R v Murphy

[2024] NSWDC 635

District Court

New South Wales

Medium Neutral Citation:

R v Murphy [2024] NSWDC 635

Hearing dates:

18 December 2024

Decision date:

18 December 2024

Jurisdiction:

Criminal

Before:

Anderson SC DCJ

Decision:

Sentence of five years imprisonment with a non parole period of three years.

see at [92]

Catchwords:

CRIME – Sentence after trial – historical sexual assault – brazen attack on stranger – DNA evidence – in a public place – intoxicated victim – childhood depravation – special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

DH v R [2022] NSWCCA 200

Ragg v R [2022] NSWCCA 150

R v RE [2023] NSWCCA 184

Category:

Sentence

Parties:

Rex (Crown)
Shannon Adrian Murphy (Offender)

Representation:

Counsel:
Mr I Todd (Crown)
Ms E Scoufis (Offender)

Solicitors:
Ms C Berrigan (Crown)
Mr J Janke (Offender)

File Number(s):

2022/00302845

Publication restriction:

Statutory Non-Publication Order re name of the victim

JUDGMENT

1. Mr Shannon Murphy comes before the Court having been found guilty by me on 6 September 2024 of one offence of sexual intercourse without consent, an offence again s 61I of the Crimes Act 1900 (NSW), which carries a maximum penalty of 14 years in custody and a standard non-parole period of seven years.

2. These maximum sentences demonstrate the seriousness with which the Parliament takes this type of offending.

3. As the offender pleaded not guilty he is not entitled to a discount for the entry of a guilty plea. He has continued to show no remorse for his conduct and continues to maintain he is not guilty.

FACTS ON SENTENCING

4. For the purposes of proceeding to sentence and consistent with my verdict of guilty, I find the following facts beyond a reasonable doubt.

5. Sometime between 3.41am and 3.57am on 3 May 2012 the victim was sexually assaulted in Civic Park Newcastle by the offender. The victim was 20 years of age at the time and a university student. She had been out with friends arriving at Fanny’s Nightclub at 12.07am where the offender had been working that night.

6. She spoke to her then boyfriend, now husband MS at about 2.30am while she was at Fanny’s and quite intoxicated. There was no evidence before the Court of the precise blood alcohol reading that the victim had at or about the time she left Fanny’s or at the time of the assault.

7. CCTV footage demonstrated that she left Fanny’s at 3.05am and the offender left at 3.06am. The victim has no memory between leaving Fanny’s and waking up in Civic Park. Although the victim does not remember leaving Fanny’s I accept the evidence of MS that at 3.41am the victim called him and told him that she was in the park.

8. Although MS recalls being told that the victim was with friends, I do not accept that aspect of his evidence and I find instead that she was alone. That conclusion is based on the uncontested evidence of the two friends who the victim thought she may have been with in the park, but who gave evidence during the trial, denying being with her at that time in the park.

9. The CCTV footage taken at Fanny’s also demonstrates that the victim leaves the venue alone. The victim remembers waking up in Civic Park between the fountain and a garden, near some flowers and was unconscious when the assault began. When the victim awoke she was lying on the ground, facing up, with the offender on top of her. He was pushing down on her chest and shoulders and she felt pressure to her neck. The victim woke up because of a burning sensation that she felt to her lip. The offender pulled a tampon out of her vagina which caused her some pain. That tampon was found near where the incident took place.

10. The offender had penile/vaginal intercourse with the victim for up to a couple of minutes, after which time the victim found her voice and screamed, causing the offender to run. Police attended at the scene and took the victim to John Hunter Hospital where she underwent a SAIK examination. A DNA swab was taken from her neck.

11. The victim suffered pain to her lip and neck which ultimately developed into some bruising. There was some limited bruising to her back, she had a painful vagina because of the assault and she had grazes down her back and legs. Those injuries are part of the narrative and I do not find that they aggravate the offending.

12. The victim called her boyfriend, now husband, MS, and told him “someone rapped me”. The assault went unprosecuted for over a decade because the victim could not identify her assailant. Eventually a DNA match was found between the DNA swab taken from the victim shortly after the assault and a second offence which occurred in 2022 which also involved the offender and led to him giving a DNA sample to police. It was that DNA which led to the ultimate prosecution occurring in this case from the event in 2012.

