R v William John Murray

[2008] NSWDC 285

CITATION:	R v William John Murray [2008] NSWDC 285
HEARING DATE(S):	5 December 2008
JUDGMENT DATE:	8 December 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Hulme SC DCJ
DECISION:	Total sentence of 3 years 3 months with a non-parole component of 1 year 9 months
CATCHWORDS:	CRIMINAL LAW - Sentence - Resist officer in execution of duty - Assault officer in execution of duty - Attempt to use offensive weapon with intent to prevent lawful apprehension - Escape from lawful custody
LEGISLATION CITED:	Bail Act, 1978 Crimes Act 1900
CASES CITED:	R v William John Murray [2008] NSWDC 226 R v Murray [2003] NSWCCA 116 Sharpe v R [2006] NSWCCA 255 R v Bloomfield (1998) 44 NSWLR 734
PARTIES:	R v William John Murray
FILE NUMBER(S):	08/11/0281
COUNSEL:	Ms S Dowling (Crown) Mr P Young SC (Offender)

JUDGMENT
1 His Honour: On 8 October 2008 the offender, William John MURRAY, was arraigned before me on an indictment alleging that he committed 2 offences of resisting a police officer in the execution of the officer’s duty, 2 offences of assaulting a police officer in the execution of the officer’s duty, 1 offence of attempting to use an offensive weapon with intent to prevent the lawful apprehension of himself and 1 offence of escaping from lawful custody.

2 He entered pleas of not guilty to each count. A trial then proceeded before me with the offender having elected to be tried without a jury. On 17 October 2008 I returned verdicts of guilty on each count: R v William John Murray [2008] NSWDC 226.

3 The first four offences are against s.58 Crimes Act 1900 for which there is prescribed a maximum penalty of imprisonment for 5 years. The offence of attempting to use an offensive weapon to prevent lawful apprehension is against s.33B(1)(a) of the same Act and the maximum penalty prescribed is one of imprisonment for 12 years. The offence of escaping from lawful custody is an offence under the Common Law.

FACTS
4 The facts of the matter, very briefly, are that two police officers, Plainclothes Senior Constable Owen and Plainclothes Constable Evans sought to arrest the offender in Chippen Street, Chippendale at about 8pm on 26 January 2007 because they genuinely, although mistakenly, believed that he was in breach of bail conditions. They were purporting to exercise the power of arrest provided in s.50 Bail Act 1978.

5 A violent struggle ensued almost immediately the officers informed the offender that he was under arrest. This involved the offender resisting and assaulting both officers. At one point the offender endeavoured to take the pistol of one of the officers in order to use it to prevent his apprehension. He did not manage to obtain complete control of the pistol, however, and that is why count 5 was charged as an “attempt”. In the end, the offender managed to break free from the officers and run, hence the charge of escaping from lawful custody.

6 The violence involved in the offender’s struggle with the officers is apparent from the fact that the officers sprayed him twice with capsicum spray and struck him with a baton a number of times but their combined strength, and the use of those implements, were no match for the offender. He ran off, apparently unscathed, leaving them, with all their energy spent, in his wake.

SUBJECTIVE FEATURES
7 The offender was born in 1980 and he was 26 at the time of the offences.

8 He has an extensive criminal history which commenced in the Children’s Court when he was 16. His convictions as an adult include matters of assaulting and resisting police and using an offensive weapon to prevent apprehension. The latter offence involved him driving a motor vehicle at a number of police officers who were endeavouring to arrest him for a matter or robbery in company. I note that when he was sentenced for those matters there was a finding of special circumstances resulting in a substantial reduction in the non-parole period. The total sentence was one of 4 years 9 months with the non-parole period 2 years 9 months.

9 On an appeal against the severity of the sentence, Levine J in the Court of Criminal Appeal (R v Murray [2003] NSWCCA 116) said this:

[12] Judge Kinchington was sensitive to the subjective or personal matters involving the applicant and acknowledged that the applicant had shown a genuine resolve to overcome the drug habit that played a major role in the crimes. He took into account how young he was, the broken and difficult home life and upbringing, the illiteracy, the incomplete education and all those matters which reflect the severe disadvantages of the applicant as have been referred to from time to time in other cases in this Court.

[13] His Honour was impressed by the evidence given by his grandmother, Mrs Murray. His Honour found special circumstances and varied the proportion of the non-parole period significantly. He discounted the sentence by 25 per cent because of the applicant’s early plea.

