R v Murray
[2021] ACTSC 124
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Murray | ||
| Citation: | [2021] ACTSC 124 | ||
| Hearing Date: | 24 June 2021 | ||
| Decision Date: | 24 June 2021 | ||
| Before: | Elkaim J | ||
| Decision: |
|
sentenced to 2 years and six months’ imprisonment to
commence on 1 January 2021 and end on 30 June 2023.
(ii) For the offence of common assault the offender is sentenced
to 3 months’ imprisonment to commence on 29 May 2023
and end on 28 August 2023.
(iii) I set a nonparole period of 14 months to commence on 1 January 2021 and end on 28 February 2022.
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – common assault – impact of offending – offender remorse – deprived background of offender – prospects |
| of rehabilitation | |
| Legislation Cited: | Crimes Act 1900 (ACT), s 26 Criminal Code 2002 (ACT), s 310 Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10, 33 |
| Cases Cited: | R v GE [2014] ACTSC 181 |
| Parties: | The Queen (Crown) |
| Trudy Pearl Murray (Offender) | |
| Representation: | Counsel |
| E Wren (Crown) L Vozella (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Vozella Lawyers (Offender) | |
| File Numbers: | SCC 275 of 2020; SCC 145 of 2021 |
| ELKAIM J: |
1. On 30 November 2020 the offender pleaded guilty to one count of aggravated robbery,
contrary to s 310 of the Criminal Code 2002 (ACT). The maximum penalty is 25 years’
imprisonment, a fine of $400,000 or both.
2. The offender also pleaded guilty, on 15 June 2021, to a charge of common assault,
contrary to s 26 of the Crimes Act 1900 (ACT). The maximum penalty is 2 years’
imprisonment.
3. The offender has spent 88 days in custody in relation to the above offences.
4. The details of the offences are set out in the Statement of Facts. In summary, on 24 October 2020, a gold-coloured Toyota Corolla, with two occupants, was on Hindmarsh Drive in Stirling. The Corolla was owned by the passenger and being driven by her friend. It was directly behind a blue Corolla.
5. As they were driving along the two occupants of the gold Corolla noticed the occupants of a Holden Astra throwing assorted items out of the Astra. Using hand gestures the occupants of the gold Corolla questioned the actions of the occupants of the Astra. The latter took offence at the gestures, which were not offensive in nature, and took up position behind the gold Corolla. The Astra collided with the rear of the gold Corolla. The passenger in the gold Corolla used her mobile phone to film the Astra.
6. The Astra overtook the Corolla and again deliberately collided with it, causing it to stop on Pearson Street. Two persons got out of the Astra, one was Mr Akeem Alberts. The other was the offender. Mr Alberts opened the door of the Corolla and brandished a knife. The offender entered the rear of the vehicle. The driver of the Corolla, obviously very scared, jumped onto the front passenger. The offender punched the passenger in her right eye and took her mobile telephone. In order to secure the telephone she bit
the passenger’s right wrist for about five seconds.
7. The driver and the passenger of the Corolla left their vehicle and ran away, in fear of their safety.
8. The driver of the blue Corolla had seen the collision and pulled over. Mr Alberts and the offender approached the blue Corolla. Mr Alberts was gesturing with his knife. The driver sensibly locked the door and reversed away. She located the occupants of the gold Corolla and contacted the police. The threatening of the driver of the blue Corolla is the subject of the common assault charge.
9. The two offenders drove away in the gold Corolla. They and the vehicle were located by the police later on the same day.
10. The driver and passenger of the gold Corolla have provided Victim Impact Statements.
11. The passenger says that she was nearing the completion of Year 12 when the incident occurred. She said that she received medical treatment for the bite on her arm and for the punch to the head. She was told to visit the hospital. She required a tetanus vaccine and antibiotics for the bite wound. The dressing needed to be changed by her general practitioner. She also required blood tests to exclude viruses including HIV and Hepatitis B. Fortunately all the test results were negative. She required a vaccine booster and will require further testing.
12. She described a number of psychological effects that have emanated from the incident. They include panic attacks and anxiety when driving. She has started to self-harm and has expressed anger about the effects of the criminal conduct. She feels unsafe when she is alone, in particular at night. Her relationships have suffered. She needed a dispensation for her exams. She also suffered economic loss including the loss of her motorcar, her phone, her laptop, her air pods and some medication. She is currently receiving psychological treatment.
13. The offender objected to the statement of the driver. She says that the driver was not a primary victim of the offending. The combination of ss 47 and 49 of the Crimes (Sentencing) Act 2005 (ACT) did not permit the driver to provide a Victim Impact Statement. The Crown responded that the definition of victim should not be given an overly narrow approach and referred me to the decision of Penfold J in R v GE [2014] ACTSC 181 from [20].
14. In order to permit the sentencing hearing to proceed expeditiously, and being aware that the victims were in Court, I allowed both Victim Impact Statements to be read
subject to a later decision on admissibility. The driver’s statement was read by her
mother.
15. I have decided not to resolve the controversy. I think there is merit in both sides of the argument. However on the facts of this case I cannot see that the sentencing process will have been affected by the reading of one as opposed to both statements.
16. The statement of the owner was very detailed and covered many aspects of her life since October 2020. The driver has also suffered in a similar way. She has found her first year of university to be very difficult. She has required treatment which has been funded by her parents, who have been a great support to her.
17. It is abundantly obvious that the offending has had a very marked effect on the two young women and it is an effect that will stay with them for a long time, if not permanently.
18. I have deliberately not included their names in these reasons to avoid any further
anguish for them. They will realise that these comments will be published on the Court’s
website and will be available for perusal by the public.