OBJECTIVE SERIOUSNESS

13. An essential part of a sentencing process is the assessment of the objective gravity of each offence for which the offender is to be sentenced. It sets the parameters of the appropriate sentence and ensures the sentence imposed is proportionate to the offence committed.

14. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending itself. I have considered those facts that I have set out in assessing the appropriate sentence for this offender.

15. It is well understood that when sentencing an offender for a charge involving sexual intercourse without consent that all the circumstances of the offence must be considered, not simply the nature of the act itself.

16. There is no hierarchy amongst the different types of sexual intercourse which can occur, however the degree of violence, pain inflicted, the form of forced intercourse, any circumstances of humiliation as well as the duration of the offence are all relevant.

17. General deterrence and denunciation are important considerations. Sexual offences will not be tolerated by the community. The offender in this case did not know the victim. There is no evidence that the offending was planned. The term ‘rank opportunism’ comes to mind, with the offender taking advantage of a young, heavily intoxicated female who was unconscious in a park, who he did not know and while she was alone in the early hours of the morning. She only regained consciousness during the sexual assault itself whilst the offender was holding her down.

18. Given her intoxicated state she could clearly not consent and this must have been obvious to him at the time the assault was occurring. The assault continued until the victim began to scream. Its exact duration is uncertain, perhaps minutes, but a short duration does not usually reduce to objective seriousness of such offending.

19. I have taken the fact that at the commencement of the sexual assault the offender was on top of the victim pushing down her chest and shoulders and that the offender pulled a tampon out as part of my general assessment of the objective seriousness of the offender’s conduct.

20. There was no weapon used and there were no threats made to the victim, a point made on behalf of the offender by his counsel Ms Scoufis. However, the fact that she was unconscious, the absence of threats is not a particularly powerful submission. In my view the victim could not have been more vulnerable nor defenceless at the time.

21. Both parties made submissions about where this offence fell on continuum of objective seriousness. The offender submits his conduct for “around the mid-range of objective seriousness” with the Crown submitting that it may be “the upper end of mid-range”.

22. Such submissions can be helpful because it makes it easier to compare one case to another and as a convenient shorthand summary of the parties position. However, cases such as DH v R [2022] NSWCCA 200 at [31]–[33]; Ragg v R [2022] NSWCCA 150 at [5] and R v RE [2023] NSWCCA 184 at [35] have all stated that there is no requirement for a sentencing judge to utilise this concept of where a case falls on a scale of seriousness even when the offence involved a standard non-parole period and on that basis I decline to do so on this occasion. I have set out the matters I have considered and that is sufficient.

23. The offender has maintained his not guilty plea in this Court and it follows I am unable to find a causal connection between and mental health issues and the conduct which occurred.

24. Childhood deprivation though does loom large in this matter. It is unnecessary for an offender to show a causal connection between childhood deprivation and the commission of an offence. I will deal with that issue in more detail shortly.

25. It is submitted by the Crown that the sexual assault had negative effects on the victim’s well-being and her interpersonal relationships. It was submitted that the harm was substantial because the adverse effects of the offence continued for 12 years after the event occurred and because the victim could not attend university classes and because of the proximity of the location of the effect and her campus. I accept those submissions.

26. However in order to qualify substantial harm within the meaning of s 21A(2g) of the Crimes (Sentencing Procedure) Act 1999, the harm needs to greater than ordinarily attaches to an offence of this kind. The victim impact statement which was read to me and which I will here now refer to in a moment was powerful however I do not find that the case falls into that category where it aggravates the seriousness of the offender’s conduct.

27. In terms of antecedents the offender’s date of birth is 9 August 1988. He is currently 36 years of age and he was 24 at the time of the offending. This offence occurred in 2012 and at that stage there were no other offences of a sexual nature on his record, so he is entitled to leniency for that reason.

28. In terms of the statutory mitigating factors at s 21A(3) the Court must consider whether the offender is unlikely to reoffend and whether he has good prospects of rehabilitation amongst the other matters set out in that section.

