R v Murray
[2016] ACTSC 173
•13 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Murray |
Citation: | [2016] ACTSC 173 |
Hearing Date: | 13 July 2016 |
DecisionDate: | 13 July 2016 |
Before: | Murrell CJ |
Decision: | Sentenced to two years and three months’ imprisonment. Sentence suspended after six months’ full-time imprisonment. Good behaviour order made. See [48]–[51]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – in company – strong subjective factors – disadvantaged background and youth |
Legislation Cited: | Crimes (Sentence Procedure) Act 1999 (NSW) s 9 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35, 36 Criminal Code 2002 (ACT) s 310A |
Cases Cited: | R v Henry (1999) 46 NSWLR 346 R v Hodge [2015] ACTSC 214 |
Parties: | The Queen (Crown) Ricki Rose Murray (Offender) |
Representation: | Counsel Ms K MacKenzie (Crown) Mr M Stewart (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Offender) | |
File Number: | SCC 108 of 2016 |
MURRELL CJ:
The offender adhered to a plea of guilty to the offence of aggravated robbery (in company) contrary to s 310A of the Criminal Code 2002 (ACT).
The maximum penalty for aggravated robbery is 25 years' imprisonment and/or a fine.
The plea was entered at an early stage. The Crown case was strong. However, the plea was valuable and I will allow a 25% discount for the plea.
The offender has been in custody since her arrest on 8 March 2016.
Facts
At about 9.45 pm on Monday, 26 January 2015, the offender and co-offenders, Mr Hodge and Ms Lawrence, went to the Kambah home of the victims, Mr Miles and Ms Buckley. Mr Miles was at home watching television. Ms Buckley was out.
The offenders banged on a window. Mr Miles looked out. Mr Hodge asked who was home and Mr Miles informed him that everyone was out. Mr Hodge asked whether Mr Miles had any “weed”. Mr Miles said that he did not. Mr Hodge said that he would take a bike to obtain some. Mr Miles told him that he should not do so as the bike belonged to Mr Miles' children. Mr Hodge began to yell. He punched through the window and grabbed Mr Miles' hand. The offenders moved to the locked front fly-screen door (the main door was open) and began to bang on it, calling out to Mr Miles to give them money and drugs.
Eventually, the offenders forced their way through the fly-screen door. As they entered, Ms Lawrence was carrying a chair leg. Mr Hodge pushed Mr Miles into the laundry, demanding money, drugs and the keys to Mr Miles' motorbike. Mr Miles was frightened. He took Mr Hodge upstairs to where Mr Miles' wallet was located. Mr Miles gave his motorbike keys to Mr Hodge. They returned downstairs, where the offender threatened Mr Miles and demanded his wallet. Mr Miles passed his wallet to her and she removed several cards from it.
Mr Miles ran from the house. He was chased by the offender. Mr Miles began to call triple zero (000). It was not until later that he realised that the call had connected. The offender grabbed Mr Miles. There was a physical altercation during which Mr Hodge approached Mr Miles and hit him on the back of the head. Mr Miles fell to the ground. The offenders hit him several times.
Neighbours came to the rescue of Mr Miles, fending off the offenders with a golf club. The offenders ran to a neighbouring property.
As a result of the assault by Mr Hodge, Mr Miles sustained abrasions to his head and forearm.
Police obtained a search warrant for the neighbouring property and attended the premises at 4.25 am. The offenders were present. Police located several bank cards in the names of the victims. During the search, Mr Hodge made admissions to the police.
Parity with co-offender
Mr Hodge pleaded guilty at an early stage and provided assistance to the police by identifying the offender and Ms Lawrence and providing details concerning the offence. For the aggravated robbery, I sentenced him to two years and eight months' imprisonment and reset an existing nonparole period at two years: R v Hodge [2015] ACTSC 214 at [40]–[41].For the assault occasioning actual bodily harm, Mr Hodge was sentenced to 11 months' imprisonment to be served concurrently. The sentences were reduced by a combined 40% discount under ss 35 and 36 Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) from starting points of four and a half years and 18 months' imprisonment respectively.
Mr Hodge was sentenced on the basis of facts that were slightly more serious than the facts upon which I am to sentence this offender. He was 27 years old. He had a significant criminal record for matters of dishonesty and violence, including prior offences of aggravated burglary and aggravated robbery. He had served substantial sentences of imprisonment in the past. He was on parole for similar matters at the time of the incident, and the incident occurred only two and a half months after he had been released to parole.