[14] As I have said, he took into account properly so, and in a fair and principled way, the strong subjective material including the applicant’s written apology to the victim. Equally importantly, his Honour gave due weight to the applicant’s rehabilitation prospects but felt in the end constrained to impose the sentences he did because of how serious the offences with which he was concerned were, all of them.

10 As to those “rehabilitation prospects”, I note that following the offender’s release from custody in respect of that sentence on 1 June 2004 it was only some 4½ months before he was charged with a variety of offences, including another offence of using an offensive weapon to prevent lawful detention. He received a sentence of 12 months imprisonment for that. With subsequent sentences that were imposed, he was released in July 2006. 2 months later he was charged with a break and enter offence, but I have been told by counsel that this was a cold hit DNA matter, with the offence having occurred in 2004. Nevertheless, the fact that he was on bail for that matter at the time of committing the offences with which I am concerned is a serious aggravating feature.

11 The offender was arrested for the present offences on 5 March 2007. He remained in custody until released on bail on 9 August 2007. For 5 months of that period he was serving the sentence of imprisonment he received for the break and enter offence. Accordingly, only 5 days of that period is solely referable to the present matter and so the sentence I impose should be back-dated to 12 October 2007, 5 days before he went into custody following the verdicts of guilty.

12 I have before me a report by Mr W John Taylor, psychologist, as well as 5 testimonials. I have had regard to the detail of the offender’s background and upbringing that are set out in these documents. It is too lengthy to recite here but the description given in the judgment of Levine J I referred to earlier is apt. Of perhaps greater importance is what the offender had been doing with his life in more recent times.

13 Drugs and alcohol have been a problem for him for a number of years but I note in the report of Mr Taylor it is said that alcohol abuse became a problem in 2007, seemingly after the present offences were committed. Heroin use is reported to have ceased in December 2006 and the offender is presently on a methadone program. Many of the offences on the criminal record are said to have arisen out of drug use and association with inappropriate peers in the Redfern area.

14 Mr Taylor administered the usual range of psychometric tests. One of them, the “Criminal Sentiments Scale – Modified” indicated that the offender:

“has feelings of ambivalence toward authority figures but does not appear to be alienated from them. He tends to view people in authority as being unfair and domineering. He has an above average tolerance for legal violations. He does not admit to identifying with antisocial attitudes”.

15 A number of events affecting the offender’s family during his younger years may tend to explain his view of people in authority. It may well be the explanation for the offender behaving the way in which he did on 26 January 2007. His response to the two officers was, I accept, influenced by the recent history of his interactions with police. There was evidence in the trial that he was stopped and searched for drugs on 7 December 2006 but no drugs were found. On 18 December 2006 police attempted to arrest him because they thought he was in breach of bail conditions. He ran away. It was subsequently realised that he was not in fact in breach of bail. On 20 December 2006 he handed himself in and was charged with escaping from police two days earlier. He was released on bail. On 22 December 2006 there was an incident in Cleveland Street, Redfern resulting in him being arrested and charged with self administration of drugs and resisting police. He was released on bail. The charges were subsequently dismissed. On 2 January 2007 he was stopped and searched. A CNI check informed police that he was in breach of bail so he was arrested and charged. It was subsequently realised that he was not in fact in breach of bail.

16 As I indicated earlier when dealing with the facts, the two officers who were endeavouring to arrest the offender on 26 January 2007 did so because they had been told by police radio that he was in breach of his bail. He was not. This does not excuse his behaviour and did not provide him with any right to act in the way he did. It does, however, provide something of an explanation for his defiance and aggression.

17 The support that the offender has, not only by those whose testimonials are before me but many others as well is rather astonishing for somebody with his history. His 4 year relationship with Ms Svetlana Konakov, who he has known since childhood, is very positive. She describes the period between his release from custody in August 2007 and returning to custody in October last as one of increasing stability in his life. He was in stable accommodation. He attempted to complete a Youth Work course at Ultimo TAFE but by the time it came to submit written assignments his problems with literacy forced him to discontinue. Shortly before returning to custody he had been accepted into a literacy course at Petersham TAFE. He had begun an outreach course in horticulture and was preparing to obtain his driver’s licence. He and Ms Konakov were accredited volunteers at the World Youth Day events in Sydney. They had become active members at their local church. Ms Konakov says that before he returned to custody the offender spent most of his time with her, encouraging and supporting her with her university studies and spending time with family. She confirms his commitment to the methadone program.

