R v Murphy
[2015] NZHC 2905
•20 November 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-004-007732 [2015] NZHC 2905
THE QUEEN
v
WILLIAM MURPHY
Hearing: 20 November 2015 Appearances:
C P Paterson and G Woods-Child for the Crown
DRF Gardiner for the DefendantSentencing:
20 November 2015
SENTENCING REMARKS OF WOOLFORD J
Solicitors: Meredith Connell (Crown Solicitor), Auckland
Daniel RF Gardiner, Auckland
R v MURPHY [2015] NZHC 2905 [20 November 2015]
[1] Mr Murphy, you appear for sentence today having been found guilty in the
District Court of the following crimes:
(a) One charge of aggravated robbery;1
(b) Two charges of robbery;2 (c) Four charges of burglary;3 (d) Three charges of theft;4
(e) Two charges of theft of property under $500;5 and
(f) Three charges of misusing a document.6
[2] You appear in this Court for sentencing because Judge Field declined jurisdiction to sentence you, as the Crown seeks preventive detention.
Factual Background
[3] Between 25 May 2013 and 24 June 2013, you went on a crime spree and committed a series of property and violence offences around the Auckland region.
[4] The initial offending occurred in Auckland Hospital on 25 May 2013. A
54 year old woman was visiting her father, who was a patient in the hospital. She sat down in a chair and placed her handbag on the floor. You entered the room, and managed to take the victim’s handbag. You removed the victim’s wallet and car keys from the bag, and then went to the hospital carpark. On the way you discarded the bag. You found her motor vehicle, and you stole it. The vehicle was only found
some six weeks later. This gave rise to two charges of theft.
1 Crimes Act 1961, s 235(c): maximum penalty 14 years imprisonment.
2 Crimes Act 1961, s 234(1): maximum penalty 10 years imprisonment.
3 Crimes Act 1961, s 231(a): maximum penalty 10 years imprisonment.
4 Crimes Act 1961, s 219(1)(a) and 223(b): maximum penalty 7 years imprisonment.
5 Crimes Act 1961, ss 219(1)(a) and 223(d): maximum penalty for each is 3 months imprisonment.
6 Crimes Act 1961, s 228(b): maximum penalty 7 years imprisonment
[5] On 8 June 2013, you knocked on the door of a unit in a retirement village. The unit was occupied by an 81 year old woman. When she answered the door, you asked for somebody by the name of “Margaret”. The victim told you there was somebody by that name in a nearby unit. You left, but returned shortly thereafter. You introduced yourself and told the victim that you were working for the New Zealand Police investigating robberies that had been happening in the area. You showed the victim a business card. Believing that you were a police officer, the victim invited you inside. About five minutes later, you asked the victim if you could use her toilet. She agreed. You went into the toilet, flushed it, and then went into the victim’s bedroom. You emptied the contents of her handbag onto her bed and looked through her purse. You walked out, empty-handed, when the complainant’s daughter and partner arrived shortly thereafter. This gave rise to a burglary charge.
[6] The next offending occurred on 17 June 2013. You entered the reception area of a Church in Newmarket. You looked through collection bags that were on a pew, and then feigned interest in a hula class that was starting in one of the community centre rooms. You were invited to sit at the back of the class and watch. You took a set of car keys belonging to one of the participants in the class. As you left the Church, you picked up the collection bags, and checked them for money. You also went to the Church office and looked through a bag at the side of a desk. When you were confronted in the carpark, you denied having taken the keys. You were asked to empty your pockets and you then got the keys out of your pocket, and handed them over. This also gave rise to a charge of theft of property under $500.
[7] There was further offending some twenty minutes later. You went to a property on Remuera Road, a short distance from the Church. You knocked at the door, and asked if a Mrs Fervor or Favour was there. The elderly occupant told you that there was nobody by that name on the property. You then walked away. About ten minutes later, the victim thought she heard somebody at the door. She got up to have a look, but did not find anybody there. Shortly thereafter she heard movement and a faint knocking noise upstairs. She went into the kitchen to phone a friend. As she picked up the phone you approached and grabbed her from behind. You spun her around to face you, and grabbed the phone off her to switch it off. You were waving
the phone-set around, and repeatedly asked the victim not to scream. You told her you were not going to hurt her. You asked if there was anyone else in the house. Fearing for her safety, the victim told you that her son was upstairs sleeping. You replied that that was not the case, because you had been upstairs. You asked the victim for her car keys, money and credit cards. She handed you a total sum of around $580. You then demanded the victim remove her socks, which you took from her. You demanded to be taken via the internal access door to the garage where the victim’s car was parked. You asked the victim to show you how to activate the garage door release button. You then marched the victim to a side room, physically pushing her in the direction you wanted her to go. You told her to remain there for ten minutes, and you closed the door on her. You then left the property in the victim’s vehicle. This offending gave rise to charges of burglary, robbery, and theft.