Mr Hodge had a very disadvantaged upbringing. He had a history of polysubstance abuse and significant psychological problems. His prospects of reoffending were uncertain.
Objective seriousness
The offence was charged as an aggravated robbery on the basis that the offender was in company. She was in the company of two other people, whereas the offence can be constituted by the presence of one other person.
It is another aggravating feature that a co-offender, Ms Lawrence, was armed with a chair leg.
There was a degree of planning associated with the robbery, although it was not a sophisticated operation. It was, in effect, a home invasion motivated by a desire for money and drugs. The victim was at home alone at night.
These circumstances make the aggravated robbery objectively serious.
Subjective factors
The offender is a 21-year-old Aboriginal woman who identifies as an indigenous person. She was 20 years old at the date of the offence.
She has an adult criminal record in New South Wales comprising driving matters and riding in a conveyance taken without consent in 2013. For the latter matter, she was fined $300. I infer the offence was not a serious one. In 2015, following the commission of this offence, she committed offences of common assault and damage property in New South Wales for which she received 12-month s 9 Crimes (Sentence Procedure) Act 1999 (NSW) good behaviour orders.
She has not previously been imprisoned as a sentenced prisoner.
Early life
The offender was born in Toowoomba. She is a twin. She has an older brother. As a result of violence by the offender's father, her parents separated soon after the offender’s birth. Her mother then commenced a relationship with a man who committed suicide when the offender was two years old.
A psychiatrist who reported in 2008 stated that it was highly likely that the offender and her twin sister were exposed to alcohol in utero, and that exposure may have contributed to their psychological difficulties.
In any event, following her parents' separation when the offender was an infant, the offender was cared for by her grandmother and aunt. The offender's twin sister remained with the offender's mother. The offender considers that her mother "gave her away". The offender has identified maternal abandonment and rejection as the primary source of ongoing personal distress. The offender's relationship with her mother has been described as “tumultuous”. The offender's relationship with her twin sister is ambivalent. The two lived separately when they were between two and 12 years old.
When the offender was seven years old, she was subjected to abuse by a family member. Thereafter, she tried to avoid contact with males.
In 2006, the offender and her grandmother moved to the ACT where the offender's mother and second step-father were living. This step-father was a man with whom the offender's mother had formed a relationship when the offender was about six years old. Eventually, seven children were born of the relationship.
After the offender and her grandmother moved to Canberra, they argued. The offender left her grandmother's house and began to live with her mother and twin sister, and her mother’s new family. The offender's mother abused alcohol. The offender and her twin sister were often left to care for the younger children.
Against this background of extraordinary depravation, it is no surprise that from an early age the offender manifested psychological problems, and she began to abuse substances and to offend. From 2007, she had substantial involvement with the juvenile justice system. By 2008, when the offender was 13 years old, she was suffering from significant difficulties with behavioural and emotional control exacerbated by substance abuse. She was suffering from attachment problems and was considered highly vulnerable to exploitation and abuse.
Although she enjoyed school, during secondary school the offender associated with a negative peer group, began to truant and exhibited anti-social behaviour at school. On several occasions she was suspended. She left school in Year 8. Consequently, her literacy and numeracy skills are poor. Currently, the offender's reading age is less than Year 8 level. However, she is highly motivated to continue her schooling and to reach Year 10 standard, at least. She hopes to receive support from an Aboriginal organisation to assist her to complete Year 10.
In the past, the offender has qualified as a barista and worked for a short period in that role. She is interested in returning to that work. In the longer term, the offender aspires to obtain qualifications and work as a counsellor to assist others who have experienced difficulties.
Substance abuse
At 12 years of age, the offender began to abuse substances. At that stage, it was alcohol and cannabis. At 13 years of age she was offered methamphetamine. She used that substance until she was 16 years old. Between 16 and 19 years of age, when she was caring for her two young children, she stopped using methamphetamine.
However, when she was 19 years old she and her then partner, the father of her children, recommenced using methamphetamine. For some months prior to the offence, the offender was using methamphetamine on a daily basis.
The offender is committed to engaging in treatment for substance abuse and has engaged with Alcoholics Anonymous while in prison. One of the critical motivating factors is that the offender wants to be in a position to care for her children, including the baby that she is expecting in October.
Personal relationships
The offender has children aged two and four years, and a baby aged three months. The children reside in Dubbo, where they are cared for in a kinship arrangement. The offender is to deliver her fourth child in October of this year.
