R v Murphy

[2019] NSWDC 635

District Court

New South Wales

Medium Neutral Citation:	R v Murphy [2019] NSWDC 635
Hearing dates:	30 August 2019
Date of orders:	30 August 2019
Decision date:	30 August 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Paragraphs [33] to [36]
Catchwords:	CRIME — Violent offences — Recklessly cause grievous bodily harm — in company CRIME — Complicity — Joint criminal enterprise
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	Cassidy Murphy (Offender) Director of Public Prosecutions (Crown)
Representation:	Counsel: D Pullinger (Accused)   Solicitors: C Hurford (Crown) P Grant (Medcalf Grant Lawyers) (Offender)
File Number(s):	2017/00166816

SENTENCE

1. HIS HONOUR: The offender stood trial before a jury at Penrith on an indictment that contained a single count, which alleged that on 2 June 2017 at Lethbridge Park he caused grievous bodily harm to Dean Beale, with intent to cause grievous bodily harm to Mr Beale. The jury found the offender not guilty of that count but convicted him of the statutory alternative charge of recklessly cause grievous bodily harm to Mr Beale in company with another person. That is an offence under s 35(1) of the Crimes Act.  It has a maximum penalty of 14 years' imprisonment and there is a five year standard non‑parole period.

Facts of the Offending

2. These being sentence proceedings after trial, I am required to find the facts upon which the offender is to be sentenced consistent with the verdict returned by the jury.  To the extent I find facts adverse to the offender I must be able to find those facts proved beyond reasonable doubt.  I find the following facts proved beyond reasonable doubt, essentially to a significant degree taken from the facts contained in the Crown's written submissions.

3. On the evening of 1 June 2017, the victim Mr Beale went to visit a friend, Will Ewart at a unit in Lethbridge Park.  Mr Ewart was living at the unit with Petara Kingi and the offender's mother, Louise Marne.  Ms Kingi's cousin, Joweli Sisifa was also visiting.  They were all present at the unit at the time of the offence.  Throughout the evening the parties were all socialising and playing cards at the table in the dining room area.

4. At some point that evening, Belinda Chilli walked over to the unit to visit the offender's mother.  While she was walking to the unit she ran into the offender and told him that she was on her way to visit his mum.  The offender and Ms Chilli then walked to the unit together.  When they arrived at the unit, Ms Chilli and the offender went inside.  The offender borrowed $20 from Mr Ewart before leaving.  Ms Chilli stayed at the unit and subsequently started playing cards with the others who were there.

5. At around midnight or early the following morning on 2 July 2017, a John Cobban called the offender and asked him for some money.  During the conversation the offender asked Mr Cobban to pick up the co‑offender Michael Dunn, and meet the offender at the unit.  Cobban agreed to do this.  He did not have a valid driver's licence at the time so he arranged for his friend, a Mr Faasolo, to drive him to collect Mr Dunn and take him to the unit.

6. The co‑offender Dunn was living with Charmaine Pitman at an address on Bunya Road and Ms Pitman is the victim's former partner.  After collecting Mr Dunn, Mr Faasolo drove Mr Cobban and the co‑offender Mr Dunn to the unit.  When Faasolo arrived at the unit, Mr Cobban and the co‑offender Dunn got out of the car and Mr Faasolo remained inside the vehicle.

7. Mr Cobban and the co‑offender Mr Dunn walked up to the unit and knocked on the door.  Ms Marne opened the door and when she did this, Mr Cobban looked inside and saw the victim sitting at the table with others.  When Mr Cobban saw the victim, he turned and walked back towards the vehicle.  The co‑offender, Dunn, followed a short distance behind.  While walking back towards the car, Mr Cobban saw the offender coming up the alleyway and Mr Cobban asked the offender what was going on, to which he replied, "Nothing".

8. The offender and the co‑offender Mr Dunn met up on the footpath out the front of the unit.  A few minutes later the offender and the co‑offender walked up to the door of the unit and went inside.  The offender walked in first and the co‑offender, Mr Dunn, followed closely behind.  Mr Ewart, Ms Kingi, Mr Sisifa and Ms Chilli and the victim were still sitting at the table playing cards.

9. At some point after the offender walked inside, the co‑offender removed a hammer from his shirt.  The offender and the co‑offender Dunn walked up to the table where the victim was seated.  The offender walked behind the victim and stood to one side of him.  The co‑offender Dunn stood on the other side.  The offender then punched the victim once to the face with some degree of force.  There was some conflict in the evidence of those present as to how many times the offender punched the victim.  Given that conflict, I could only be satisfied that he punched the victim once, but it was a forceful blow.  At about the same time, Dunn hit the victim repeatedly with the hammer at least three to five times.  The 000 call that was played during the course of the trial was very distressing to listen to.

10. At some point while this was occurring, that is the assault with the hammer, the offender called out, "That's enough, stop, you'll kill him", or something similar, and pulled Dunn away from the victim and out of the unit.  It seems likely that if the offender had not intervened, Dunn may well have killed the victim.