[8] Your offending continued three days later. On 20 June 2013, at about
10:00 am, a 79 year old complainant left her house in West Auckland to go and buy some groceries from a nearby store. She closed the front door as she left, but did not lock it. She was gone for approximately 10 to 15 minutes. While she was out, you entered the property. When she returned she opened the front door and walked into the kitchen. She then went into the laundry to take her jacket off. She then came back into the kitchen to get her wallet. As she was walking with her wallet towards her bedroom, to put it away, she was approached by you. You told her that you would not hurt her. She started to scream, and you told her not to do so. You demanded that she go into the bedroom. She complied with your demands, but she continued to scream hoping that somebody would hear her. She went up to the window which had slat blinds, and started banging on them hoping to attract the attention of anybody who might be outside. You then threatened her, saying that if she continued to do that, you would hurt her. You pulled the drapes across the bedroom window. You grabbed her right shoulder and pushed her onto the bed. In the course of this altercation, the victim dropped her wallet, and everything fell out. You looked down and pointed at the money and told her that that was what you wanted. You bent down and started picking the money up. You then demanded that the victim follow you. You demanded her credit cards and pin numbers. You told her that if she gave you the wrong numbers, you would come back and hurt her. Fearing for her safety, the victim took two credit cards out of her wallet and handed
them to you. She wrote her pin numbers on a piece of paper. You then demanded that she turn around and walk into the bathroom. You then told her to turn around. You forced her hands and arms behind her back and crossed her hands over at the wrists. You wrapped a pair of pantyhose around both of her wrists and bound them together. After you had tied the victim up, you opened the bathroom door and walked out. You told her not to yell, or to use the phone. You left the house shortly thereafter. You travelled to the ASB Bank in Pt Chevalier, and attempted several times to get large sums of money out of the victim’s account from an ATM machine. You were successful in making two transactions, in the sum of $400. As a result of the incident, the victim received bruising to her hands. This offending gave rise to charges of burglary, robbery, and two charges of dishonestly taking or using a document.
[9] Two days later, you offended again. This time you knocked on the door of an elderly woman’s unit in a retirement village. When the door was opened by the victim, you pushed your way past her. She tried to get to the back door of her unit. You grabbed her, and punched her in the face three times, knocking her to the ground. She attempted to struggle, but was overpowered by you. You repeatedly abused her verbally, and you bound her hands using a cord which you found at the address. You then forced the victim to remove her trousers and underwear, and to lie on the floor. The victim pleaded with you not to rape her. You replied that you would not. The victim had kicked off her socks, and you took them and put them on your hands at some stage. The victim yelled out and attempted to run away from you, at which point you held a knife to her throat and threatened to kill her. While the victim was detained in her house, you took her credit card and a quantity of cash. You demanded the pin number for the card you had taken. The victim supplied you with a false number. You then forced the victim into the bathroom and shut the door on her. When she tried to open the door, you punched her in the face again, and again shut the door on her. You then left the address, leaving the victim detained in the bathroom. Again, you tried to use the victim’s credit card at a nearby ATM machine. As a result of this incident, the victim received substantial swelling and bruising to her face and wrists. The charges that resulted from this incident were of burglary, aggravated robbery and dishonestly using a document.
[10] Finally, you offended again two days later on 24 June 2013. You travelled to the New World supermarket in Warkworth in a stolen car. An 86 year old complainant was entering the supermarket. He had his wife’s handbag in a shopping trolley. You approached him from behind, and tapped him on his shoulder. As the complainant turned around, you moved forward and grabbed the handbag. You then pushed your way back through the trolley bars of the supermarket, and tried to push past the complainant. He grabbed you, to try and stop you running away with the handbag. You wriggled out of his grasp, and in the course of this the handbag fell to the ground. You then fled the scene in a stolen car. The police arrived shortly thereafter, and they pursued you. A short distance from the Puhoi tunnel on State Highway 1, you slowed down and pulled over to the side of the road. A marked police car pulled up behind you. While you were waiting in the stolen car, you put it into reverse and accelerated towards the police patrol car. The police vehicle was hit on the right front corner. The driver of the police vehicle took evasive action to try and avoid a further collision. You tried to ram the police vehicle again and you then chased the police vehicle out of the parking bay. Eventually you got out of the stolen vehicle, and ran away on foot. You were tracked down and located a short time after. You were then arrested. This gave rise to the final charge of robbery.
Victim Impact Statements
[11] Five of your victims have submitted victim impact reports. It is clear from them that your offending has made them scared and frightened. They are all more nervous about interacting in the community, and you have, in that sense, robbed them of being able to interact freely in public. Many of your victims were elderly women who lived alone, so the fear for them has a debilitating impact on their lives.
[12] The victim who you forced to undress, described her experience as “indescribably frightening”. She expressed the fear that if you could do that to her, and also beat her up, “what are you going to do next time, to the next person”. Another victim whose home you broke into says that your offending has blighted her life, and that she continues to endure many disturbed nights. She says that immediately after you attacked her, she was so traumatised that on one occasion she
lay on the floor and vomited. She was beside herself with fear that you would return to her home.
Personal Circumstances
[13] Mr Murphy, you are a 38 year old man. As a child, you experienced serious physical abuse and witnessed domestic violence in the home, culminating in your running away from home at a young age. Beginning then, you have accumulated a long history of prior offending. Although you have been in two long-term relationships, and have three children from those relationships whom you maintain some contact with, you report needing support to help you interact in the community outside the structured prison environment.
