The Queen v Ian Murray
[2012] ACTSC 54
•22 March 2012
THE QUEEN v IAN MURRAY
[2012] ACTSC 54 (22 March 2012)
CRIMINAL LAW – jurisdiction, practice and procedure – bail – whether period of remand likely to exceed the sentence imposed – bail refused.
CRIMINAL LAW – jurisdiction, practice and procedure – bail – change in circumstances – whether plea of guilty amounted to change in circumstances – s 20C of the Bail Act 1992 (ACT) – bail refused.
Bail Act 1992 (ACT), s 20C, 22
Dunstan v Director of Public Prosecutions (1999) 92 FCR 168
Arman v Wall [2008] ACTSC 61
R v Roberts (Unreported, Supreme Court of the ACT, Higgins CJ, 14 September 2010)
R v Taylor (Unreported, Supreme Court of the ACT, Nield AJ, 25 February 2010)
Mill v The Queen (1988) 166 CLR 59
Burton v The Queen (1974) 3 ACTR 77
EX TEMPORE JUDGMENT
No. SCC 63 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 22 March 2012
IN THE SUPREME COURT OF THE )
) No. SCC 63 of 2011
AUSTRALIAN CAPITAL TERRITORY )
R
V
IAN MURRAY
ORDER
Judge: Refshauge J
Date: 22 March 2012
Place: Canberra
THE COURT ORDERS THAT:
The application for bail dated 13 March 2012 is refused.
On 9 August 2010, the Magistrates Court made a Personal Protection Order for which the applicant for bail, Ian Murray, was the respondent. That Protection Order was made to protect the complainant from certain acts of Mr Murray, namely, that he was prohibited from being on the premises where the complainant resided; from being on premises in Queanbeyan where the complainant worked; from being within 100 metres of the complainant except at court; and from contacting or causing another person to contact the complainant, except through a solicitor.
On 6 November 2010, Mr Murray breached that Protection Order by telephoning the complainant and speaking to her. He continued to speak to her notwithstanding that she reminded him that he was breaching the Order. The police were called and subsequently Mr Murray was charged.
On 22 November 2010, Mr Murray attended at the complainant’s house where the complainant’s daughters were. He left a garden tool at the house but had no contact with the complainant’s daughters. Police were called and Mr Murray was charged.
On 26 November 2010, the complainant received a call from Mr Murray in which he said, amongst other things, “If you ever, ever, ever hang up on me again, I am going to go out and smash that filthy junkie’s headstone. This has gone far enough. You and I will be talking.” The reference to the headstone was a reference to the complainant’s late husband who was buried in a Canberra cemetery.
On 30 November 2010, Mr Murray made contact by telephone with the daughter of the complainant, asking her to pass on a message of remorse or regret to the complainant. That was the fourth of the offences for which Mr Murray was charged.
Mr Murray appeared in the Magistrates Court from time to time in respect of these matters and on 9 December 2010 bail was refused. He has been in custody since then.
Bail applications were made during 2011 and adjourned from time to time. Finally, Mr Murray was committed for trial on these four charges on 16 February 2011, and the usual processes were put in place for preparation for that trial. On 13 March
2012, Mr Murray pleaded guilty to all charges and the matters were listed for sentence on 17 April 2012.
On 9 March 2012, that is before those pleas were entered, Mr Murray made an application for bail before Burns J. That application was refused. The bench sheet, although not comprehensive in its report of the decision, records that the refusal was “due to the unacceptable risk of re-offending” by Mr Murray. The risk of re-offending is a very relevant matter in bail applications, although, as the Federal Court has said in Dunstan v Director of Public Prosecutions (1999) 92 FCR 168, it is important that that risk be based on evidence and not on speculation.
Regrettably for Mr Murray, not only are there the four offences that I have referred to – which show a pattern of continued offending in relation to breaches of that order –he has a long history of offending, mainly, so far as I can tell, dealt with in New South Wales. It was suggested (and not controverted), although I have not calculated it, that there were eight convictions for stalking on his record, and nine convictions for contravening what are in New South Wales ‘Apprehended Protection Orders’ and in the ACT ‘Protection Orders’. A subsequent count in preparing these reasons showed, infact, a conviction for stalking and fourteen convictions for contravening or breaching apprehended violence orders or domestic violence orders. That is certainly a basis on which the Court would be cautious about the question of reoffending.
