R v Murray
[2014] ACTSC 88
•4 February 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v MURRAY |
Medium Neutral Citation: | [2014] ACTSC 88 |
Hearing Date: | 4 February 2014 |
Decision Date: | 4 February 2014 |
Before: | Penfold J |
Category: | Sentence |
Catchwords: | SENTENCE – Breach of good behaviour order constituted by failing to comply with conditions of good behaviour order made in suspending sentence for offences committed in November 2010 – failure to comply involved inadequate participation in Family Violence Program as directed by Corrective Services supervisor – no offending since November 2010 offences – offender re-sentenced. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of good behaviour order made in connection with suspended sentence – offender re-sentenced. |
Legislation cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 110 |
Decision: | 1. The good behaviour order made on 27 April 2012 is cancelled under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT). 2. The security under the cancelled good behaviour order is not to be enforced. 3. The offender is re-sentenced as follows: · for contravention of a protection order on 26 November 2010, to 18 months imprisonment; · for contravention of a protection order on 30 November 2010, to 12 months imprisonment; the second sentence accumulated so as to add four months to the first sentence and giving a total sentence of 22 months. 4. The sentence is backdated to 5 December 2012 and suspended with immediate effect. 5. The offender is ordered to sign a good behaviour undertaking for 18 months with security of $1,000. |
Parties: | The Queen ( Crown) Ian Murray ( Offender) |
File Number: | SCC No. 63 of 2011 |
On 27 April 2012, I sentenced Ian Murray, for four offences of contravening a protection order, to imprisonment for a period of 28 months, to be suspended after 20 months. In connection with the suspension of the two sentences not completed by the end of the 20 months, I made a good behaviour order to take effect on 9 August 2012 and to run for two years, with security of $1,000 and conditions requiring Mr Murray to accept Corrective Services supervision and to comply with his supervisor’s reasonable directions.
The protection orders concerned were made as a result of Mr Murray’s action after the termination of a brief relationship between him and the complainant. In summary, Mr Murray did not appear to accept that his former partner did not wish to continue the relationship, and seemed to believe that he had some continuing right to influence her behaviour.
In sentencing Mr Murray, I noted that these were serious examples of the offence, not so much because of their impact on the complainant and her daughters, but:
... because of what the incidents themselves revealed about Mr Murray’s attitude to [the complainant] and their relationship, an attitude which exemplifies the kind of circumstances that make protection orders necessary.
Mr Murray was released in August 2012, but in May 2013 I issued a summons for him to appear in court for a breach of his good behaviour obligations constituted by failing to accept Corrective Services supervision and failing to obey reasonable directions of his supervisor.
Mr Murray appeared on 12 July 2013 and the matter was adjourned until 2 August. On that day I found the breach proven, set new bail conditions specifically requiring Mr Murray to take part in the Family Violence Cognitive Self Change Program, and adjourned the matter to 10 December 2013.
On 13 August 2013 Mr Murray appeared before Refshauge J on a breach of bail constituted by failing to reside at the address specified in his bail conditions. The bail conditions were amended to show Mr Murray’s new address, and Mr Murray was released.
On 10 December 2013, Mr Murray indicated that he had attended some sessions of the Family Violence Program. I ordered a bail progress report, and adjourned the matter until 4 February this year.
On 29 January this year, Mr Murray appeared before Burns J on a breach of bail, this time constituted by a failure to attend a supervision appointment scheduled for 16 January 2014 and notified to Mr Murray by letter from Corrective Services addressed to his last known address, being the address specified in his new bail conditions on 13 August 2013. Mr Murray was again granted bail.
The bail progress report ordered in December 2013 provided the following report about Mr Murray’s participation in the Family Violence Program:
Mr Murray entered the Family Violence Cognitive Self Change Program on 24 September 2013 and has attended on most occasions. During this time, Mr Murray’s participation has been for the most part, poor and he has been disruptive, argumentative and oppositional. Mr Murray was denied entry into the program on 29 October 2013 and 27 November 2013 due to his lateness and was sent a warning letter.
On the 14 January 2014 and 21 January 2014 Mr Murray failed to attend the Family Violence Cognitive Self Change Program and failed to notify of his inability to do so.
In a report dated today, Corrective Services provided an addendum to that earlier report, indicating that Mr Murray had attended Corrective Services on 29 January, apparently after having been released on bail, and had expressed a variety of complaints about the contents of the Family Violence Program and about Corrective Services’ expectations in relation to attendance. The report concluded:
It would appear that Mr Murray is actively refusing to participate in the Family Violence Cognitive Self Change Program. His attendance at the program has been characterised by poor behaviour and his oppositional attitude.
When sentencing Mr Murray in 2012, I noted a fundamental lack of understanding on Mr Murray’s part about both the requirements of the criminal law and the proper way to conduct relationships with other people, saying this:
Mr Murray provided a letter to the court expressing regret for the actions the subject of the charges. I am sure that Mr Murray meant well in writing this letter, but unfortunately, like Mr Murray’s phone calls to [the complainant], it seems to reveal both a fundamental lack of insight, and misconceptions about relationships of the kinds to which I have already alluded.