[14] Your first conviction, as a 14 year old, was of an attempted sexual violation during a burglary. Since then you have offended on a regular basis.
[15] Much of your offending is dishonesty related, and often at a low level. However, it is notable that you were convicted of unlawful connection with a female over the age of 16, and of rape, in 1996. You received a sentence of six years for that offending. You were next convicted for indecently assaulting a female in 2001.
[16] Further, in June 2007 you were sentenced to seven years imprisonment for indecently assaulting a female, as well as a burglary. At that time the Crown sought a sentence of preventive detention. Baragwanath J, in sentencing, imposed a sentence of seven years imprisonment, with a minimum non parole period of four
years.7 He noted that you were “right on the knife edge” in respect of preventive
detention and that you then qualified for that sentence. He recorded that the finite sentence imposed by him was an “act of mercy” to you, and that it was directed at allowing you to take control of your life so that when you were released from prison, you would resume your family relationship, avoid alcohol, and avoid drugs. He observed that by the time you were released, you would be well into your thirties, and that you would know that if you did reoffend, that it would be for the last time.
[17] Regrettably, you have ignored this warning. In 2013, you were convicted of a burglary you committed in 2012. Further, you have been convicted of failing to answer District Court bail, and for beaching conditions attaching to an intensive supervision sentence imposed on you.
[18] Now you have committed a spate of offending which I have detailed. Moreover this most recent offending occurred while you were subject to a sentence of intensive supervision.
Pre-sentence report
[19] Your pre-sentence report found that you pose a high risk of harm to others, based on your criminal offending history, your most recent convictions and your complex needs surrounding controlling your anger and your use of weapons.
[20] You acknowledged in your interview with the report writer that you were not mentally prepared for the reality of life in the community when you were released from your previous periods of imprisonment. You have been in and out of custody for numerous offences over the years. While you have been in the community, you have relied on Work and Income for financial support. You reported that you used cannabis regularly, had harmful patterns of alcohol use and told the probation officer that while in the community, your lifestyle became “real unbalanced”.
Submissions
Crown Submissions
[21] The Crown submit that you should receive a sentence of preventive detention on the charges of robbery and aggravated robbery. The Crown argues that, Mr Murphy, your previous criminal and behavioural history indicates a persistent pattern of offending, and an entrenched anti-social lifestyle. Coupled with a lack of insight and remorse, this is said to indicate a heightened risk of reoffending. Further, the Crown submits that a minimum period of imprisonment of between eight and nine years should attach to that sentence.
[22] If a sentence of preventive detention is not imposed, the Crown submits then a lengthy finite sentence is appropriate. The Crown submits that a starting point of eight years imprisonment is appropriate in relation to the aggravated robbery, and suggests a total overall starting point of 12 years imprisonment giving regard to the totality of your offending. The Crown identifies the premeditation and planning, use of weapons, targeting vulnerable persons, use of violence, the multiple offences involving separate incidents, and the level of victim impact as aggravating factors of
the aggravated robbery, based on the leading guideline judgment, R v Mako.8 The
Crown also submits that an uplift is necessary to reflect your previous convictions, and the fact that the offending occurred while you were subject to a sentence of intensive supervision. If a finite sentence is imposed, a minimum period of imprisonment of at least two thirds of the end sentence is requested.
Defendant’s Submissions
[23] Your counsel submits that you should not receive a sentence of preventive detention. It is submitted on your behalf, Mr Murphy, that the Crown’s view of your history does not differentiate between previous sexual and violent offences you have committed, and that this is the first time you have ever been convicted of the qualifying offence of robbery or aggravated robbery, so there is no real pattern of offending. Counselling is said to have already helped you prevent further sexual attacks, and has assisted you in showing some insight, mentioned in the reports I canvass below.
[24] The defence submits that a starting point of six to eight years imprisonment would be appropriate for the finite sentence in respect of the lead offending, which is agreed to be offending against the seventh victim. Counsel submits that the Crown’s submission for the appropriate uplift for totality is too high, and that a more appropriate overall sentence is around 10 years imprisonment. In relation to an appropriate uplift for your previous offending, the defence acknowledge that an uplift of 6 – 12 months imprisonment may be appropriate given your previous theft and burglary charges. The defence does not submit that there are any mitigating features of the offending.
[25] In relation to a minimum period of imprisonment, your counsel submits that a period of not less than five years is sufficient to meet the requirements of s 89 of the Sentencing Act, or no minimum period if a finite sentence is imposed.
Sentencing
[26] Mr Murphy, the sentencing process follows a standard approach under the Sentencing Act 2002 (the Act).9 I must consider the purposes and principles of sentencing, as set out in the Act. I will consider what would be an appropriate starting point for the particular culpability of your offending, and in doing so I will have reference to the guideline “tariff” case, in which the Court of Appeal has set out specific guidelines which are applicable in sentencing for the crime of aggravated robbery, which is the most serious crime you have been convicted of. I will then consider any relevant aggravating or mitigating features personal to you which might
require altering this starting point. I will do this before I turn to the question of whether I impose a sentence of preventive detention on you.
