R v Murphy - [2024] SASC 5

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v MURPHY
[2024] SASC 5
Judgment of the Honourable Justice McIntyre
16 January 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - ATTEMPTED MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC
Where the Court previously recorded a finding that the defendant was not guilty of one count of attempted murder by reason of mental incompetence. A declaration was made that the defendant be liable for supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (the “CLCA”).
Held:
1. Defendant committed to detention pursuant to s 269O(1)(b)(i) of the CLCA.
2. Limiting term of 10 years, seven months, and 15 days fixed pursuant to s 269O(2) of the CLCA.
Criminal Law Consolidation Act 1935 (SA) ss 11, 269F, 269K 269O, 269Q, 269R, 269T, 270A, referred to.

R v MURPHY
[2024] SASC 5
Criminal: Application

McINTYRE J: The defendant, Scott James Murphy, was charged on information in this Court with one count of attempted murder, contrary to ss 11 and 270A of the Criminal Law Consolidation Act 1935 (‘the CLCA’). The defendant has been declared liable to supervision in respect of the offence of attempted murder under Part 8A of the CLCA. There has been no application for the defendant to be released into the community, but it is necessary to set a limiting term. For the reasons that follow, I have determined that a limiting term of 10 years, seven months and 15 days commencing today is appropriate under s 269O of the CLCA.
Background
An investigation into the defendant’s mental competence to commit the offence took place on 1 June 2023. I found, on the balance of probabilities, that the defendant was suffering from a mental impairment, schizophrenia with associated psychotic illness, at the time of the offending and as a consequence of that impairment did not know that the conduct was wrong. Accordingly, the defendant was at the time of the offence mentally incompetent to commit the offence. I was satisfied that the objective elements of the offence had been proved beyond reasonable doubt. I recorded that finding under s 269F of the CLCA. I further recorded a finding that the defendant was not guilty of the offence by reason of his mental incompetence at the time but that he was liable to supervision under Division 4 of the CLCA. I ordered reports under ss 269Q, 269R and 269T of the CLCA.
The following reports were subsequently provided:
·Dr Annan Lloyd, Senior Medical Practitioner, and Dr Cassie Smith, Consultant Forensic Psychiatrist combined report (under ss 269F and 269K) dated 22 February 2023;
·Dr Jessica Lowe, Forensic Psychiatrist combined report (under ss 269Q and 269T) dated 11 October 2023; and
·Ms Anna D’Alessandro, Forensic Court Services, (under s 269R) dated 24 November 2023.
The statutory scheme
Section 269O of the CLCA provides that a court in these circumstances may release the defendant unconditionally, make a supervision order committing the defendant to detention or release the defendant on a licence with conditions decided by the court and specified in the licence.
Section 269O(2) requires that if a court makes a supervision order it must fix a limiting term equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would have been appropriate if the defendant had been convicted of the relevant offence.
The court must have regard to all matters that would usually be relevant to the fixing of a sentence except matters that are based upon, or which arose out of the defendant’s mental impairment. The limiting term must be fixed by reference to the head sentence of imprisonment that would have been appropriate and not the non-parole period. Furthermore, the court is obliged to have regard to the matters specified in s 269T(1) of the CLCA.
The defendant’s personal circumstances and mental condition
The defendant is 58 year old single man. Prior to his offending and subsequent imprisonment, he was living alone in a Housing SA property in Whyalla. He was unemployed and receiving the Centrelink JobSeeker allowance. He was previously trained as a fitter and turner and last worked in this role in early 2022.
The defendant was raised by Jim and June, who he does not believe are his real parents although it appears from the medical reports that this belief might be a product of his illness. He has no contact with them by choice. He was the oldest of three siblings. He has no contact with them but would like to. He has four adult children with whom he has limited contact.
He was very attached to his dogs. Some of his persecutory beliefs centred upon them. He experienced the loss of two dogs.
The defendant’s uncle was supportive of him and was the only person who visit him when he was in hospital. Sadly, he died recently.
The defendant is in good physical health and does not use illicit drugs.
The defendant has a long standing history of schizophrenia with associated psychotic illness which is considered to be treatment resistant. This history is well documented in the various reports obtained in this matter.
Drs Lloyd and Smith noted in their report dated 22 February 2023, that the defendant had a 25 year history of schizophrenia for which he had limited treatment. At the time of their report, he was continuing to present with psychotic symptoms of thought disorder, delusions and hallucinations despite trials of different anti-psychotic medication. Drs Lloyd and Smith considered that, at the time of the offence, the defendant was suffering from a mental impairment, given his long history of schizophrenia and the behaviours he displayed at the time of the offence.
Dr Lowe confirmed the matters set out in the report of Drs Lloyd and Smith noting that the defendant has a long history of largely untreated psychosis arising from his diagnosis of schizophrenia. Dr Lowe also noted that the defendant suffered an acquired brain injury whilst living interstate in 2005. Recent brain imaging reveals bilateral brain changes indicative of previous traumatic injury.
Dr Lowe noted the circumstances of the offending and that when arrested shortly after the incident the defendant was voicing paranoid and persecutory ideas about paedophiles, “The Family” and government conspiracies. The defendant was highly agitated and distressed. He was taken to the Whyalla Hospital and subsequently transferred to the Royal Adelaide Hospital where he was diagnosed with a florid psychotic relapse of schizophrenia. He was then transferred to James Nash House for ongoing assessment and treatment.
