The State of Western Australia v Murphy
[2024] WASC 481
•17 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MURPHY [2024] WASC 481
CORAM: QUINLAN CJ
HEARD: 17 DECEMBER 2024
DELIVERED : 17 DECEMBER 2024
FILE NO: INS 21 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DAVID JOHN MURPHY
Respondent
Catchwords:
Criminal law – Accused unfit to stand trial for arson subject to custody order – Application to set limiting term of custody order – Custody order made under repealed legislation – Transitional provisions – Turns on own facts
Legislation:
Criminal Law (Mental Impairment) Act 2023 (WA), s 50 s 264, s 265
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 19(4)
Sentencing Act 1995 (WA), s 6, s 9AA
Result:
Limiting term set as 9 years
Proceedings adjourned pursuant to s 265(7)
Category: B
Representation:
Counsel:
| Applicant | : | A J Finn |
| Respondent | : | W Nelson |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Mental Health Law Centre |
Cases referred to in decision:
The State of Western Australia v Chokolich [2024] WASC 346
The State of Western Australia v Smith [2024] WASC 361
QUINLAN CJ:
(This judgment was delivered extemporaneously and has been edited to correct grammar and to include full references to relevant authorities.)
In the early morning of Christmas Day in 2010, a fire was started at a residence in Nollamara. There were 10 people asleep in the house at the time, including eight children. Fortunately, no one was killed or seriously injured.
The respondent, David John Murphy, was later arrested and interviewed in relation to the fire. He was initially charged with 10 counts of attempted murder. Those charges were later discontinued and Mr Murphy was charged with one count of criminal damage by fire (arson).
On 1 February 2012, Mr Murphy was committed to this Court for trial.
On 15 June 2012, Jenkins J found that Mr Murphy was not fit to stand trial. Her Honour made a custody order with respect to Mr Murphy pursuant to s 19(4) of the previous Criminal Law (Mentally Impaired Accused) Act 1996 (repealed Act).
The repealed Act was repealed by the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act). Pursuant to the transitional provisions of the CLMI Act, Mr Murphy's custody order under the repealed Act (existing custody order) has effect as if it were a custody order made under pt 5 of the CLMI Act.[1]
[1] CLMI Act, s 254.
I am now required by the CLMI Act to set a limiting term for Mr Murphy's existing custody order, being the best estimate of the term of imprisonment that the court would, in all of the circumstances, have imposed if the court were sentencing Mr Murphy and he had pleaded guilty to the charges at the earliest opportunity and his mental impairment was not taken into account.
For the reasons that follow, I will set the limiting term for the custody order as 9 years. Having regard to the time spent by Mr Murphy in custody on remand, I will also order, pursuant to s 264(3) of the CLMI Act, that the limiting term be taken to have commenced on 3 February 2011.
As the limiting term expired before today, I will adjourn the proceedings until the Minister either applies to the court for an extended custody order under pt 7 div 5 of the CLMI Act or informs the court that such an application will not be made.
Relevant legal principles
The requirement to set a limiting term for a custody order is found in s 50 of the CLMI Act. I have previously set out a number of general principles in relation to both s 50 and the transitional provisions in The State of Western Australia v Chokolich[2] and The State of Western Australia v Smith.[3]
[2] The State of Western Australia v Chokolich [2024] WASC 346 (Chokolich).
[3] The State of Western Australia v Smith [2024] WASC 361 (Smith).
Section 50(2) of the CLMI Act requires the court to determine the 'best estimate' of the term of imprisonment that the court 'would, in all the circumstances, have imposed', based on certain assumptions. The task is necessarily a hypothetical exercise, given the assumptions that the court is required to make by both s 50(2) and s 50(3) of the CLMI Act, including that Mr Murphy pleaded guilty to the charge of arson at the earliest opportunity and his mental impairment was not taken into account. The term of imprisonment that the hypothetical sentencing court 'would have' imposed is the sentence the court would in fact have imposed by applying the Sentencing Act 1995 (WA) (Sentencing Act), and in particular s 6 of that Act, in light of ordinary sentencing principles.[4]
[4] Chokolich [62].