[27] In sentencing you, I have had regard to the purposes and principles of sentencing as set out in ss 7 and 8 of the Sentencing Act 2002. In particular, I have reference to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgment of that offending, and the need to denounce the conduct in which you were involved. Further, I have considered the gravity of the offending which you were involved, including your culpability, and the need to promote consistency in sentencing by having regard to the seriousness of your offending in comparison with other offences, and taking into account the maximum penalties for each offence you have committed.
[28] In this case the lead offending, or the discrete offending attracting the highest possible penalty, is the aggravated robbery, burglary and dishonest use of a document charges which occurred against your seventh victim. This means I will set a sentence in relation to that offending and then consider whether that adequately reflects the range of other offences you have been convicted of.
[29] The relevant tariff case for aggravated robbery is the decision of the Court of Appeal in R v Mako.10 The Court of Appeal gave examples of types of aggravated robberies, and various factors which, if present in the particular case, might affect the relevant starting point. Relevantly, the Court noted that:11
Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of 7 years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.
[30] This assessment was made while the Crimes (Home Invasion Amendment) Act 1999 was in force. That has now been repealed, although unlawful entry or presence in a dwelling place is recognised as an aggravating feature of all offending under the Sentencing Act.12 In a number of cases, the Court of Appeal has recognised that these changes reveal a continued intention to treat home invasion as a serious aggravating feature.13
[31] Although the Court of Appeal in Tiori v R considered the appropriate course was to assess the starting point by comparing the sentences in other similar cases, decided since the home invasion provisions were repealed, in Jones v R the Court rejected a submission that the Judge erred in fixing a starting point based on an analogy with Mako.14 In considering other analogous cases therefore, I have primarily focused on cases determined after the repeal of the Crimes (Home Invasion Amendment) Act 1999.15
[32] In your case, drawing on the aggravating factors set out in s 9 of the
Sentencing Act and R v Mako, I identify as relevant five different factors:
10 R v Mako [2000] 2 NZLR 170 (CA).
11 At [58].
12 Sentencing Act 2002, s 9(1)(b).
13 Jones v R [2015] NZCA 312 at [93]; R v Fenton [2008] NZCA 379 at [12]; R v Royal [2009] NZCA 65 at [10].
14 Tiori v R [2011] NZCA 355 at [16]; Jones v R, above n 13, at [93].
15 R v Lal [2015] NZHC 1581; R v Tuira [2015] NZHC 429; Walker v R [2010] NZCA 534; R v
Hepi HC Rotorua CRI-2006-063-946, 20 October 2006.
(a) The victim was vulnerable, as an elderly woman who lived alone and was in her home in which she was entitled to feel safe;16
(b)The target premise was a residential home within a retirement village, and involved forced entry at night.
(c) The use of a knife belonging to the victim in the attack. Although I note it was not brought to the scene, spontaneously grabbing the knife to facilitate obtaining the card pin numbers is still an aggravating factor.17
(d)The use of actual violence toward the victim, which “takes the conduct into another dimension”.18 In this case, the actual violence included holding a knife to the victim’s throat, punching her in the face, binding her hands and forcing her to remove her trousers and underwear.
(e) The degree of planning and preparation. There was sufficient planning and premeditation, in my view, for you to know that you were targeting an elderly woman, but the level of planning was very unlike the description in Mako of “care and sophistication” in
planning and of “criminal organisations”.19 I agree with your counsel
that there was not a high degree of planning or preparation akin to
having a “master plan”.
[33] The effect on the victims is also “of considerable importance in assessing the seriousness of aggravated robbery offences”.20 In this case, what was actually taken in the robbery was minimal, but the effect on the victim was obviously severe. Mr Murphy, your treatment of the victim was callous and degrading. Although you mention in your pre-sentence report that you refrained from doing anything to her
other than requiring her to remove her pants and underwear, your actions caused her
16 Section 9(1)(g) and Mako, above n 8, at [40] – [41].
17 Mako, above n 8, at [39].
18 Mako, above n 8, at [43].
19 At [36].
20 Mako, above n 8, at [46].
a great amount of distress and anxiety, and understandably, some embarrassment. Degrading treatment was recognised as an additional aggravating factor in Manuel v R.21
[34] Taking these into account, I consider your offending to be most similar to R v Lal. Both cases involved actual violence, the binding of the victims’ hands, the targeting of a vulnerable victim alone at home, the presence of a knife and sexual indecency. Although the indecency in that case was more explicit, I consider the offending generally to be highly similar. Your offending is clearly, in my view, lower in level than cases involving long-lasting violence to the victims and although there was a sexual underlay to your actions, your offending did not involve the actual sexual attacks that other cases reflect.
[35] The Crown have advocated for an eight year starting point, and the defence one of six to eight. I adopt a starting point of seven and a half years imprisonment on the aggravated robbery charge.
Uplift for other offences
[36] Mr Murphy, the other crimes you committed during this “spree” of offending were not insignificant. They require me to uplift the starting point to reflect the totality of the offending you were engaged in. There is no particular way to sentence for multiple offending, but the sentence must reflect the totality of the offending, and so must reflect the overall criminality of the offending and the offender.22
[37] In this case, I will approach this on the basis that a global uplift to the lead offence sentence, to take into account the other offending is appropriate. In determining the appropriate uplift, I have surveyed both cases involving a range of offending, to assess comparable views of “totality” and cases involving burglaries
similar to the offences committed here, by way of comparison.