On the other hand, it is fair to say, as Ms Warwick submitted, that in the time that Mr Murray was been in custody, that is since 9 December 2010, he has not made any application to have the complainant’s telephone number listed on his telephone list at the Alexander Maconachie Centre. So far as the evidence before me is concerned, there has been no application by him for postal contact or other contact with the complainant either directly or indirectly, and it may be that, as a fact, Mr Murray has learnt from his arrest and relatively lengthy incarceration that the breaches of the Protection Order are offences that cannot be tolerated in this community and will be visited with appropriate sanctions by the Court to ensure that members of the community are properly protected.
Ms Warwick, who has ably appeared for Mr Murray on the application, has put to me that there is a change in circumstances in the entry of the plea. It is necessary under s 20C of the Bail Act 1992 (ACT) for a “change in circumstances” to be adduced to the satisfaction of the Court, in order that the Court may have jurisdiction to deal with the bail application where one has been dealt with immediately before, as occurred in relation to the application before Burns J.
This application originally came before me on 16 March 2012, when Mr Murray submitted that the plea was entered on his understanding that, in the circumstances, the prosecution would be submitting to the Court that the time he had served in custody on remand, pending the trial initially and now the sentence, was sufficient to recognise the culpability and criminality of the offences he has committed. There was some correspondence between his legal representatives and the prosecution, and I indicated on 16 March that I was not satisfied that there may not be some miscommunication and that further communications that might have been made, or appear to have been made, between Mr Murray’s legal representatives and the prosecution may have led to that view.
Mr Joseph, who appeared on 16 March 2012 for the prosecution, was emphatic that the prosecution’s attitude was, firstly, not to be submitting to the Court that the time Mr Murray had already served was sufficient to meet the criminality of the offences. Mr Joseph also indicated that the prosecution would not take an attitude of not opposing a submission to that effect to the sentencing court in due course. Mr Clarke, who has appeared today before me, has confirmed that the position remains so. Ms Warwick, having taken instructions from her client and now appearing to assist the Court, for which the Court is grateful, has not pursued any suggestion that there is a commitment by the prosecution either to accept that the time spent in custody is sufficient or not to oppose a defence submission to that effect.
Ms Warwick has, however, submitted that the plea of guilty is, in the circumstances, a change of circumstances relevant to the granting of bail such as to give the court jurisdiction. That is so, not by the mere entry of the plea, as that would not of itself be sufficient as a change of circumstances. She has submitted, however, that I would be of the view that the likely sentence Mr Murray would receive on the entry of the plea of guilty and after appropriate submissions were made would be no longer and probably significantly less than the period of time he has already served. She noted that the offences were on the whole at the lower end of the scale, and she referred to decisions of this Court including Arman v Wall [2008] ACTSC 61, R v Roberts (unreported, Supreme Court of the ACT, Higgins CJ, 14 September 2010), and R v Taylor (unreported, Supreme Court of the ACT, Nield AJ, 25 February 2011) where significantly lower penalties had been imposed for similar offences. She submitted that on the basis of this material and, of course, my own understanding of the appropriate sentences for these offences, that to detain Mr Murray further in custody would risk him serving a sentence that, in effect (although, strictly he is on remand on and not serving a sentence at the moment), would exceed any sentence that would be imposed ultimately on him.
That is a very difficult submission, because it requires the Court to speculate on the way in which a sentence might be imposed without all the relevant sentencing material. In this case, however, I have much of the relevant material in the statement of facts which I have read, and in Mr Murray’s criminal history. What I do not have, and what I did order, when I accepted Mr Murray’s pleas of guilty on arraignment, was the pre‑sentence report which will set out the personal circumstances and situation of Mr Murray and no doubt will assist in determining the appropriate sentence as such reports invariably do. It is fair to say that such a pre‑sentence report is more likely than not to raise matters that are of subjective benefit to Mr Murray in terms of sentencing and putting circumstances that would show that a more lenient, rather than a more severe, sentence should be imposed. That is by no means always true, and, not infrequently, pre-sentence reports contain material that is adverse to a prisoner standing for sentence and lead to no mitigation in penalty. I cannot speculate on that, I simply do not know. All I currently know about that is taken from the statement of facts, the prior criminal record and the submissions that I have had.
Bail is opposed and it is opposed for a number of reasons. In the first place, Mr Clarke has opposed bail on the basis that I could not be satisfied that Mr Murray has today spent more time, or only as much time, in fulltime custody as any proper sentence is likely to be imposed upon him in due course. He points out that Mr Murray’s criminal history disentitles him to leniency, particularly as that criminal history is replete with offences of the kind that he is now facing.
