R v Murray (No 3)
[2019] ACTSC 328
•22 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Murray (No 3) |
Citation: | [2019] ACTSC 328 |
Hearing Dates: | 20 September 2019; 22 November 2019 |
DecisionDate: | 22 November 2019 |
Before: | Elkaim J |
Decision: | See [13] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – second breach of good behaviour order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 110 |
Cases Cited: | R v Murray [2016] ACTSC 173 |
Parties: | The Queen (Crown) Ricki Rose Murray (Offender) |
Representation: | Counsel M Lucero (Crown) J Campbell (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 108 of 2016 |
ELKAIM J:
This matter is before the court today because of the breach of a good behaviour order. This is the second time I am dealing with a breach.
On 13 July 2016 the offender was sentenced by Murrell CJ (R v Murray [2016] ACTSC 173). The Chief Justice imposed a period of two years and three months imprisonment, six months of which were to be served by way of full time imprisonment. The sentence was suspended from 7 September 2016, conditional on the offender entering into an associated one year nine-month good behaviour order, with conditions. The offence she had committed was aggravated robbery contrary to s 310(a) of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $375,000, 25 years imprisonment or both.
On 18 September 2017 I dealt with this offender for a breach of that good behaviour order. The breach was admitted. The substance of the breach was that she had failed to comply with her core good behaviour obligations, as well as two additional conditions, being:
1. A probation condition to accept the supervision of ACT Corrective Services for a period of 12 months and to obey all reasonable directions of ACT Corrective services; and
2. To reside at Karinya House or other accommodation with the prior approval of ACT Corrective Services.
On that occasion I accepted the offender’s submissions that the breaches occurred as a result of some particularly distressing personal circumstances, including the removal of the offender’s child and her difficult pregnancy at the time. I cancelled the good behaviour order and sentenced the offender to 2 years and 3 months imprisonment, suspended with immediate effect. The offender was also directed to comply with her good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of 18 months.
The histories and comments made by the Chief Justice in July 2016 and by me in September 2017 should be read as part of these sentencing remarks.
On 20 September 2019 I ordered a pre-sentence report and a forensic mental health report. These documents describe and highlight the overwhelmingly disadvantaged upbringing and path through life that this offender has endured. The suicide of her partner last year has added to her woes as has the necessity for her to take part in the forthcoming coronial inquest. The forensic mental health report has this conclusion:
Ms Murray presents with numerous factors relating to her mental illness. This is confounded by multiple other factors including adverse childhood experiences, neglect, trauma, recent loss, personality vulnerabilities and illicit substance use. At the time of this assessment, Ms Murray’s mental illness is best characterised as per DSM 5 criteria for major depressive disorder, stimulant use disorder, cannabis use disorder and alcohol use disorder (presently in remission in a controlled environment).
Ms Murray also displays personality vulnerabilities which include both borderline and antisocial personality traits. Ms Murray reports a history of auditory hallucinations and paranoid thoughts, and it appears that these are best understood as transient stress-related paranoid ideation or severe dissociative symptoms as part of her borderline personality features, rather than as an independent psychotic disorder.
What is apparent in this case, significantly more than in most cases, is that Ms Murray’s personal circumstances must play a significant role in her sentencing. It is particularly notable that she has stopped taking drugs while in custody. It is equally clear that putting her into the community, either through a suspended sentence or a good behaviour order regime is counterproductive. As stated by her learned counsel, it is “setting her up for failure”.
The breach on this occasion is admitted. The details of the breach are set out in the affidavit of Adam O’Day affirmed 11 October 2018. In summary, the offender has failed to comply with her probation condition to accept the supervision of ACT Corrective Services and obey all reasonable directions for a period of 18 months.
Since June 2018 the offender’s compliance with supervision has either been haphazard or simply non-existent. There have however been periods when the offender has been in custody for unrelated Magistrates Court matters. From 3 November 2018 she was detained in a psychiatric hospital. I granted her bail on 31 January 2019.
I note that the offender served, by way of full-time custody on the original sentence, a period of 7 months and 23 days. Since the imposition of the sentence on 18 September 2017, she has spent 2 months and 18 days in custody.
I think the only feasible approach to this matter is to re-sentence the offender and impose a full-time custody order. It is to be recalled that the original aggravated robbery was a particularly serious offence. Her counsel conceded that custody was appropriate.
My original inclination was to impose a period of full-time custody of 15 months with a non-parole period of 12 months. Upon analysis however this non-parole period would amount to 80% of the overall sentence. This percentage is not appropriate where considerations of rehabilitation are important. I intend to make the non-parole period 10 months and 2 weeks. Although, at about 70%, this may still seem relatively high I think the circumstances of this case justify this approach, in that it will probably be in aid of the offender’s rehabilitation to spend a longer than usual time in custody. I am however primarily motivated by my assessment of the minimum time that the offender should spend in custody.
I make the following orders:
Pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT):
(i)The good behaviour order imposed by myself on 18 September 2017 is cancelled.
(ii)In respect of the offence of aggravated robbery (CC 15/5333), the offender is re-sentenced to 15 months’ imprisonment, commencing 4 September 2019 and expiring on 3 December 2020.
(iii)I set a non-parole period of 10 months and 14 days, commencing 4 September 2019 and expiring on 17 July 2020.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 22 November 2019 |
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