) of the Act, I indicate that for the offence of murder alone, I would have imposed a prison sentence consisting of a non-parole period of 21 years with an additional term of 7 years, making a total term of 28 years. The reasons for setting a non-parole period which exceeds the standard non-parole period have already been given. They are, primarily, the objective seriousness of this offence, the absence of any significant mitigating factors, and the offender’s criminal history together with his negative prospects of rehabilitation. For the aggravated armed robbery, I would have imposed a head sentence of 8 years.

37. I am obliged to warn Mr Murdoch, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006, and the fact that that Act applies to the offence of which he has been convicted, and for which he is about to be sentenced. At some future point of time, an application may be made that, notwithstanding the completion of his sentence, he nevertheless ought to be detained in ongoing custody or else ought to be the subject of an extended supervision order, impacting on his liberty.

32. Lance Murdoch, I sentence you to an aggregate term of imprisonment consisting of a non-parole period of 22 years and 6 months commencing on 14 October 2013 and expiring on 13 April 2036 with an additional term of 7 years and 6 months, commencing on 14 April 2036 and expiring on 13 October 2043, making a total sentence of 30 years. The earliest date on which you will be eligible for release on parole is 13 April 2036.

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Decision last updated: 20 October 2016