29. Mr Murphy is a hardworking person and I infer from the subjective material placed before the Court, a successful businessman with two businesses. This certainly bodes well for his future. However, as McGrath DCJ noted when the offender was sentenced for his 2022 sexual touching offence both that 2022 offence and an offence in 2021 occurred in circumstances where the offender was running his businesses and in a stable relationship with children, so a positive family life and good business does not necessarily seem to assist him in terms of staying on the straight and narrow.

30. It is submitted that since being released on bail in October 2023 he has made considerable steps towards abstaining from alcohol and other drugs and that he now attends regular psychotherapy sessions. I accept that and I accept that that fact does have a positive role in how I should assess his prospects of rehabilitation and reoffending.

31. I note that in a case note written by Corrective Services on 6 April 2021 the author of that note states:

“Further exploration of deviant sexual interests would be a benefit to assist with ongoing management of dynamic risk.”

32. Clearly this is something that the offender needs to consider when he is receiving psychological counselling into the future. I also note there are more recent Justice Health records which refer to the offender as being insightful and recognising that there was a link between his alcohol abuse and his negative social actions which occurred when he has been drinking too much.

33. He has demonstrated insight as well that his alcohol use has set a bad example for his children.

34. However, at this stage I find it as too early to tell whether he has good prospects for rehabilitation. He has abstained from alcohol since October 2023 which is certainly very positive given the negative way it impacted on his life but that is only a relatively short time ago and since September this year until now he has actually been in custody and therefore unable to access alcohol.

35. He has made positive comments to the psychologist and in the Justice Health notes about dealing with alcohol and I find he has reasonable prospects for rehabilitation at this stage, I cannot put it higher than that.

36. Given his conduct in 2021 and 2022 some ten years or so after this offence, I cannot find that he will not reoffend in the future.

VICTIM IMPACT STATEMENT

37. The victim in this matter read a comprehensive victim statement, the statement speaks eloquently of the type of short and long-term emotional harm that the offending has done to the victim. There is no question that the effects of the crimes committed on the victim have had a severe and negative impacts, I will take it into account pursuant to s 3A(g) of the Crimes (Sentencing Procedure) Act.

QUASI CUSTODY

38. I am going to take into account to a degree that the offender did have onerous bail conditions in terms of his curfew being that he was to be at home between 6pm and 6am each day. The balance of the bail requirements which had been placed upon him appear to me to be absolutely standard perhaps with the exception of a requirement of a $10,000 surety.

39. I am not going to nominate a particular range of dates for which this quasi custody is equivalent to, however I am going to take it into account as part of my reasoning for backdating the sentence well beyond the minimum number of days he is entitled to which I note is nearly 99 days.

DELAY

40. It is submitted that the offence occurred 12 years ago and that there has been a significant delay between that time and when the prosecution occurred and that this can be taken into account as a factor in mitigation. Delay can be relevant at a number of levels and it can operate to mitigate an otherwise appropriate sentence even in the absence of evidence that have caused a particular change in the offender’s circumstances.

41. One of the considerations the Court may take into account is the uncertain suspense of the matter hanging over the offender’s head. In circumstances where the offender maintains he has done nothing wrong, it follows he cannot have felt this offence hanging over his head since 2012. There was no evidence that the applicant suffered, for example, the uncertain suspense as a result of the delay. Even if he had felt this, his silence in hoping that he would not be caught for this crime would speak against any mitigation in his sentence.

42. However, there is an aspect of the delay which has been important. Since the commission of this offence the offender has developed an insight into the connection between his negative social activity of alcohol abuse and I accept the submission that since October 2023 he has been taking positive steps to become rehabilitated.

43. It was submitted that had the offender been sentenced to a term of imprisonment 12 years ago when this offence occurred, his experience of custody would have been less onerous because he would not be battling the symptoms of post-traumatic stress disorder or the distress of worrying about the well-being of his children and that this mitigates the sentence to be imposed. I do not accept that submission.

44. With respect to the PTSD issue I find that to be entirely theoretical and I do not place any weight on it. As to the fact that he would not have had children 12 years ago that may well be right but there was no authority cited for the proposition that this should mitigate his sentence and I do not accept that it does.