The defendant has been in detention at James Nash House since September 2022 where he has received assessments and treatments for his mental illness. Despite receiving assertive impatient psychiatric care, Dr Lowe notes that the defendant continues to hold his delusional beliefs with conviction and continues to rationalise and justify his offence. Given that minimal progress, Dr Lowe believes that the defendant has a poor prognosis. He continues to display overt persecutory delusional beliefs, experience auditory hallucinations, and thought interference. He demonstrates little to no insight into his underlying diagnosis and presents an ongoing risk of violent offending. Dr Lowe considers that the defendant requires ongoing detention at James Nash House and is not suitable to reside in the community. This will enable assertive psychiatric care and containment of the defendant’s risk in a secure setting.
In those circumstances there has been no application for the defendant to be released into the community. All that remains is to set a limiting term.
The limiting term
It is necessary to fix a limiting term under s 269O by reference to the head sentence that would have been appropriate if the defendant had been convicted of the offence for which the objective elements have been established. The maximum penalty for this offence is imprisonment for life.
The circumstances of the offending are that on 31 August 2022 the defendant attempted to kill the victim at his place of work at Workskill Australia in Whyalla. CCTV footage of the incident shows the defendant entering the foyer of the Workskill building carrying a briefcase. After placing the briefcase on a chair, the defendant removed a number of cable ties that had been pre joined in a loop. The victim was also standing in the foyer of the building assisting a customer.
The defendant approached the victim from behind and placed the looped cable ties over the victim’s head and around his neck. He attempted to pull the cables tight, but the victim was able to place his fingers between the cable tie and his neck. During the physical altercation that ensued, the victim was ultimately able to remove the cable ties from his neck. The defendant then produced a folding knife from his pocket and waved it around, threatening to stab and kill the victim. Throughout this, the defendant was calling his victim a paedophile, and claiming that he was corrupt and manipulating the system.
The customer fled the scene through the front door whilst other employees came to the assistance of the victim. They were able to open a security door which the victim ran through to escape the defendant. The defendant was still apparently able to see the victim through the glass on the security door as well as through the security panel above the counter. He continued to wave the knife and to make threats to stab and kill the victim.
The defendant left Workskill before the police arrived. His car number plate was identified by a witness and subsequently communicated to the police. Police located the defendant at his house. Bodycam footage shows that he was highly agitated and distressed, yelling paranoid and persecutory ideas about paedophiles, “The Family” and government conspiracies. He was holding books of written materials he claimed was “evidence” backing up his beliefs. Police eventually convinced the defendant to calmly exit his home.
Following this, the defendant was transferred from the Whyalla Hospital to the Royal Adelaide Hospital where he was admitted. He was placed on an involuntary Inpatient Treatment Order and recommenced on injectable antipsychotic medication. The defendant was then transferred to James Nash House on 15 September 2022 for ongoing assessment and treatment of his schizophrenia. He has resided there since.
This is a serious example of this type of offending. The defendant planned and carried out a violent attack on the victim. He was equipped with cable ties and a knife. He had a rudimentary disguise. The victim was at his workplace. He was completely blameless. He was dealing with a client; he had his back to the defendant. The attack was unprovoked and unheralded and to that extent the victim was extremely vulnerable.
The defendant persisted with his attack despite the fact that the victim was able to remove the cable ties after a brief struggle. The defendant then produced a knife and threatened the victim with that knife. The victim was only able to escape by reason of his colleagues opening a locked door. The defendant continued to shout threats. The victim impact statement makes it clear that, whilst the victim did not suffer any serious physical injuries, the offending has had a significant ongoing adverse impact upon him. His employers have been extremely supportive but nonetheless the victim unsurprisingly continues to experience emotional difficulties and feels that this adversely affects his wellbeing at work. In particular, he feels that he is now not known for his work but rather is notorious as the man involved in this incident. In addition, no doubt the incident was terrifying for the client that the victim was dealing with and the victim’s co-workers. People are entitled to attend public places and their workplace without experiencing the type of violence that the defendant perpetrated on that day.
I have had regard to the matters set out in s 11 of the Sentencing Act excepting those impacted by the defendant’s mental impairment. I note that the defendant has some criminal history including for offences of violence. Personal deterrence is therefore of some relevance despite his mental impairment. Likewise general deterrence has a role to play but has less relevance that it otherwise would, due to the defendant’s mental impairment. By reason of his mental condition considerations of contrition and remorse have no relevance. The defendant is not entitled to any discount for admitting the objective elements of the offence. The defendant is entitled to credit for his time in custody since 31 August 2022, a total of one years, four months and 16 days.
In all of the circumstances I consider that an appropriate starting point for the limiting term is 12 years. I reduce that to 10 years, seven months and 15 days to reflect the time spent in custody. I therefore fix a limiting term of 10 years, seven months and 15 days to commence today.