I turn then to the best estimate of the sentence that the court would have imposed if it were sentencing Mr Murphy for the offence of arson.
Circumstances of the charged offence
The State read a Statement of Material Facts for the purposes of the application. It also tendered a brief of evidence prepared for the purposes of the hearing. Mr Murphy's counsel accepted those facts for the purposes of the application.
The Statement of Material Facts was to the following effect.
In December 2010, Mr Murphy was 35 years old. He had a history of severe mental illness.
Between 6 December 2010 and 21 December 2010, Mr Murphy had been treated at Fremantle Hospital for acute psychosis as an involuntary patient.
After leaving Fremantle Hospital on 21 December 2010, Mr Murphy went to a house in Nollamara, which was the home of an acquaintance of his. That acquaintance agreed to Mr Murphy staying with him temporarily.
On the morning of 24 December 2010, Mr Murphy was at the house when it was visited by two brothers, who lived nearby. The brothers were talking either to Mr Murphy, or in his vicinity.
Mr Murphy believed the brothers were talking about having raped his two daughters, whom he called 'Madison' and 'Indie'. Mr Murphy almost certainly has no children. When Mr Murphy thought he heard the brothers say that they had raped his daughter Madison, he said 'That's my daughter'. They said, 'Does she live in that direction?', and Mr Murphy replied, 'No, she lives in that direction'.
At that point Mr Murphy decided to exact revenge on the brothers and their family by setting fire to their house while they were inside.
The brothers left the house and returned to their home in Nollamara. They lived with their parents, and seven siblings (there were nine children in all).
At approximately 5.00 a.m. on 25 December 2010, Mr Murphy left the house he was staying in with the intention of procuring fuel to light a fire to get 'revenge' on the brothers and their family. Mr Murphy picked up a small metallic fuel can and a white plastic bin from the front of the house. He modified the white bin by attaching a coat‑hanger to it as a makeshift handle. He walked to a petrol station approximately 1 km away, where he purchased $15 worth of petrol.
Mr Murphy went to the family home of the brothers. He poured the petrol from the bin and fuel can across the front of the house, covering the building, windows and doors. He also poured petrol onto a vehicle parked in the carport adjacent to the house. Mr Murphy left a trail of fuel down the driveway and lit it with a cigarette lighter.
At the time the fire was lit there were 10 members of the family asleep in the front of the house, with six children asleep in the front lounge room and two children asleep in the front bedroom with two adults. The ages of the children in the house were two, four, five, eight, 10, 13, 15 and 16 years. The five-year-old child was physically disabled and confined to a wheelchair. The adults in the house were aged 40 years and 42 years, respectively. The male adult suffered stage three emphysema.
Mr Murphy did not stay at the residence to observe the fire; he ran back to the house that he was staying at and went to sleep.
The fire lit by Mr Murphy quickly spread across the front of the premises engulfing the walls, ceiling, windows and front door. The male adult occupant woke from having difficulty breathing due to the petrol fumes and smoke. He managed to run through the fire at the front door and reach a garden hose, enabling him to partially extinguish the fire at the door and allowing the adult female to get all of the children out of the burning house.
Fire and Emergency Services were called to the premises and fully extinguished the fire without injury being caused to anyone. The damage to the front of the house was valued at $2,000 and the damage to the family's vehicle parked outside was estimated to be $1,000.
On 3 February 2011, Mr Murphy was arrested and interviewed. He made full admissions to setting fire to the house with the intention of killing all persons inside, and that he believed there were six occupants present. Mr Murphy appeared to believe that members of the family were responsible for raping his daughters.
Mr Murphy's personal circumstances
Mr Murphy is now 49 years of age.
Mr Murphy has a prior criminal record. It consisted principally of driving and minor drug offences, for which he received fines. While a court sentencing Mr Murphy would not have increased his sentence because of his prior offending, he would not have been sentenced as a person of prior good character.
Mr Murphy also has a chronic history of mental illness, including paranoid schizophrenia, which has required numerous hospital admissions. He currently remains at the Frankland Centre and is understood to be compliant with his treatment but continues to display a number of positive and negative symptoms of his schizophrenia.
