DPP v Murphy & Anor [2025] VCC 1906

1. Wayne Webber, on 4 June 2025 you were arraigned before a jury of your peers and entered a plea of not guilty to: Charge 1 - home invasion, charges 3 - 5, being counts of criminal damage, and charge 6 - common assault.
2. Following a trial, you were found guilty by a majority of a jury of your peers of charge 6, common assault of Scott Blakey (Maximum penalty of 5 years' imprisonment).[6]
3. That jury acquitted you both on the count of home invasion and acquitted you, Mr Webber, of the other charges of criminal damage.
4. Prior to the commencement of the trial, Allan Murphy, you were also arraigned on Indictment No. Q10214928, a single charge of cultivation of narcotic plants. You entered a plea of guilty to that charge.
5. I am satisfied on the balance of probabilities that the offence was not committed by you for a purpose relating to trafficking in that plant. The maximum penalty for this offence is therefore 1 year of imprisonment or a penalty of not more than 20 penalty units or both.[7]
6. Prior to the commencement of the trial, Wayne Webber, you were also arraigned on Indictment No. Q10353112, a single charge of possession of a drug of dependence, namely methylamphetamine. You also entered a plea of guilty to this charge.
7. I am satisfied on the balance of probabilities that the offence was not committed by you for any purpose related to trafficking in a drug of dependence. Therefore, the maximum penalty for this offence is 1 year imprisonment or a penalty of not more than 30 penalty units or both.[8]
8. Wayne Webber, you have also admitted your prior criminal history.[9]

1. Given the jury's finding of guilt, the evidence adduced at trial is the factual basis for sentence. I will provide a brief summary of those circumstances:
2. On 24 January 2024, complainant, Scott Blakey was at his home at Southgateway, Langwarrin. Scott Blakey had recently been involved in an intimate relationship with Erin Murphy, the estranged wife of Allan Murphy. Ms Murphy contacted Allan Murphy earlier that day and told him that Mr Blakey had mistreated her and he learned that she had been involved in an intimate relationship with the victim.
3. Allan Murphy drove in a car with Wayne Webber and another unknown male to Scott Blakey's home. He armed himself with a baseball bat and entered Blakey's home by smashing a locked metal security door at the front of the home. Prior to entry he smashed multiple windows of the home and once inside smashed Blakey's TV.
4. Mr Blakey's internal CCTV unit captured the subsequent altercation inside his living room and kitchen area. Blakey was alerted to a group of men outside his home by the sound of smashing glass. As Murphy entered, Blakey armed himself with a large kitchen knife. After smashing Blakey's TV, Murphy began to strike Blakey with the baseball bat. Blakey defended himself using the knife and Murphy dropped the baseball bat. As the two men wrestled, Webber entered, picked up the baseball bat and began to strike Blakey. Murphy got away from Blakey and left the premises.
5. Webber entered the home after Murphy and was followed by Murphy's son and another male.
6. As Murphy left the home he smashed windows on Blakey's utility.
7. Murphy can be heard yelling on the CCTV recording saying "Where are you cunt?", "You fucking rat", "I swear I'm going to fucking kill you cunt", and "Where the fuck are you cunt?" as he enters and attacks Blakey.
8. Webber raised a defence of self-defence of another. The jury found him guilty by a majority, of the charge of common assault.
9. Murphy sustained knife wounds to his upper body. Blakey suffered bruising to his head and required stitching to the webbing of his hand.
10. Charge 6 of common assault against Webber was put on a complicity basis by the prosecution. I directed the jury as follows:

In this case, the prosecution allege that Allan Murphy and Wayne Webber applied force to Scott Blakey when they hit him with a baseball bat. Webber acted to "back up" and to intimidate Blakey. > > Counsel for Mr Webber acknowledged that Webber hit Blakey, but submits that he only did so after he became aware that Blakey had a knife, when Murphy and Blakey were wrestling.

11. Having found Webber guilty of the charge of common assault which was put by the prosecution on a complicity basis, the jury must have concluded that the prosecution had established beyond reasonable doubt that the defence of self-defence was not available to Mr Webber.
12. Given the jury's acquittal on the first charge of home invasion, they must have concluded that the co-accused did not form a common intention to assault prior to Webber entering the house, but acted to assist his co-offender once he entered the premises. Webber participated in Murphy's assault of the victim upon his entry into the living room and kitchen area. He picked up the baseball bat dropped by Murphy as he struggled with the victim, whilst the latter was still armed with a knife. Webber's participation in the combined assault of Blakey, consisted of striking, or attempting to strike, Blakey's body as Murphy was grappling with the victim from behind. Webber's assistance does not extend to Murphy's acts prior to Webber's entry.

1. Mr Murphy, on 25 January 2024, police searched your property at Larch Street, Langwarrin. They located 6 cannabis plants in a storage area of a rear shed growing in a hydroponic cultivation system. There were also remnants of a hydroponic cultivation system just inside the door to the shed. The cannabis plants were seized. The prosecution does not allege the cultivation was for the purpose of trafficking.

