R v Murphy

[2013] NSWDC 33

District Court

New South Wales

Medium Neutral Citation:	R v Murphy [2013] NSWDC 33
Hearing dates:	15 February 2013
Decision date:	15 February 2013
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment consisting of a non-parole period of 18 months and a head sentence of 3 years. Sentences are to be served concurrently
Catchwords:	CRIMINAL LAW - Sentence - Robbery in company (3 offences) - Drunken violence
Legislation Cited:	Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	The Crown David Neville Murphy
Representation:	Mr J Booth - Offender Legal Aid Commission - Offender Director of Public Prosecutions
File Number(s):	2012/109521

sentence

1. Late last year I sentenced two men, Joshua Upton and Steven Green for three offences of robbery in company. They were committed with another man David Murphy, whom I must now sentence.

1. The reason that Mr Murphy was not sentenced at the same time as his cooffenders is that a psychological report tendered today was not available on the last occasion. Mr Booth, who appears for Mr Murphy today, relies on the principle of parity and says that his client would have a justifiable sense of grievance if he received a longer sentence than those imposed upon his cooffenders.

1. Whilst the Crown cannot rely on the principle of parity, the Crown also submits that the sentence imposed upon Mr Green and Mr Upton was appropriate to be imposed upon Mr Murphy.

1. I spent some time in sentencing the cooffenders addressing the issue of drunken violence, particularly drunken violence in Newcastle.

1. Offences such as those committed by Mr Murphy and his cooffenders are distressingly commonplace in this area. Often they are committed by those who really have no purpose in their lives, people who are unemployed and whose main activity seems to be obtaining money to take drugs and then taking drugs. Mr Murphy is not in that category. He was employed in a good occupation at the time he committed these offences. Unfortunately he was on holidays and during that period he began to drink to excess and to use drugs. He was heavily intoxicated, he says, at the time of these offences.

1. What occurred on 7 April I described in my earlier remarks on sentence. I can therefore be relatively brief. Three young people were walking along Hunter Street one evening, they were going to the pub when they came across three other people, Mr Murphy and his two co-offenders. It seems to have been an opportunistic decision by the three offenders that they would rob the three other people that they met. One of them, one of the offenders demanded money and when the victim said no, Mr Upton just punched him in the face. The innocent young people, not surprisingly, decided then to cooperate with the offenders.

1. One of the victims took his wallet out and threw it on the ground. Mr Upton was not satisfied and said "What about your phone?" and when the victim said he did not have one Mr Upton hit him again. This led to that particular victim taking his iPhone, a new one, out of his pocket and throwing it on the ground while trying to get away.

1. Mr Green and Mr Murphy were not just standing back watching, they approached the other two people and Mr Murphy yelled  "Give us your phone, give us your money" and began waving his fists around, so was Mr Green.

1. One of the other victims handed over a wallet to Mr Murphy and the other one handed over a purse to him as well and they ran off.

1. Fortunately there was a patrolling police car nearby. The victims waved it down, described what had happened and police eventually found and arrested the three offenders.

1. The victim who had been punched ended up with a bleeding nose, swollen and sore right side of his head and could only open his jaw halfway before pain stopped him doing so. He also had a small chip to his lower front tooth.

1. Given that description of the offences it is obvious why I described them as serious. People should be entitled to walk along Hunter Street Newcastle at 10.20 in the evening without being set upon by those such as Mr Murphy who are intoxicated, affected by drugs and prepared to inflict violence simply so that they could get some money.

1. Mr Murphy was born in Perth. His parents separated before he was even born and he has no contact with his father. His mother remarried and his relationship with his stepfather was very poor. Whilst his mother tried to provide for him and his half sister, she was a drug user. She exposed Mr Murphy to drugs at a very young age and thus desensitised him to their use.