He further submitted that if I were to accept jurisdiction on the basis that there is a change of circumstances, matters under s 22 of the Bail Act would, in any event, disentitle Mr Murray to bail. He referred to the risk of re-offending, the risk of interfering with witnesses and the risk of failing to attend court. In that regard, he referred to the fact that there was one charge outstanding in New South Wales which really is part of the course of conduct for which Mr Murray is now facing a sentence in this Court. He indicated that police officers were available to arrest Mr Murray should he be granted bail, so that he could be extradited to New South Wales to face that charge. It was also suggested that it was more likely than not that if Mr Murray was extradited to appear in the Queanbeyan Local Court that he would be refused bail. In addition, Mr Clarke pointed out that this ran the risk of avoiding the sentencing proceedings on 17 April 2012, when Mr Murray is required to appear in this Court.
Quite frankly, I am not sure that I should take that matter heavily into account. I have certainly in the past indicated that where there are charges in other jurisdictions I should not speculate as to whether extradition would be sought and would be granted. This is a somewhat different situation because police officers are ready to arrest Mr Murray and, therefore, the certainty of an application for extradition is clear. It is unlikely that an extradition would not proceed in the circumstances if I granted Mr Murray bail.
Nevertheless, as Ms Warwick has quite properly submitted, the circumstances of the offending in New South Wales (details of which I do not have and so I cannot assess the seriousness of the circumstances in that jurisdiction) seem to me to be unlikely to result in a substantial or much increased penalty over and above that which Mr Murray will face in this jurisdiction, assuming the principles in Mill v The Queen (1988) 166 CLR 59 are properly applied. There is no reason to question their proper application in the New South Wales courts.
The real question then is whether Mr Murray has, at this stage, reached a position where any further detention would offend against principles of fairness and proportionality. I take into account, however, what fell from Fox J in Burton v The Queen (1974) 3 ACTR 77 at 79, when he indicated that the proximity of proceedings, in that case a trial, in this case sentencing proceedings, is a factor to take into account to justify the refusal of bail in those circumstances.
Ms Warwick submitted that the opportunity for Mr Murray to be on bail would give him the opportunity, under circumstances where there would be great pressure on him to comply, to show that he will not reoffend and he will not try to contact the complainant and breach the further Protection Order which has now been put in place, the original Order having expired. That, of course, is a significant risk that the Court would take as to the situation of the complainant, but it is true to say that Mr Murray would obviously be in a position where, were he to breach the Protection Order, attempt to contact the complainant or interfere with her or her children in any way, then the severity of the sentence and the likelihood of further incarceration would be almost inevitable.
Nevertheless, the real issue in this matter is whether Mr Murray has, in the all circumstances, served such a period of imprisonment that it would offend against fairness to detain him any further. I have not had the opportunity to look at all the decisions to which Ms Warwick has referred me, but I have looked carefully at the decision in Arman v Wall. In that case, a total effective sentence of 26 months imprisonment was set aside and replaced with a total period of 12 months imprisonment for two offences of a similar type to those that Mr Murray is facing and a breach of a suspended sentence. The offences there were somewhat more serious than three of the offences that Mr Murray is facing, although less serious than the one in which he made serious threats. They involved, in the case of Arman v Wall, abuse which distressed that complainant, but, so far as I can tell from her Honour’s judgment, no threats of the kind that Mr Murray has now pleaded guilty to making.
It is also significant that there are only two offences in that case and that her Honour only accumulated the sentences to a small degree, but in this case the likelihood of significant accumulation seems much greater. The most significant difference is that, in that case, Mr Arman was seriously mentally disturbed. Her Honour, in approaching, as is proper, the need for sentences to moderate general deterrence in circumstances where the offender is not a suitable vehicle for general deterrence, indicated that significantly affected the sentence her Honour imposed on resentencing.
I have also had regard to the fact that, in previous offences, Mr Arman had served only very short terms of imprisonment. That situation is quite different here, where Mr Murray has served significant periods of imprisonment for similar offences. It is true that three of the four offences are at somewhat of the lower end of the seriousness scale, but the repetition – and the repetition in relatively short succession, although not so short that they could be regarded as a single transaction, but short enough to accumulate the distress that no doubt the complainant experienced in these circumstances – means that, in my view, some level of accumulation is likely, although I cannot, of course, bind the judicial officer who will ultimately impose sentence in this Court.
Having carefully considered all of the circumstances, I am not satisfied that a sentence of 17 or 18 months of immediate fulltime custody is beyond a proper sentencing discretion, in the light of the nature of the offences, Mr Murray’s prior criminal record, the periods that he has served in custody and the circumstances. Accordingly, the application is refused.
I certify that the preceding twenty five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2012
Counsel for the Crown: Mr A Joseph, Mr M Clark
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Ms T Warwick
Solicitor for the accused: Kim Bolas Criminal Lawyer
Date of hearing: 16 March 2012, 22 March 2012
Date of judgment: 22 March 2012
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