21 Manuel v R at [26]
22 R v Xie [2007] 2 NZLR 240, (2006) 22 CRNZ 949 at [17] and [18], citing R v Barker CA57/01,
30 July 2001 at [10] and R v Williams CA91/00, 31 May 2000.
[38] The Crown has identified the cases of R v Burnie and Stephens v R as authority for setting a starting point of the totality of the offending.23
[39] Defence counsel submits that on a totality basis, your offending was less serious than Burnie or Stephens, which both involved “concentrated periods of serious offending”. However, the distinction between 18 offences in three weeks and
15 in just over four weeks (contrasting the present case and Burnie) appear to be one of semantics. However, other cases involving distinctly different sets of offending will always be of limited direct applicability for the purposes of assessing the overall culpability of a set of offending.
[40] I turn now to consider burglary cases to assess the relative culpability of some of the other offending. There is no tariff decision for burglary. However, in Senior v Police a full High Court bench identified factors which had historically been regarded as aggravating, including behaviour which involves actual danger or confrontation with occupiers, behaviour which makes a victim feel targeted, want and destruction of property, theft of high value or sentimental items, sophisticated planning and execution and offending while on bail or parole or in close proximity to
other burglary charges.24 The Court further categorised burglars as first time
(category 1), recidivist (category 2) or spree (category 3). Limited sentencing guidance was offered. In R v Southon, the Court of Appeal noted that Senior should not be regarded as more than a very helpful analysis of historic sentencing patterns for burglary offending, and that recidivist burglars cannot assume that Senior may be relied upon to limit their sentences to three years imprisonment.25
[41] I have considered a range of cases in order to assess an appropriate overall uplift, taking into account the range of other offences you are charged with, Mr Murphy.26 I do not seek to determine specifically an appropriate sentence for your burglary charges, or for your robbery charges. Although burglary charges can
vary dramatically,27 these cases indicate the range available in sentencing for the
23 R v Burnie [2007] NZCA 54; Stephens v R [2011] NZCA 341.
24 Senior v Police (2000) 18 CRNZ 340 (HC).
25 R v Southon (2003) 20 CRNZ 104 (HC) at [13].
26 Fonua v Police [2015] NZHC 2360, per France J; R v Nguyen CA110/01, 2 July 2001 at [17];
Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78]; Bell v R [2014] NZHC 3105.
27 Arahanga v R, above n 26, at [78].
type of offences you have committed. I also take into account that, as in Burnie and Stephens, your offending included more than just burglaries, and included the more serious robberies.
[42] In this case, Mr Murphy, you can be categorised as both a recidivist and spree burglar, although I have not taken your previous convictions into account in assessing this uplift. I will deal with that discretely. You targeted, deliberately, the homes of vulnerable older women, and put yourself in situations involving actual danger or confrontation with those victims. Although you took primarily low value items, and limited cash funds were available from the Eftpos cards you stole, for the victims this comprised significant amounts. Your actions were calculated and planned, albeit not hugely sophisticated.
[43] The Crown has asked for an overall sentence of 12 years imprisonment to reflect totality, based on an eight year starting point. On your behalf, Mr Murphy, ten years imprisonment is sought. Considering the offending in total, I take the view that an uplift of three and a half years imprisonment is appropriate to recognise your culpability. This brings me to a revised sentence of 11 years imprisonment.
Adjustments to sentence for personal circumstances
[44] As well as imposing an uplift to recognise the totality of your offending in this case, the Crown have asked that I impose an uplift to take into account your previous convictions, as well as the fact that this offending occurred while you were on supervision.28 As I have mentioned numerous times, you have a significant criminal history which includes 15 burglaries and 10 thefts, among others.
[45] The Crown submits that these factors warrant an uplift of 12 months imprisonment. As suggested by Senior v Police, and noted in cases subsequent, an uplift to recognise prior offending is relatively standard in burglary cases which often involve recidivist behaviours. This can be to recognise, generally, that those convictions bear on an individual’s character and culpability, that they indicate a
predilection to offend in a certain way, and/or the need to protect society by the
28 Sentencing Act 2002, ss 9(1)(c) and 9(1)(j).
imposition of a deterrent sentence.29 Your counsel concedes that such an uplift is appropriate, and acknowledges an uplift of six to 12 months imprisonment may be appropriate.
[46] Mr Murphy, your criminal history reveals a pattern of burglary related offending. You embarked on the current set of offending despite recently being released from imprisonment and the clear warnings from your earlier court cases about the need to control your behaviour. While the current offences are quite different from your earlier, low-level offending, they reveal an escalation in your behaviour. Although none of your offending so far has involved aggravated robbery, the mix of offending revealed in your record shows that you have a predilection toward this type of offending generally. In this case, I would apply a further uplift of
12 months imprisonment.