18 In addition to a statement of continuing support for the offender, Ms Konakov concludes her testimonial with the following:

“Over the years that I spent with William I have seen him progress from a person who had no support, no stable home, very little problem solving skills and used drugs as a way of coping with his pain, to a man who asks for assistance, has developed a network of people who support him and has begun to trust people enough to talk about some of the traumatic experiences that he has had to deal with in his life. William has also taken steps towards educating himself in order to find a job so that he can be a contributing member of society”.

19 Ms Konakov might be thought to be biased in her opinions because of her relationship with the offender. However, there is independent support for what she says in the testimonial from Ms Sally Ringrose of the Community Restorative Centre Accommodation Service. It includes this:

“In my experience of working with this client group, rarely have I seen someone come so far in such a relatively short time. William has done this by his own desire and commitment to change, recognising the value of support from others, forming positive relationships and taking responsibility for himself. The Accommodation Service staff view William with high regard as a client for the progress he has made”.

20 Whilst a review of the offender’s criminal history, particularly the repetitive offending against police officers, paints a very negative picture, the other material before me concerning the progress the offender has made in the last year or so is quite the opposite. Mr Taylor expresses the opinion that “if (the offender) is able to maintain his motivation for change he is considered to have quite good prospects for rehabilitation”. The “if” is the qualification but I am satisfied that his chances for rehabilitation are quite promising.

21 It was not submitted on the offender’s behalf that I should find he is remorseful and that was realistic. Usually I am reluctant to make a finding in an offender’s favour that he or she has good rehabilitation prospects if there is no finding of remorsefulness but in the somewhat unusual circumstances of this case I am prepared to do so.

OBJECTIVE SERIOUSNESS OF THE OFFENCES

22 I cannot, however, allow favourable subjective circumstances to dominate my assessment of the appropriate sentence. The first and foremost consideration is the objective seriousness of the offences.

23 In Sharpe v R [2006] NSWCCA 255, Johnson J, with whom McClellan CJ at CL and Latham J agreed, said this about offences against s.33B:

[70] This Court has observed that offences against s.33B are to be regarded extremely seriously: R v Hamilton (1993) 66 A Crim R 575 at 581; R v Barton (2001) 121 A Crim R 185 at 191. These observations have been made in the context of s.33B offences committed against police officers. In Hamilton , Gleeson CJ observed at 581 that it was incumbent upon the Court in dealing with offences of this nature to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task.

…

[72] General deterrence must play a significant role in the sentencing of offenders for offences contrary to s.33B: R v Perez (NSWCCA, Gleeson CJ, Kirby P and Campbell J, 11 December 1991, BC9101351 at page 21).

24 I am satisfied that the offences of assaulting and resisting the two officers are in the middle of the range of objective seriousness for offences of their type. There was no significant injury to either officer but that is not a relevant consideration as if there was, a more serious offence would have been made out. It was, as I described earlier, quite a violent and sustained assault and resistance that the offender brought upon the officers. However, a contrast has to be made with a situation in which the person sought to be arrested had in fact committed an offence, more so if it was a serious offence.

25 The offence of attempting to use a weapon with intent to prevent lawful apprehension is below the middle of the range, but not by a great margin. The type of weapon is something that elevates its seriousness – a self-loading pistol with 15 live rounds in it. There was no safety mechanism (although it is doubtful whether the offender knew that). It was in a position where, if discharged, it could have caused catastrophic injury or death to Constable Evans. However, the fact that the offender was unsuccessful in his attempt, and the fact that his attempt was quelled fairly quickly, are matters that reduce its seriousness. This is not to ignore, however, that the experience for each of the officers, but most particularly Constable Evans must have been quite terrifying. Indeed, I referred in my judgment of 17 October 2008 to how he broke down during the course of his evidence from reliving the ordeal.