OTHER DOCUMENTS THAT HAVE BEEN PLACED BEFORE THE COURT

45. I have been provided with three discreet documents, firstly the psychological report from Mr Andrew Wong, Clinical Psychologist. Secondly the affidavit from Ms Ashley Johansen, the offender’s partner, and thirdly Justice Health records. Perhaps not surprisingly in the circumstances of this matter, the offender did not give evidence at the sentence hearing. From this material I distil the following:

Family background

46. The offender reported that he was born in Newcastle and raised in Lake Macquarie. He recalled being raised in a poor household throughout his childhood but his basic needs were met. He reported that his parents abused alcohol and he recalled witnessing his parents arguing and various incidents of domestic violence.

47. He told Mr Wong about an incident where he found his mother unconscious on the floor after hearing his parents arguing and fighting. He told Mr Wong that his parents separated when he was age ten. He reported that as his father’s physical health began to decline from a combination of Parkinson’s disease, arthritis and dementia when he was only aged between ten and 13 that he had to become a carer for his father who was largely incapacitated.

48. The offender reflected having a good relationship with his father but said that witnessing his father’s health deteriorate was traumatic. The offender reported that his father went into a nursing home where his health deteriorated further eventually passing away when the offender was 21 years of age.

49. He reported a poor relationship with his mother while he was living with her when he was younger. He reported being ostracised and verbally abused and being beaten with a belt almost daily when one of his siblings misbehaved.

50. Mr Wong records that at the time of the assessment the offender described an improved relationship with his mother. At the age of 15 the offender reported that due to his mother moving in with a new partner he needed to move out and live with an older sister. He reported that he then lived with a friend for some time before moving in with his twin sister at the age of 17. He told Mr Wong that a drug dealer also lived in that property and that worsened his polysubstance use.

51. The offender reported having multiple romantic and sexual relationships since the age of 12. He said that he met his current partner around 14 years ago and they have three children.

52. He told Mr Wong that he was a selfish alcoholic for the first majority of their relationship and his children’s life. He reported concerns about his eldest son exhibiting similar hostile and aggressive behaviours at school and worrying about intergenerational trauma.

53. In terms of education and employment, the offender told Mr Wong that his grades in primary school in average. However, after his parents separated when he was in Year 4 his grades became poor and he became disruptive, argumentative and aggressive. He said that he was bullied throughout primary school, reported leaving school in Year 7 after multiple suspensions for fighting, drug use, displaying hostility towards teachers and disrupting classes.

54. He reported that after leaving school he worked in labouring roles and would spend his time drinking, using drugs, setting off fireworks and stealing with his friends.

55. He described being neglected by his mother and feeling that nobody cared for him during this time. The offender stated that he began working as a full-time chef in his early 20’s and completed his formal qualifications through TAFE. He said he then worked as a qualified chef for about ten years and always worked two to three jobs concurrently to support himself. I note that this period coincides with the time of the offence being May 2012.

56. The offender told Mr Wong that he eventually had a “mental breakdown” from his work and his alcohol abuse and that this led him to leaving the life of a chef and instead becoming an arborist, obtaining formal qualifications as an arborist through TAFE. He told Mr Wong that he borrowed $20,000 from his sister to start the business and that this business has been very successful and brings in a considerable amount of revenue. He reported also having another company. Prior to his reincarceration he stated that he worked seven days a week and often took on highly dangerous jobs.

46. Since his return to custody he has reported that his partner has been running the business with some difficulty on his behalf. He told Mr Wong that he is very appreciative of her and her dedication in keeping the business afloat.

Substance use

58. The offender stated to Mr Wong that he began drinking alcohol at the age of 11 and by the time of 17 he could drink what he describes as “whatever I could get my hands on” daily. He remembered spending all his money on alcohol to the extent that he did not have enough money for food and would typically drink in excess on payday. He said he would drink until he either ran out of money and could not get anymore or had fallen asleep.

59. He reported that his drinking worsened while he was in his 20’s, again around the time of the assault, when he drank at a pub after work almost everyday, sometimes with friends and sometimes alone. He stated that his drinking worsened when he started his business because of the increased cashflow and that he was drunk almost daily. He said that alcohol helped with his social anxiety.