11. At this point Mr Sisifa called triple‑0 and requested emergency services to attend the unit, and as I say, that call is a chilling one to listen to.  The victim was conveyed to Westmead Hospital.  Upon arrival he was placed in an induced coma.  He sustained a number of injuries which included an open fracture of the left temporal bone and underlying extradural haematoma, acute internal bleeding on the inside of the skull causing compression to the brain.  He was taken to theatre for wound debridement closure and insertion of an inter‑cranial pressure monitor.  He was then transferred to the intensive care unit where he remained for several days.  The victim underwent a progress CT scan of his brain, which revealed that the left side of the extradural haematoma had increased in size.  As a result of this, he underwent further surgery on 15 June 2017, namely a left temporal craniotomy and evacuation of the left temporal haematoma.  This involved a portion of his skull being removed to enable the left temporal haematoma to be released.

12. The victim recuperated from his severe head injury in the neuro‑surgery ward and was discharged from hospital on 14 July 2017.  There was no dispute at the trial that the injury suffered by the victim had the potential to be life threatening and that it amounted to grievous bodily harm.

13. The offender gave evidence at the trial that he was not party to a joint criminal enterprise to assault the victim and that he did not strike the victim and the jury, by its verdict, rejected that part of the account given by the offender.  The victim, when he gave evidence in the trial, essentially had no memory of how he ended up in hospital that evening.  There is a victim impact statement before me which details the significant impact the vicious assault had upon him.

Assessment of Objective Seriousness

14. I turn then to my assessment of the objective seriousness.  There was clearly a level of prearrangement between the offender and the co‑offender, Dunn, to assault the victim.  On the evidence in the trial, the assault appears to be an unprovoked one.  The jury's verdict is consistent with this offender not knowing that Dunn had a hammer and intended to strike the victim to the head with it and cause really serious injury.  I note in that regard that the jury convicted the offender of recklessly cause grievous bodily harm in company with Dunn.  That required the jury to be satisfied beyond reasonable doubt that the accused participated in the joint criminal enterprise to assault the victim, and realised that actual bodily harm may be caused to him.

15. I note the fact that Dunn had effectively concealed the hammer when he entered the premises when the assault occurred is consistent with the offender not knowing that he possessed it.  I note also that this offender interjected to stop Dunn continuing with his assault, fortunately for the victim.  The offender himself struck the victim with his fist to the face once, and that was clearly a cowardly act.  The victim sustained severe and life-changing injuries as a consequence of the offence, although it seems clear that the serious nature of the injuries was a result of being struck in the head by the co‑offender with a hammer.

16. I have also had regard to the fact the offender is criminally liable for the offence on the basis of the doctrine of joint criminal enterprise.  While each participant in a joint criminal enterprise is equally responsible for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, a particular participant's level of culpability is to be assessed by reference to the conduct of that particular participant.  I consider overall that given the offender's limited role in the offence, and my finding that he did not know Dunn intended to strike the victim to the head with a claw hammer, the objective seriousness of his offence is below a notional midrange offence, although clearly not at the very bottom of the range.

Offender’s Subjective Case

17. I turn then to the offender's subjective case.  He is currently 24 years of age and was 21 at the time of the offending.  He was at the time of the offence a relatively young adult offender and remains so now.  The principles associated with sentencing a young adult offender have application here.  Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing a young adult offender.

18. He has a criminal history dating back to when he was a juvenile.  As an adult he served sentences of imprisonment for break, enter and steal, possess house breaking implements and armed robbery.  He has something of a record for violent offending which disentitles him to leniency in this sentencing, but it is not an aggravating factor.

19. On 4 July 2016 he was sentenced for an offence of armed robbery and received in this Court a sentence of three years' imprisonment with a non‑parole period of 16 months. The sentence commenced on 4 December 2015 and expired on 3 December 2018. He was released to parole on 3 April 2017. The current offence was committed within three months of being released to parole. The offence was also committed while on a s 9 bond for an offence of being carried in a stolen car without the consent of the owner. That bond has been called up and the papers are before me. The fact the offence was committed while on conditional liberty is an aggravating factor, under s 21A of the Crimes (Sentencing Procedure) Act.

20. As a consequence of his involvement in the current offence, his parole order was revoked.  The breach report also noted that he had at that time an unsatisfactory response to parole supervision.  He was returned to custody on 3 June 2017 where he has remained.  He has served the balance of his parole of the armed robbery sentence during the period 3 June 2017 to 4 December 2018.  He has been in custody solely in relation to the current matter since 4 December 2018.

21. I have been provided with a sentence assessment report dated 26 August 2019 prepared by Community Corrections.  I have also before me a document under the hand of Reverend Paul Hannah, and a letter from the offender's elderly grandfather who was instrumental in the offender's upbringing.  I note also that his grandfather regularly attended the trial in Penrith earlier in the year, supporting his grandson.  He is not here today, only because of his age, the inclement weather and the distance the Court is from his home.  I also have a document and oral evidence from the offender's aunty, Melanie Marne.

22. Prior to his incarceration, the offender was residing with his grandfather and aunt.  The offender was abandoned by his father at an early age and his grandfather took over the care of his daughter's children.  In his letter to the Court, the grandfather describes the offender as quite a lovely child;  "He gave me no trouble whatsoever, he was very obedient, he was the best of them all".