[47] There appears to be no mitigating factors to consider in your offending, Mr Murphy. Neither report writer, including of your pre-sentence report, thought that you demonstrated any remorse, and you did not plead guilty to any charges. Although your counsel submits you are conscious of the impact your offending has had, and regret any harm caused, he does not seek any discount to your sentence based on this.
[48] This brings your finite sentence, if I were to impose it, to one of 12 years imprisonment.
Preventive Detention
[49] I turn now to consider Mr Murphy, preventive detention. Preventive detention is an indeterminate prison sentence, which means that prisoners may be released on parole, but are subject to recall at any time and are subject to Department of Corrections supervision for the rest of their lives. The purpose of preventive detention is to protect the community from those who pose a significant and ongoing
risk to the safety of its members.30 That is, when a finite sentence does not offer
sufficient protection to the community from the offender. However, it is not to be a
29 Reedy v Police [2015] NZHC 1069 at [19].
30 Sentencing Act 2002, s 87(1).
sentence of last resort, but a protective sentence to be imposed when necessary to do so.31
[50] The Court may impose a sentence of preventive detention if three criteria are met. These are:32
(a) a person is convicted of a qualifying sexual or violent offence;
(b)the person was 18 years of age or over at the time of committing the offence; and
(c) the Court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date.
[51] The first two criteria are clearly met on these facts, as aggravated robbery and robbery are qualifying offences and you are over 18. The only contentious matter, therefore, is whether the Court is satisfied you are likely to commit another qualifying offence after your sentence. Qualifying offences include robbery and aggravated robbery.33 The Court has held that “is satisfied” carries no implication of proof beyond reasonable doubt, but merely implies that the Court must make up its mind on reasonable grounds, or come to a judicial decision on the matter.34
[52] Even if these three factors are met, I note that the question of imposing
preventive detention remains one of the Courts’ discretion.
[53] The overall assessment is to be determined using reports from at least two appropriate health assessors about the likelihood of you committing a further qualifying sexual or violent offence.35 Two reports have been provided. One has
been authored by Dr Ian Goodwin (“the Goodwin report”), and the other by
31 R v C [2003] 1 NZLR 30 (CA) at [6].
32 Sentencing Act 2002, s 87(2).
33 Sentencing Act 2002, s 87(5).
34 R v Leitch [1998] 1 NZLR 420.
35 Sentencing Act, s 88(1)(b).
Dr Sanjeeta Sharma (“the Sharma report”). I discuss their findings below, but both reports assess you as being at a high risk of reoffending.
[54] In terms of the level of potential risk, it has been said that “there has to be a significant, ongoing risk of serious harm before somebody is incarcerated indefinitely”.36 An offender’s past convictions will be relevant to assessing future risk,37 although there is no requirement that offenders have previous convictions to be subject to preventive detention, and preventive detention has been imposed on first time offenders.38 On the other hand, the fact that an offender had not been warned of the possibility of preventive detention, and had never had the opportunity to attempt rehabilitation and reform has been treated as relevant.39
[55] The Act provides a further list of obligatory factors the Court must take into account when considering whether to impose preventive detention.40 I discuss these factors in turn below.
Any pattern of serious offending disclosed by the offender's history, s 87(4)(a).
[56] Mr Murphy, as I have noted, you have a long history of offending. However, the majority of that offending is relatively low-level, peppered by more serious incidents across the years. Although you have a significant number of theft and burglary charges, none of these are in a category of “serious” offending such that, of themselves, they would allow preventive detention to be considered. Your more serious offending has been more recent: a series of indecent assaults and a more significant burglary charge from 2001 and 2004.
[57] While this does not necessarily reflect a clear pattern of behaviour, the Sharma report notes that your most recent offences against elderly women showed a progressive escalation in the use of threats and physical violence. The Sharma report
also suggests that you have an established pattern of robbing and sexually abusing
36 R v Parahi [2005] 3 NZLR 356 (CA) at [85].
37 R v McGee (1995) 13 CRNZ 108 (CA).
38 Bruce Robertson Adams on Criminal Law (online looseleaf edition, Westlaw) at [SA87.07A];
see R v Cumming HC Christchurch T25/02, 18 December 2002 and R v Bryant CA236/03, 16
December 2003.
39 R v Ranga [2014] NZHC 2583 at [29].
40 Sentencing Act 2002, s 87(4).
older women. The Goodwin report also reinforces that your history not only depicts a long history of serious offending, but also that it is diverse over a lengthy time period.
[58] The offending disclosed in your history is clearly serious. Although it is not a consistent pattern of property offences involving violence against women, some combination of those two elements is exactly what the overall picture gained from your record does indicate. I conclude, therefore, that there is a pattern of serious offending disclosed by your history.
The seriousness of the harm to the community caused by the offending, s 87(4)(b).
[59] It is clear from the victim impact reports that the harm caused to the community by your offending was very serious. As noted in R v Komene, serious and unprovoked attacks on a person at home undermines the safety that members of the community are entitled to feel.41
[60] That, I consider, is particularly so when you target vulnerable older women who live alone. These members of the community are particularly deserving of society’s protection, and it is an indictment of your behaviour that they now feel so scared of others, and of being in their own homes.
Information indicating a tendency to commit serious offences in future, s 87(4)(c).