26 Section 33B includes offences of using a weapon as well as attempting to use one and possessing one, with intent to avoid apprehension. The actual use of a weapon would generally be regarded as objectively more serious than attempting to use one. Further, I am not in a position to conclude whether the offender’s attempt was with the intention of actually discharging the weapon, as opposed to using possession of it to dissuade the police from continuing in their attempt to arrest him. It may well have been, but to take that into account as an aggravating factor I would need to be satisfied beyond reasonable doubt. The evidence is not such as to enable me to be satisfied to that standard. The potential risk to public safety is something I have also borne in mind. The offence was committed in a public street at 8pm on a public holiday and there were a number of members of the public in the vicinity. I have also borne in mind that the offence was spontaneous as opposed to premeditated. However, it must be recognised that most offences of this type are committed spontaneously.

27 As for the offence of escape, it is a fairly unremarkable example of its type. As I indicated earlier, it is no excuse that the officers were mistaken in their belief that the offender should be taken into custody. However I feel that it is only fair to bear this in mind when assessing the sentence for this offence. It would be worse if it was the escape of an offender who had in fact committed an offence, particularly if it was a serious offence.

GENERAL SENTENCING CONSIDERATIONS

28 The statistics maintained by the Judicial Commission of NSW indicate that for offences against s.33B of using etc an offensive weapon to prevent lawful apprehension in the period January 2001 to December 2007, 80% of the 132 offenders in the database received a sentence of full-time imprisonment. Of those, 80% of them received a sentence higher than 12 months and less than or equal to 5 years. The median sentence was more than 2 years 6 months up to 3 years.

29 For an offence of assaulting etc an officer in the execution of the officers duty, the statistics indicate that in the same period, 41% of the 34 offenders in the database received a full-time custodial sentence. With one exception, all those sentences were 2 years or less, with the median falling in the range of greater than 12 months up to 18 months.

30 For the Common Law offence of escaping from lawful custody the database of sentencing statistics is too small to be of any use.

31 I acknowledge the limited utility that sentencing statistics can have in assessing the appropriate sentence in an individual case: R v Bloomfield (1998) 44 NSWLR 734. The variation in factual circumstances, as well as personal circumstances, is not disclosed in the material apart from some very broad information, such as the nature of the plea and whether there was a prior record.

32 I have mentioned the importance of general deterrence. Personal deterrence must also be a factor in the assessment of sentence in this case. This is particularly so because of the history the offender has of assaulting and resisting police officers and using weapons to avoid apprehension. No matter what has motivated the offender in the past to behave with defiance towards police, the message must be sent to him that such behaviour will not be tolerated, no matter what the circumstances.

33 After having determined the sentences that are appropriate for each of the offences I have considered the question of concurrence or accumulation. I have determined this issue with regard to the principle of totality. It is appropriate that the sentences for assaulting and resisting the individual officers be concurrent but there be a degree of accumulation of the sentences relating to each officer. This is so that the additional criminality involved in the fact that there were two victim officers is recognised. The sentence for the s.33B offence will be further accumulated. The sentence for the escape will be a relatively short fixed term commencing first with the other sentences partially accumulated upon it.

34 I am satisfied there are special circumstances for reducing the proportion of the overall sentence represented by the non-parole component. There are because of the accumulation of sentences but particularly because of the progress towards rehabilitation the offender has made to date and will, I trust, continue if he is assisted by a longer period of parole supervision. Indeed, I have endeavoured to formulate sentences that appropriately reflect the objective seriousness of the offences, balancing them with a reduction of the non-parole component as much as possible in order to promote the offender’s rehabilitation.

SENTENCE

35 On each: Convicted

36 Escape lawful custody: Sentence to imprisonment for a fixed term of 6 months commencing 12 October 2008 and concluding 11 April 2009.

37 Resist and assault Plainclothes Senior Constable Owen: On each, sentenced to imprisonment comprising a non-parole period of 12 months and a balance of the term of the sentence of 6 months. The sentences will commence on 12 January 2009. The non-parole periods expire on 11 January 2010.

38 Resist and assault Plainclothes Constable Evans: On each, sentenced to imprisonment comprising a non-parole period of 12 months and a balance of the term of the sentence of 6 months. The sentences will commence on 12 April, 2009. The non-parole periods expire on 11 April 2010.

39 Attempt to use weapon to prevent lawful apprehension: Sentenced to imprisonment comprising a non-parole period of 12 months and a balance of the term of the sentence of 1 year 6 months. The sentence will commence on 12 July 2009. I direct the release of the offender on parole on the expiration of the non-parole period on 11 July 2010. Parole will be subject to supervision by the Probation and Parole Service.

40 That is a total sentence of 3 years 3 months with a non-parole component of 1 year 9 months.

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