1. Because, in particular, of the way in which he was treated by his stepfather, Mr Murphy began to ventilate his frustrations and distress by becoming aggressive with other children. He has had problems with, what Mr Booth described, his anger for many years since. There is another area of abuse suffered by Mr Murphy that I am not going to repeat in public, which is referred to in the psychological report tendered on his behalf.

1. As he was getting older he had problems at school being repeatedly expelled for fighting. His education has settled down now and he is just one month short of qualifying as a boilermaker. He intends to complete this when he returns to the community after being released from custody. If he can do so then of course his prospects for rehabilitation are enhanced. If he can keep himself busy through work it is much less likely that he will be abusing drugs and alcohol and committing offences such as those I have just described.

1. As is obvious, he has been using drugs for a number of years. And as is not surprising these have caused problems in his relationships, in particular the relationship he has with the mother of his child, a boy aged seven. Despite the instability of the relationship, caused almost exclusively I gather by problems that Mr Murphy has with his anger and drug use, he maintains an amicable friendship with his former partner, although he intends to live alone when he is released from custody.

1. Not all upbringings are the same and not all of us have the same opportunity to live a life which does not involve offending. Some people have parents who provide strong boundaries. Others, such as Mr Murphy, do not have that luxury. The appropriateness of his behaviour was not questioned to the same level that other children experienced as he was growing up. And this is one of a number of matters which has led to Mr Murphy offending relatively often in the past.

1. He has matters on his criminal history but there is only one other similar matter which he committed as a child. He was sentenced for that matter in the Wagga Children's Court. He has served custodial sentences before but for not as long as the sentence I must impose upon him.

1. Mr Murphy articulates very precisely what needs to happen. He says that in the past he was going nowhere and he needs to make some changes. He is now 28 years of age and cannot rely on any suggestion of immaturity. He is a grown man and should be able to act as a grown man. That is he should be able to take responsibility for his own actions.

1. In that regard he has expressed his remorse both to psychologists and in giving evidence today. He says that he feels horrible about what happened and is sorry as well. Consistent with his remorse he pleaded guilty at the earliest opportunity and so to reflect the utilitarian value of his plea I will discount the sentence I would impose by twenty-five percent.

1. I note that at the time of his offending he was on two bonds, one under s 10 and one under s 9 of the Crimes (Sentencing Procedure) Act. A decision has been made that no action will be taken on the breach of the s 10 bond, but the consequences of him breaching the s 9 bond by the commission of these offences is yet to be determined. That is unfortunate. The breach of bond should have been referred to the magistrate before I sentence Mr Murphy. After I sentence him the matter will go before a magistrate who is left in an uncomfortable position. He or she can either impose token punishment upon Mr Murphy, which is not appropriate given his need to be punished for having breached the bond, or the magistrate can impose a sentence of some severity which must necessarily cut into the non parole period that I will shortly announce. That will in turn mean that there is less time for Mr Murphy to be supervised by the Probation and Parole Service, which in turn again makes it less likely that he will achieve the full measure of rehabilitation.

1. For these reasons it is important that people in Mr Murphy's position who have breached bonds have those breaches dealt with before they appear for sentence in this court. I trust that in future this situation will not arise. It is incumbent upon the Crown to ensure that it does not.

1. Another problem is that there is a risk that Mr Murphy will be double punished for having breached the bonds by me regarding it as an aggravating feature of his offending and then by a magistrate dealing with the breach of bond without noting that he has already been punished by me for breaching it. It is therefore incumbent upon the Crown again, assisted by Mr Murphy's lawyers, to ensure that when the matter goes before the magistrate, the magistrate is made fully aware that I have regarded the breach of bonds as an aggravating feature of this offence.

1. For each of the matters I will impose concurrent sentences. As I noted when sentencing the others that is unusual, but I do so as a measure of leniency towards Mr Murphy.

1. For each matter he is sentenced to imprisonment. I impose a non parole period of eighteen months with a head sentence of three years to date from 7 April 2012. His non parole period will expire on 6 October 2013 on which day he is to be released to parole.

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Decision last updated: 09 April 2013