[61] The Goodwin report and the Sharma report both set out serious indicators that you are likely to offend again in the future. In particular, they both highlight that you have anti-social values and beliefs, and that your motivation to change is poor. Despite engaging in long-term psychological treatments while in prison previously, you have a lack of insight and remorse into your offending. The Sharma report, in particular, notes your lack of insight into your offending and your ongoing poor problem solving skills as key factors in leading to future offending. As well, the report notes that you have ongoing difficulties with sexual pre-occupations when
in the presence of women and this is aggravated by being stressed and lonely. This
41 R v Komene [2013] NZHC 1844 at [80].
indicates that you are likely to incorporate a sexual element into your offending in the future.
[62] In relation to your offending in this case, in which you asked one victim to remove her underwear, you said “I could have done some things that were going through my head but did not want to end up here [prison] again.” Although in some ways this indicates impulse control, it also emphasises the sexual preoccupations which underlie and inform your offending. The Sharma report notes that this demonstrates you can benefit from treatment in controlling your urges, but that you still quickly regress into deviant lifestyles once in the community. Similarly, the Goodwin report states that your alcohol and drug-taking is a major problem for you, which means that in the absence of treatment, you are likely to reoffend. I discuss your ability to engage in such counselling below.
[63] Your counsel has submitted that the reports do not show a tendency to commit a qualifying offence in the future, despite their views that you are likely to commit offences in the future. However, the report-writers were simply asked to assess the likeliness of a serious offence being committed in the future. Both found such offending would be likely.
[64] As you yourself note, attempting to control your behaviour while outside of the controlled prison environment is an area of real struggle for you. This insight into your own inability to control your behaviour when presented with disruption or challenges confirms the view that you have a strong tendency to commit serious offences in the future.
The absence of, or failure of, efforts by the offender to address the cause or causes of the offending, s 87(4)(d).
[65] Despite having extensive psychologist treatment whilst in prison, you reoffended while still on supervision. Although you were recorded as having gained insight into your risk factors for reoffending, you failed to put any of this learning into place when released and instead blamed others for not doing enough to help you.
[66] The Goodwin report notes a significant history of supervision failure, and failure to engage with community based sanctions, and organisations which could assist you, Mr Murphy, on release from prison. It is evident from your history of offending on release from prison that you lack the ongoing motivation to engage in programmes to address your needs once you are no longer in the structured prison environment.
[67] The Sharma report detects in your attitude a deflection of responsibility from yourself onto these organisations and parole officers. These factors suggest a very real failure on your part to address the causes of your offending, and to engage with preventing those causes affecting you again. This can also be seen in your continued reliance on drugs and alcohol, despite acknowledging its effect on your behaviour. It can also be seen in your view that once things are no longer provided for you, you are somehow obliged to reoffend: for example, your statement that “I had nowhere to live and I thought, okay, someone is going to get burgled now.”
[68] Your counsel suggests that you are now taking responsibility for yourself, and that with further interventions you will be able to address issues involving violence, drugs and alcohol. He states that you have gained insights into your offending and that you now with hindsight realise you could have made better use of the assistance available to you on leaving prison. While I accept that you showed some progress in your rehabilitation before you left prison on the last occasion, you have showed no ability to apply this learning once released. Although you engaged with psychologists, both in prison and for the reports necessary for this sentencing, this is of limited use if it does not modify your behaviours. While further programmes may help you in the future to better apply your insights outside of offending, I conclude that there has been a clear failure of the limited efforts that you have made to address the causes of your offending.
The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society, s 87(4)(e).
[69] This principle is reflective of the general sentencing principle that the Court must impose the least restrictive outcome that is appropriate in the circumstances.42
However, in this case, you have received lengthy determinate sentences in the past to little effect. You have regardless continued to offend on release. There is nothing in your history, or the reports offered which suggests that a finite sentence and engaging in further rehabilitation whilst in prison will bring you any added benefits or protect the community in any meaningful way.
[70] Your counsel submits that you showed significant progress in your last period of imprisonment to show that you will respond positively to a long sentence of imprisonment. It is difficult to see where this view comes from. Although you did not commit further sexual offending, the current offences were in no way minimal.
[71] The Sharma report, in fact, comments that an indeterminate sentence may in fact create and reinforce awareness in you that you cannot just “do time” but must actively address your offending to earn release back into the community. The ability to be recalled to prison may also be helpful in ensuring you recall the need to maintain pro-social conduct. The Sharma report notes that you will need highly structured supervision on reintegration into society if a finite sentence is imposed.
Analysis
[72] In my view, the reports and your criminal history clearly demonstrate that you have, at least a likeliness to reoffend. Based on your criminal history of low- level burglaries, Mr Murphy, there might be some question as to whether you would reoffend with a “qualifying violent offence”, in order to meet the third criteria for imposing preventive detention. That is what your lawyer has submitted on your behalf.