The letter says that Mr Murray believed the relationship was intense, and was confused and surprised that [the complainant] had sought the protection order, feeling that it might have been an overreaction to the death of her husband. Mr Murray also suggests that outside influences had contributed to the end of the relationship, but concludes with a paragraph attributing the failed relationship to flaws in [the complainant]arising from unfortunate experiences earlier in her life. He notes, in effect, that he will be more aware of the dangers of such relationships in the future. What he claims to have learnt from those offences is to pay more attention in future to what he calls the “tell-tale warning lights” that may show that a prospective partner is psychologically vulnerable.
In effect, Mr Murray seems to believe that [the complainant]did not really mean to terminate their relationship or to take out a protection order and presumably, by implication, that this justified him ignoring the order, even despite her routine reporting of breaches to the police. He then goes on to claim that the failure of the relationship was entirely due to [the complainant’s]frailties, and that his only fault was not to recognise those frailties in time.
This is, in my view, nonsense. It is not unknown for people to take out protection orders and then to permit breaches of them in certain circumstances without complaint, but on the evidence before me this is not such a case. Rather, it is a case of a rejected partner simply refusing to take no for an answer. This analysis is consistent with my interpretation of Mr Murray’s comments as revealing a belief that a party to a relationship has a right, which continues even after the end of the relationship, to insist on particular behaviour from the other party. It was also consistent with Mr Murray’s previous history of breaching domestic violence orders and committing stalking offences.
In these circumstances, it comes as no surprise that Mr Murray’s participation in the Family Violence Cognitive Self Change Program is described by Corrective Services as “disruptive, argumentative and oppositional”. On the other hand, I assume that a cognitive self change program is aimed at providing participants with the tools to manage themselves within the community in a way which enables them to avoid offending and its consequences, rather than simply to brainwash them. That is, an order to participate in such a program requires an offender to listen to rather than to accept the information that is provided to him. An offender who chooses to reject the information he is offered takes the risk of further offending, but is not to be punished for his lack of faith.
There is also, however, another problem with Mr Murray’s attendance at the Family Violence Program. He says that when he initially agreed to undertake the program the sessions were scheduled to run from 4.30 pm, but that since then, sessions have been re-scheduled to start at 4.00 pm. Mr Murray has found it difficult to attend at 4.00 pm because of his work commitments, and says that this is why he was late on the two occasions he was denied entry into the program. Corrective Services, in the 4 February 2014 addendum, said:
[Mr Murray’s] expectation that this Service changed commencement and appointment times to suit his requirements is unreasonable and indicative of someone who is unwilling to comply with Court based orders.
While I understand that Corrective Services are no doubt working with limited resources, it does seem to me unsatisfactory, if it is indeed the case, that they are unable to conduct programs at times that support their client’s participation in the workforce, given how important employment is to the rehabilitation of offenders.
In this case, despite Mr Murray’s apparent scepticism about what is offered by the Family Violence Program, I understand that he has not so far re-offended since late 2010 when he committed the offences for which I sentenced him in 2012. For that reason, and noting that he has made some efforts to participate in the Family Violence Program, I see no basis for imposing the outstanding sentence as a result of the breaches of the good behaviour order constituted by his response to supervision. Furthermore, since participation in the Family Violence Program was not something I had specified in the original sentence, but was included in the bail conditions on the advice of Corrective Services, since the 2010 offences did not directly involve family violence, and since it seems that Corrective Services are unable to provide this program in a way that is compatible with Mr Murray maintaining his employment, I propose to take a different approach to the outstanding term of Mr Murray’s prison sentence.
Accordingly, having already found the breach of the good behaviour order proved, I cancel the good behaviour order under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) and order that the security under that good behaviour order is not to be enforced.
Mr Murray, I should probably have asked you to stand a minute ago, but if you wouldn’t mind standing now.
Next, I re‑sentence you on the two outstanding offences as follows:
(a)for the offence committed on 26 November 2010, I sentence you to 18 months imprisonment;
(b)for the offence committed on 30 November 2010, you are sentenced to 12 months imprisonment, accumulated so as to add four months to the first sentence;
giving a total sentence of 22 months.
That sentence is backdated to 5 December 2012 to take account of the time you’ve already served in custody on the two current offences, and will be immediately suspended, leaving eight months still outstanding on your sentence.
I now order you to sign a new undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act for 18 months, again, with security in the amount of $1,000, but the good behaviour order is to be subject only to the core conditions, in particular, there will be no supervision requirement. You will be given a written copy of the good behaviour order and it will be explained to you by the court officials, but I am sure you understand, Mr Murray, it means that for the next 18 months you need to keep out of trouble.
MR MURRAY: Yes, Ma’am.
HER HONOUR: If you commit another offence during that time, you may find yourself back before this court to be re‑sentenced yet again for these offences as well as possibly losing your $1,000. As I have already indicated, Mr Murray, I’ve offered you help from Corrective Services, you don’t seem keen to accept it, and for all sorts of reasons it hasn’t worked out, but what that means is: from here on, you’re on your own.
MR MURRAY: Yes, Ma’am.
HER HONOUR: If you re-offend in the next 18 months, having rejected that help with your rehabilitation, then I will throw the book at you.
MR MURRAY: Yes, Ma’am.
HER HONOUR: Do you understand that?
MR MURRAY: Yes, Ma’am.
HER HONOUR: All right. You may sit down.
| I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: | |
Representation: | Counsel: Mr S Drumgold ( Crown) In person ( Offender) |
| Solicitors: ACT Director of Public Prosecutions ( Crown) In person ( Offender) |
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