60. He reported attempting to quit drinking multiple times with no success until October 2023 when he was released from remand.

61. He reported that he began smoking cannabis at the age of 12 and this became a daily habit by the time he was 13. He reported smoking around 14 grams a day at its peak. He said that he stopped smoking in his 20’s due to it worsening his anxiety to the point of paranoia and in the past five years he only smoked small amounts of cannabis socially about once a year.

62. He reported using amphetamines at the age of 13 and remembered having about 0.2 grams every few weekends until his 20’s. He reported that he had been using MDMA every weekend every couple of months while he was in his 20’s. He also reported having experimented with methamphetamine.

63. Between 2020 and 2022 he reported that he used between three to four grams of cocaine every weekend until he was arrested. He also told Mr Wong that he had never attempted residential or outpatient drug and alcohol rehabilitation but would certainly consider doing so.

Psychiatric history

64. The offender reported that he had been diagnosed with post-traumatic stress disorder whilst in gaol by a psychologist. This is directly linked to a sexual assault which he suffered in September 2022 whilst he was in custody at Parklea. Without going into the appalling details of this crime, he was assaulted by a cell mate who remained in the same wing as him for some three to four months after he was moved away from the particular cell in which this assault happened.

65. He reported having multiple nightmares and intrusive memories because of this incident. This caused him significant distress, which was corroborated by the Justice Health records which I have been provided.

66. Mr Wong administered the DSM-5 and DIVA-5 tests to the offender and concluded that he met the criteria for post-traumatic stress disorder and severe alcohol use disorder in sustained remission while in a controlled environment.

67. Mr Wong concluded that the offender is particularly vulnerable in prison, especially because of the chronic and complex traumas and ongoing fears whilst in gaol.

Mental health

68. When the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced, consequently the need to denounce the crime may be reduced with a reduced sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. That may mean that a custodial sentence may weigh more heavily on the person, it may reduce or eliminate specific deterrence and also reduce him being a good vehicle for general deterrence.

69. Conversely it may be that because of the person’s mental illness they present more of a danger to the community. In those circumstances considerations of specific deterrence may result in an increased sentence.

70. It will be observed that many of these characteristics and considerations pull in different directions. It will also be observed that none of those principles is stated as an absolute. What is recognised is the potential affect in any given case of a mental health disability.

71. Too often the mere fact of a mental illness is advanced to this Court as necessarily calling for a more lenient sentence, there is however no such presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether in the specific case the mental conditions as the consequence contended for.

72. In this case no issue was taken with the matters raised in Mr Wong’s report and no submission advanced that the details contained therein should be approached with any caution. I have accordingly accepted the outline given in that report.

73. I accept that the offender has and continues to suffer from post-traumatic stress disorder as the result of the violent sexual assault that he suffered from in September 2022. That will have an impact on my assessment of the appropriate sentence to be imposed upon him. I accept that he will inevitably find his time in custody more onerous. I also accept that suffering from a PTSD means that he is a less appropriate vehicle for general deterrence.

74. Notwithstanding the submissions about specific deterrence, I find that it still has a role to play because it serves to remind the offender that further offending on his behalf when he returns to the community may well lead to another custodial sentence.

Hardship to family

75. I accept that the offender’s family will experience financial hardship because he is not working and earning money for them and running the business. I accept that his incarceration will strain the relationship that he has with both his partner and his children. It is not submitted that this is a case where the Court would find “exceptional hardship”. This is because before hardship to an offender’s family can be given discreet weight in the exercise of a sentencing discretion and reducing the sentence of imprisonment substantially or to eliminate prison perhaps altogether, the offender must demonstrate an exceptional degree of hardship to third parties. That is not this case.

76. The type of financial difficulties and burden that the offender’s partner has been left with is undoubtedly going to cause her difficulties, but no different to many other offenders who find themselves in custody for historical offences. I take it into account as part of his subjective case. That is certainly an important consideration to me and part of the reason why I will find special circumstances and vary the non-parole period to lower than what is statutorily provided for in the Crimes (Sentencing Procedure) Act.