[73] However, in my view it is sufficiently clear from the details of your prior offending, and your interviews with the mental health assessors that your offending
42 Sentencing Act 2002, s 8(g).
stems from preoccupations with older women, compounded by your lack of ability to function and provide for yourself in society. The crimes you committed for which Baragwanath J sentenced you involved breaking into women’s houses and touching them. The rape you committed in 1996 also involved breaking into a retirement village to rape an older woman. You yourself acknowledged in an interview that you liked to target older women as they were easier to overpower and you liked having that power over them. This too suggests that your targeting of retirement homes is more than opportunistic, but reflects a deliberate pattern.
[74] Although the current crimes you have been convicted of have not involved these sexual elements, the fact that your behaviour has manifested in such similar preoccupations over such a stretch of time indicates that the underlying factors which drive you to offend have never been addressed. This, combined with your inability to function in society which you perceive as requiring you to burgle to support yourself, means that it is highly likely you will commit the same types of robbery you committed here in the future.
[75] However, the imposition of preventive detention remains a discretionary assessment for the judge.
[76] In your case, Mr Murphy, you have had a clear warning from Baragwanath J that you needed to take particular care with your actions as you were at risk of having a sentence of preventive detention imposed. Despite receiving a relatively lengthy sentence of seven years imprisonment, with four years minimum non-parole period in November 2004 and accessing some rehabilitative and psychological treatment during that time, you were again convicted of burglary in April 2012. You committed the current offending while on supervision which was imposed after breaches of intensive supervision and failure to answer District Court bail. You have not taken the learning opportunities presented to you.
[77] This means that you have not addressed the underlying issues identified by the psychologists as at the heart of your offending. Further, your offending does appear to be escalating, rather than diminishing with time and age. There is a violent nature to your offending. As noted in R v Lawson, a factor in applying preventive
detention in aggravated robbery cases has been where “actual physical violence has been used by the offenders which increased the seriousness of the harm to the community caused by the offending.”43 Although your primary crimes are property related, your growing attacks against the homeowners you are stealing from is an important factor in assessing your risk to the community.
[78] It is difficult to speculate as to how anyone would behave following a lengthy finite term of imprisonment. Baragwanath J stated he was required to “look into a crystal ball” when he made the same assessment regarding your likeliness to reoffend, in 2007. However, I now have the benefit of knowing that, very soon after completing the sentence handed down to you in 2007, you were back reoffending. As I have noted, this failure to re-engage in the community increases the perceived risk that you hold in the future.
[79] Although your counsel states that you wish to leave the “prison-release- prison” treadmill, it is difficult to detect any change in circumstance between your position following this offending and the last set of offending. You told the Court and psychologists in the course of the sentencing before Baragwanath J that you had a willingness to engage and would seek help. At this point, it seems that you may be incapable of sufficiently following through on that desire.
[80] It is an almost inescapable conclusion that there is an ongoing risk to the safety of the community through your potential actions. I conclude that exercising this Court’s discretion to impose preventive detention is an appropriate response in order to safeguard the community from future offending.
Minimum Period of Imprisonment
[81] Under s 89 of the Sentencing Act, if preventive detention is imposed, a MPI of no less than five years must also be imposed. This is the minimum time you must spend in prison, Mr Murphy, before becoming eligible for parole. The Court must impose a MPI which is the longer of either the minimum period of imprisonment
required to reflect the gravity of the offence or the minimum period of imprisonment
43 R v Lawson [2013] NZHC 1150 at [38].
required for the purposes of the safety of the community in light of the offender’s
age and the risk profile.44
[82] The Crown has submitted that an MPI equivalent to two-thirds of an appropriate finite sentence should be imposed. This would be equivalent to around eight years and three months. The defence submit that a five year MPI be imposed.
[83] As I have stated, Mr Murphy, the gravity of your offending to the victims and community was significant. However, I do not consider that they were cumulatively so grave that an MPI of two-thirds of your sentence would be justified. In many cases, a high MPI is necessary because the final sentence, reflecting mitigating factors and guilty pleas, is lower than that necessary to protect the community or reflect the gravity of the crimes. That is not the case here.
[84] I consider that a six year minimum period of imprisonment would be appropriate to reflect both the gravity of the crime, and to adequately protect the community’s safety.
[85] Mr Murphy, although I am about to impose on you a sentence of preventive detention, I consider that a lower MPI should encourage you to engage deeply in your rehabilitation while in prison. As the Court of Appeal has said, preventive detention is still a sentencing exercise governed by the principles set out in the Sentencing Act 2002. Taking into account within your sentence your capacity for
rehabilitation and reintegration into society is a statutorily set down principle.45
[86] A sentence of preventive detention does not mean that you are irredeemable. A six year MPI gives you the opportunity to demonstrate to the Parole Board your progress while in prison. They will then be best placed to make the assessment as to
your suitability for parole.
44 Sentencing Act 2002, s 89(2).
45 Sentencing Act 2002, s 7(h).
Conclusion
[87] On the charges of robbery and aggravated robbery, I impose a sentence of preventive detention with a minimum non-parole period of six years imprisonment.
[88] On the other charges, I impose concurrent sentences of:
(a) Four charges of burglary: four and a half years imprisonment. (b) Three charges of theft: three years imprisonment.
(c) Two charges of theft of property under $500: three months imprisonment.
(d) Three counts of misusing a document: 18 months imprisonment. [89] You may stand down.
……………………………….
Woolford J
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