It is desirable that the offender be able to care for her new baby, as well as her other children. History has shown that the offender is able to refrain from drug use for a significant period while she is responsible for the care of young children. If she is committed to caring for her new baby, and to working towards caring for her other children, that will motivate the offender to remain drug free.
The offender was in a relationship with the father of her children for five years. The relationship was characterised by domestic violence and substance abuse. In the past, the offender has been ambivalent about this relationship despite the associated violence; the offender’s former partner is one of the few people to whom the offender has been able to develop an attachment.
Fortunately, she now wishes to make a clean break from the relationship. Luckily, the offender's commitment to breaking from her former partner is supported by the fact that he is now in custody in New South Wales and will remain there for the next 18 months. I am informed that there is a warrant for his arrest in the ACT. If the offender remains in the ACT, she should succeed in remaining away from her former partner for a very significant period of time.
Mental health
A reporting psychologist assessed the offender as suffering from post-traumatic stress disorder (in remission), recurrent major depressive disorder with moderate symptoms, substance dependence (referring to alcohol, cannabis and methamphetamine, in partial remission) and borderline personality disorder.
Borderline personality disorder or complex trauma is characterised by impulsivity and reckless behaviour. It can lead to difficulty with emotional regulation and forming meaningful relationships. The psychologist has recommended that the offender participate in a dialectical behaviour therapy group or SCHEMA therapy, and has stated that the offender appears to be strongly motivated to engage in treatment.
While the offender denies recollection of the offence, she accepts responsibility. She is ashamed and remorseful about her involvement.
The offender's short term goal is to be released from custody to Karinya House, an establishment operated by a non-governmental organisation which is designed to provide safe housing for women and their babies upon their release from custody. The offender has been in contact with this organisation and will pursue her enquiries.
I accept that the offender has significant insight into her current problems and an understanding of what she needs to do to address them. As her counsel submitted, she demonstrates the hallmarks of someone who is in a very good position to start the rehabilitation process.
Sentencing considerations
In sentencing the offender, I have regard to the considerations in s 33 of the Sentencing Act. I believe I have referred to the relevant considerations. I am aware of the New South Wales guideline judgment in R v Henry (1999) 46 NSWLR 346, although that is not a guideline judgment in this jurisdiction. It concerns a typical case which is somewhat different to the case that I am considering, and Henry applies to an offence where the maximum penalty was less than that applicable in the current case. Nevertheless, it provides a useful framework within which to consider aggravated robbery matters in this jurisdiction.
Sentencing purposes are set out in s 7 of the Sentencing Act. Most of those purposes are relevant to the current sentencing exercise, including the purposes of general deterrence, punishment, accountability and denunciation.
However, because the offender is a young offender with many issues and the personal resources to address them, it is appropriate that rehabilitation should be a dominant sentencing purpose. The offender seems to be an intelligent young person with considerable insight, and she has taken the first step towards rehabilitation by acknowledging her problems and thinking about possible solutions. Nevertheless, the road to rehabilitation will be an uncertain one, no doubt fraught with difficulties.
I consider that a period of full-time imprisonment is essential to recognise sentencing purposes such as general deterrence, punishment, accountability and denunciation, but because of the high level of importance which I attach to rehabilitation, I consider that most of the sentence should be suspended to enable the offender to attempt rehabilitation under close supervision.
Sentence
The offender is convicted.
I would have imposed a sentence of three years' imprisonment, but I have deducted 25%, or nine months, because of the plea of guilty. The offender is sentenced to imprisonment for two years and three months from 8 March 2016 to 7 June 2018.
The first six months from 8 March 2016 to 7 September 2016 is to be served by way of full-time imprisonment.
I make a suspended sentence order suspending the remainder of the sentence from 7 September 2016, and an associated one year-nine-month good behaviour order. The good behaviour order is subject to the additional conditions that:
(a)The offender reports to Corrective Services within one working day of release, the report to be in person, but it may be by telephone if the offender is prevented from reporting in person because of child-birth;
(b)The offender is to reside at Karinya House or such other place as has the prior approval of Corrective Services;
(c)The offender is to submit to the supervision of Corrective Services, including undertaking all treatment and other programs recommended by Corrective Services and submitting to all drug test requests.
(d)The period of supervision is to be at least 12 months from the release date. Thereafter, Corrective Services may terminate supervision if they consider it appropriate to do so.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 26 July 2016 |
Note: Paragraph [28] and parts of paragraphs [35] and [38] have been redacted to comply with s 712A of the Criminal Code 2002 (ACT).
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