Hardship in custody

77. The offender’s custody has been particularly onerous because of the sexual assault that I have referred to in September 2022. I have received evidence in the Justice Health notes in relation to his willingness and attempts to deal with what he recognised as his alcohol abuse issues since he has been in custody.

78. Both of those matters in terms of him abstaining from alcohol and getting the necessary treatment while in custody and the sexual assault are matters which will make life more difficult for him while he is in custody. Again, this informs my conclusion about finding special circumstances.

79. Although I do not suspect it will carry much weight, I am prepared to make - at the offender’s request - a recommendation that he be housed in a one out cell in a correctional facility, ideally, near the Hunter Valley. A copy of my remarks on sentence will be sent to Corrective Services, although I note this is a matter entirely for it, not the court.

CHILDHOOD DEPRIVATION

80. The offender submitted that his social circumstances in growing up were akin to a background of deprivation and social disadvantage. It is well established that the disadvantaged background of an offender may mitigate the sentence that would otherwise be appropriate. I accept that there has been relevant disadvantage and this serves to lessen his moral culpability.

81. Whether profound childhood deprivation in whatever form it occurs is taken into account by way a reduction of moral culpability or more broadly, as part of the offender’s subjective case is a matter for the sentencing judge. In this case I find that it has a role to play in both.

82. To not consider childhood disadvantage because there is no causal connection with the offence before the Court is to ignore the subtleties and nuances of the considerations that the plurality in the High Court in Bugmy discussed. There are clearly issues of childhood deprivation set out in the psychological report that I have referred to.

DETERMINATION

83. I have considered s 3A of the Crimes (Sentencing Procedure) Act, I must give proper regard to each of those matters and I have done so. In this case protection of the community certainly looms large. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives. In this case no other sentence other than a custodial sentence is appropriate, the s 5 threshold has been crossed and I do not understand counsel for the offender to argue to the contrary.

84. I have taken into account the matters set out in the offender’s partner’s affidavit as part of his subjective case. All of those matters are important in terms of what I will ultimately find to be the appropriate sentence, I will not set them out in detail.

85. I have considered the various case summaries and cases that the parties have provided to me. I have also reviewed the JIRS statistics and the tables set out on the public defender’s website as to how cases of this nature have been dealt with by other courts. To state the obvious, comparison to single cases and their outcomes are of limited utility: what is crucial is to focus on the consistency of principle. I have attempted to do so in coming up with the ultimate sentence to be imposed.

86. One of the matters I needed to determine in this matter is the sentence commencement date. The precise time the offender has spent in custody for this offence is difficult to determine. There is at least a period of 99 days solely referrable to this matter but there is a period significantly greater than that which he has spent in custody. Some time can be referrable to this matter and some time to two other offences.

87. The agreed position between the parties is that at most an amount of 343 days can be referrable to this offence, taking into account not only the days that he was in custody solely for this matter but also for this matter and the two other matters which were before the Court.

88. Backdating the amount of 343 days from today means this sentence can commence on 10 January 2024. The sentence will be backdated to that date.

89. I have been asked to make a finding of special circumstances and I will. I have already addressed a number of the matters I have taken into account in addition to those two matters I have already indicated, I will take into account the fact that he would benefit for a longer period in the community under the supervision of Community Corrections to ensure he does not return to his habit of alcohol abuse, nor that he participates in any illicit drug use, they are important matters in order to ensure he does not reoffend.

90. I will also take into account his onerous custodial conditions as well as a need to return to the family business, both of which I have already mentioned. As I indicated to Ms Scoufis during the course of submissions, I will set the non‑parole period at 60% of the head sentence. No less non-parole period would address the seriousness of this offending.

ORDERS

91. I now make the following orders with respect to this matter.

92. Mr Murphy this is the sentence and I make the following orders. Firstly you are convicted of the offence of s 61I of the Crimes Act. You are sentenced to a non-parole period of three years commencing on 10 January 2024 and expiring on 9 January 2027. There will be a balance of term of two years. That is, you will receive an overall sentence of five years commencing on 10 January 2024 and expiring on 9 January 2029. Your earliest date for release subject to parole is 9 January 2027.

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Decision last updated: 05 February 2025