23. His aunty gave evidence today of the impact the return of the offender's mother had when he was a teenager, given her addiction to illicit substances, which then exposed the offender to illicit substances.

24. The offender was in receipt of Centrelink benefits prior to his incarceration and has no history of employment.  In terms of his drug use which I mentioned a moment ago, he was using cannabis and ice on a daily basis at the time of the offence.  He stated to the Community Corrections officer that most of his associates who were living in his community are involved in drug use and he would like to live elsewhere upon his release.  He admitted in the sentence assessment report to using non‑prescribed buprenorphine during this period in custody, something which is very common, unfortunately, amongst young inmates.

25. The offender expressed his willingness to participate in an intervention to address his substance abuse and mental health issues.  Clearly drug use is at the heart of his offending.  The sentence assessment report does not address his psychiatric history per se, however it is stated that the offender has a history of difficulty with regulating his emotions and aggressive outbursts and draws attention to his substance abuse.  He has been charged with four institutional conduct charges during his recent period of incarceration and he attributed those to being affected by the loss of a family member whilst in custody.

26. A breach report was issued during his last period of supervised non‑parole.  The offender's response to supervision at that time was considered unsatisfactory.  The offender stated that his social influences and substance use led to his involvement in the offending.  He denied in the sentence assessment report taking part in the offence placed blame onto the co‑offender, claiming that he stopped the co‑offender from harming the victim any further.  His intervention to prevent further harm to the victim is something I accept, as indicated earlier. His denial in taking part in the offence affects my assessment, however, of his level of remorse, but of course he is entitled to maintain his innocence.  Despite that denial, the offender expressed that he felt sorry for what had happened to the victim.

27. The Community Corrections officer assessed the offender at a medium to high risk of reoffending.  The offender reported to the author of the sentence assessment report that he experiences untreated back pain that would impair his ability to work upon release.  Given the content of the sentence assessment report, there seems to be essentially no evidence of remorse, although I have little doubt that the offender has some sorrow concerning the extent of the injuries the victim suffered.

Sentence

28. Given the offence was committed shortly after being released to parole and the content of the sentence assessment report, his prospects of rehabilitation are, in my opinion, no better than guarded.

29. There is not strictly speaking a parity issue here, as the co‑offender pleaded guilty to a more serious charge with a higher maximum penalty and the co‑offender was clearly more significantly involved in the attack on the victim.  The co‑offender also was older, had a more significant criminal record and he, too, had been on parole for a short period of time when he committed the offence that he was sentenced for by Hanley DCJ.  I note the sentence Hanley DCJ imposed on the co‑offender, but for the reasons I have stated, parity is not really a relevant consideration here.

30. The sentence I impose will be partially accumulated upon the balance of parole he has already served.  He remains relatively young and clearly given his problems with illicit substances in the past, will require intensive supervision in the community once released to parole.  His prospects of rehabilitation, in my opinion, will be assisted if he has a longer period on parole than that provided by the statutory ratio and for those reasons, I propose to make a finding of special circumstances when fixing the non‑parole period.

31. I outlined earlier his recent custodial history.  I note he has been in custody since his arrest on 2 June 2017 and I noted earlier the balance of parole he served during that time.  I note the offender's parole was revoked due essentially to the commission of the subject offence.  In the circumstances, I propose to commence this sentence from 3 March 2018.

32. I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act.  People who commit such senseless, unprovoked acts of serious violence must receive significant sentences to deter not only the offender concerned, but others from committing such offences.  Both general and given the offender's record, personal deterrence, must be reflected in the sentence I impose.  Clearly the only appropriate sentence is one of fulltime custody.  The maximum penalty and standard non‑parole period have been taken into account as legislative guideposts.  It will be seen I have departed from the standard non‑parole period because of my assessment of the level of objective seriousness and my finding of special circumstances.

Orders

33. Mr Murphy, you are convicted of the offence that the jury found you guilty of.  You are sentenced to a term of imprisonment consisting of a non‑parole period of one year and eight months and a balance of term of one year and four months.  That is a total sentence of three years' imprisonment with a non‑parole year of one year and eight months.  It commences on 3 March 2018 and expires on 2 March 2021 and the non‑parole period expires on 2 November 2019.

34. The earliest date you are eligible to be released to parole is the date of the expiry of the non‑parole period, which is 2 November this year.  Whether you are in fact released to parole that day is a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison, in determining whether you are released then or on another date.  If you are released on 2 November this year, you will need to ensure you fully comply with the conditions of the parole that are set and ensure that you do not commit further offences unless you wish to return to custody.

35. No action is taken on the breach of the s 9 bond.  It forms part of the aggravating circumstance of committing the offence on conditional liberty.

36. It is three years with a non‑parole period of one year and eight months.  It commences on 3 March 2018, the sentence expires on 2 March 2021, and the non‑parole period expires on 2 November 2019.  I do not think there was anything left on a 166 certificate, it was only the bond that I had to deal with and I have dealt with that in the way I have indicated.  Mr Murphy will need to go downstairs, thank you.

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Decision last updated: 07 November 2019