In the circumstances, Mr Murphy would have been entitled to the maximum discount of 25% of the head sentence for his plea of guilty at the earliest opportunity pursuant to s 9AA of the Sentencing Act.
Best estimate of the sentence that would have been imposed
The maximum penalty for arson is a sentence of life imprisonment. While it is clearly a serious offence, arson can be committed in a very wide variety of circumstances and there is no tariff for the offence.
The offence in the present case was, in my view, an extremely serious case of arson, and was indeed approaching the most serious of its type. While the damage done to the house was relatively limited, Mr Murphy deliberately lit a fire in a residence that he knew to have many occupants, including children.
It would seem clear that, in his state of delusion, Mr Murphy subjectively intended to kill the occupants of the house. Given that his subjective intention was almost certainly the product of his mental impairment, however, this case gives rise to the kind of difficulties I discussed in Chokolich at [66] to [73]. That is, it is difficult to attach any weight to Mr Murphy's subjective intention in the hypothetical sentencing exercise while at the same time not taking into account his mental impairment.
Doing the best that I can in those circumstances, I have approached the hypothetical sentencing exercise on the basis (as I must) that Mr Murphy wilfully and deliberately lit the fire (in a premeditated way), knowing that there were persons, including children, in the house. I will eschew any particular finding as to why he did that; but those objective facts alone are enough to make the circumstances of this case extremely serious. It is only a matter of luck that someone was not seriously injured or killed; and, for the purposes of the hypothetical sentencing exercise, Mr Murphy must be taken to have been aware of the real possibility that that would occur.
The sentence that a court would have imposed on Mr Murphy would have taken into account both general and specific deterrence. Nevertheless, given the limitations created by the requirement not to have regard to his mental impairment I would, as I did in Smith,[5] apply what might be described as 'run of the mill' weight to specific deterrence: that is, to neither give less weight on account of a commitment to pro-social behaviour, nor additional weight to an unrepentant attitude to future offending.
[5] Smith [100].
In my view, a court sentencing Mr Murphy, absent his mental illness, would have imposed a very long sentence indeed and greater than sentences customarily imposed for arson in the past (even allowing for the wide range of those sentences).
In my assessment, having regard to the above matters and all relevant sentencing principles (including a discount for the plea of guilty of 25%) and customary standards of sentencing, the appropriate sentence in this case would have been a term of 9 years imprisonment.
I will therefore set the limiting term for Mr Murphy's existing custody order pursuant to s 264 of the CLMI Act as 9 years.
Mr Murphy spent a total of 1 year, 4 months and 12 days – or 16 months – in custody prior to the making of the custody order. In the ordinary course, had he been sentenced, he would have been entitled to have that period in custody taken into account. In those circumstances, I will order, pursuant to s 264(3) of the CLMI Act, that the limiting term be taken to have commenced on 3 February 2011, being the commencement of Mr Murphy's time in custody.
Next steps
As will be apparent, Mr Murphy's limiting term expired a number of years ago.
Pursuant to s 265(6) of the CLMI Act, the court must either make an order discharging Mr Murphy from the existing custody order or make an extended custody order under pt 7 div 5 of the CLMI Act.
Before determining that issue, however, the court must adjourn the proceedings until the Minister applies for an extended custody order or informs the court that such an application will not be made.[6] In the meantime, Mr Murphy's existing custody order will continue by operation of s 265(2) of the CLMI Act.
[6] CLMI Act, s 265(7).
I will therefore adjourn the proceedings to a date to be fixed to enable the Minister's intention to be known.
Orders
For these reasons, I will make the following orders:
1.Pursuant to s 50 and s 264(1) of the CLMI Act, the limiting term for the custody order made in respect of David John Murphy on 15 June 2012 by Jenkins J is set as 9 years.
2.Pursuant to s 264(3) of the CLMI Act, the limiting term be taken to have commenced on 3 February 2011.
3.The proceedings be adjourned pursuant to s 265(7) of the CLMI Act until 6 February 2025, with liberty to apply to relist the matter.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Principal Associate to the Hon Chief Justice Quinlan
17 DECEMBER 2024
0
2
3