19. Turning now to the offender. My first observation, which occurred during the reading of the Victim Impact Statements, is that the lifestyle described by the two young women in their statements is one that was never available to the offender. This does not in any
way excuse her actions, but does give some perspective to the offender’s background.
She was born in 1994 in Queensland but she was raised in far north New South Wales.
She is the second eldest of 14 children. She is of Indigenous origin.20. Her seniority amongst her siblings led her to having parental responsibilities to cover
the shortcomings of her parents’ alcohol dependency. She was physically abused by
members of her family. She struggles to recall any positive features of her childhood.
21. The offender has a three-year-old child who is subject to care orders. The child is currently in kinship care. Her partner was the co-offender. She has now ended the relationship in the hope that she can distance herself from his antisocial behaviour.
22. The offender left school in Year 6. She has never worked. She started drinking at a very early age by which time she was already using cannabis. More recently she has been using methamphetamines intravenously. She has been attending a program to try and deal with these issues. There are signs of success. There has been a diagnosis of a bipolar disorder. The offender has had suicidal ideation and experienced episodes of self-harm.
23. The offender expressed regret about her behaviour to the authors of the Pre-Sentence
Report. She correctly described her conduct as “stupid” and felt “disgusted in her behaviour”. The report says that the offender is not suitable for an Intensive Correction
Order because of her poor compliance with previous community-based orders.
24. The offender has a criminal record in NSW and in the ACT. There are a wide range of offences including burglary, theft and assault.
25. The offender has written a letter to the victims. The Pre-Sentence Report referred to the limited literacy skills of the offender. She must have had assistance with the well- structured letter. Nevertheless I do accept it as an indication of remorse on her part.
26. There is a report from a psychologist, Dr Boer. His testing revealed a diagnosis of a Major Depressive Disorder with recurrent episodes and anxious distress. He says that she uses drugs to self-medicate in order to lessen her depression. He also diagnosed a Stimulant Use Disorder and a Post-Traumatic Stress Disorder. The latter has existed since childhood. Finally he found evidence of a Borderline Personality Disorder. He
says that “persons with this disorder have ongoing problems with relationships and
have problems with impulsivity and recurrent suicidal behaviour”.
27. Dr Boer says the offender requires therapy. He notes that she is more compliant with her medication when in custody, but custody may also have a negative impact upon her, in particular in alienating her from her family and daughter.
28. Mr Alberts has been sentenced for his part in the offending. On 12 May 2021 he was
sentenced to 2 years and six months’ imprisonment for the aggravated robbery and three months’ imprisonment (of which one month was concurrent with the longer
sentence) for the common assault. A nonparole period of 18 months was set.
29. The offender has acknowledged that she must receive a sentence of imprisonment. The offender is entitled to a discount for her plea of guilty. I assess this at 25%.
30. In relation to the objective seriousness of the robbery offence, I think it is about medium for this type of offence. The whole incident was uncalled for. A knife was involved. Two young women were terrorised. Physical injury was inflicted. Mental injury will be felt for a long time.
31. At the same time the offender’s background must be taken into account, as must her
assorted mental health disorders. She grew up in deprived circumstances. She was clearly unable to grasp whatever chance of avoiding involvement in crime that was ever available to her.
32. There are some signs of rehabilitation, as seen in the letters provided on her behalf. As I have already said, I think there are signs of genuine remorse.
33. Parity is important. This was recognised by the Crown and Mr Vozella, on behalf of the offender. They both said that the same head sentence should be applied. Their difference was that the Crown said that while there may have been some distinction in the subjective features of the two offenders, ultimately there was no reason for there to be a different nonparole period. Mr Vozella submitted there were important differences in subjective features and they should be reflected through a different nonparole period. More importantly, he highlighted the real prospects of rehabilitation held by the offender.
34. I have read the sentencing remarks of Refshauge AJ, who, as I have said, sentenced Mr Alberts on 12 May 2021.
35. I adopt his Honour’s overall approach to the principles to be applied and also his description of the background facts. I also agree with his Honour’s allowance of a
discount of 25%.
His Honour’s remarks do highlight some important subjective differences between the
two offenders. Firstly Mr Alberts, despite many problems with his upbringing, did at least have the opportunity to complete high school. He also was able to maintain a good relationship with his father. Secondly, and much more importantly, Mr Alberts had no mental health issues. This is in very stark contrast to the personal circumstances of this offender.
37. Not only has she been deprived of anything close to a decent childhood but she has also been beset, as described by Dr Boer, by overwhelming mental health issues. The fact that there are now some prospects of rehabilitation must be given full effect.
38. I agree with the parties that the head sentence should be the same. But for the reasons I have given I think a different nonparole period should be applied. Obviously the parole authority will take into account the conduct of the offender in custody and whether or not the early signs of a change in attitude and desire for rehabilitation still exist.
39. I have already referred to the necessity for imprisonment. This arises from consideration of s 10 of the Crimes (Sentencing) Act 2005 (ACT). Sections 6, 7 and 33 are also important.
40. The sentences I will order have taken into account the 25% discount, in the same way as applied by Refshauge AJ. The start and end dates will be different to take into account separate sentences the offender has received in the Magistrates Court.
41. I make the following orders:
(i) For the offence of aggravated robbery the offender is sentenced to 2 years
and six months’ imprisonment to commence on 1 January 2021 and end
on 30 June 2023.
(ii) For the offence of common assault the offender is sentenced to 3 months’
imprisonment to commence on 29 May 2023 and end on 28 August 2023.
(iii) I set a nonparole period of 14 months to commence on 1 January 2021 and end on 28 February 2022.
I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.
Associate:
Date: 24 June 2021
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