1. Mr Webber, on 15 February 2024, police arrested you in relation to the earlier incident at Scott Blakey's house. They located a small quantity of methylamphetamine in your pocket. The prosecution does not allege that you possessed these drugs for trafficking.

1. Allan Murphy, aggravated burglary is an inherently serious offence punishable by a maximum penalty of 25 years' imprisonment. Your offending was a serious confrontational aggravated burglary of the victim's home whilst you were armed with a baseball bat. You forced open a front security door when you knew the victim was home. Your conduct was an extremely violent and confrontational act of vigilantism, motivated by revenge and punishment for the victim's involvement with your estranged wife.
2. You also shattered two panes of the front window of the victim's house, punched a hole in his tv, and struck three windows of his car using the baseball bat. These actions occurred before and after your assault on the victim.
3. Your assault of Mr Blakey occurred in the victim's own home. He was vulnerable to the extent that he was trapped in his house by the presence of Webber and other men standing outside the forced open front door. His only means of escape was to confront you, an armed offender, with a knife. The assault continued for nearly 60 seconds. Given the victim's actions to defend himself, you dropped your weapon, but continued to assault him by grappling with him, until and whilst Mr Webber came to your aid. Mr Blakey suffered non-serious injuries including a stab wound to his right hand, and a small scalp haematoma. Other than for the charge of assault, you will not be sentenced on the basis that you acted in company with these other men. You were also stabbed multiple times during this confrontation.

1. Mr Webber, you will be sentenced on the basis that you participated in the assault, striking the victim after you entered Mr Blakey's home and as he was struggling with Murphy.

1. Mr Murphy, your counsel submits that your offending occurred in the context of a volatile personal situation, where your estranged wife had complained to you that she was being harassed by Mr Blakey.
2. Your offending comprises moderately serious examples of aggravated burglary, criminal damage and common assault. However, I note that the totality of your offending occurred during a single violent episode of approximately two minutes.
3. Mr Murphy, you were motivated by retribution and revenge. You took the law into your own hands while you were under the influence of drugs and alcohol. Your limited intellectual capacity reduced your ability to understand the potential consequences of your actions. Your use of substances further impaired your judgement. In the sober light of hindsight, you now regret your actions. Your moral culpability for this serious offending is reduced by virtue of your intellectual capacity and acquired brain injury.

1. Statements from primary victim, Scott Blakey, and his sister have been filed.[10] Mr Blakey's psychologist opines that he is suffering from symptoms consistent with Depression and Post Traumatic Stress Disorder resulting from this incident.[11] Mr Blakey describes the enduring psychological, emotional, social and financial impact which your offending has had upon not only himself, but also his close-knit family. He has had to move away from his house and the area he had settled in a quest to restore his sense of safety.

1. Mr Murphy, six cannabis plants were located at your property when it was searched following your offending against Mr Blakey. Those plants were not weighed. Yours is a low-level example of that offence type.

1. Allan Murphy, you are 44 years old and the father of two children, aged 16 and 18. You had a good relationship with your late mother, who passed away in 2005. You told Dr Yamin that you had a "good upbringing".[12] However, your father died before you were born and you grew up caring for your disabled brother. You experienced significant difficulties at school with reading and writing, and finally left school in Year 8.
2. You have long standing issues with anger stemming from your perceived need to protect your brother. You had behavioural issues at school and were frequently suspended.
3. You have had a strong working history, having run a successful concrete pumping business and more recently having undertaken part time work in labouring and landscaping.
4. You have no prior criminal convictions.
5. Following your mother's death, you experienced a significant decline marked by an escalation in your substance use. You report using substances at the time of the alleged offence and were continuing to use prior to your incarceration.

1. The jury returned their verdict on 17 June 2025, and this matter was adjourned for plea.
2. A Neuropsychological Report of Dr Sami Yamin dated 19 August 2025 was tendered on behalf of you, Mr Murphy.[13] An amended report bearing the same date was filed and Dr Yamin gave evidence and was cross-examined at Court.
3. Mr Murphy, Dr Yamin opined:[14]

(i) That you function at an extremely low range with an IQ of 67, which falls within the criteria for intellectual disability;

(ii) You meet the criteria for Major Depressive Disorder and Anxiety Disorder;

(iii) Your real prospect of imprisonment exacerbated and in part contributed to your moderate depression and anxiety;

(iv) The combination of your extensive drug taking, alcohol abuse and issues with anger formed a significant part of the cause of your offending;

(v) You were aware that your offending was wrong and your conduct was stupid;

(vi) That at the time of your offending your moral culpability was reduced, due to a limited ability to understand consequences;

(vii) That your mental health conditions will result in difficulty in managing some of the challenges associated with imprisonment;

(viii) That there is a risk that imprisonment will have a significantly adverse impact upon your mental health; and

(ix) You were genuinely remorseful for your offending.

1. There is no independent support of your past medical and psychiatric history other than your self-report to Dr Yamin.
2. Dr Yamin described your offending as of a nature that were low level and impulsive. Such a description is clearly at odds with the nature of the charges with which you were found guilty, the evidence and the objective gravity of your offending. Dr Yamin's report continued to contain factual inaccuracies, even after he was given an opportunity to correct them.[15] Dr Yamin also sought to draw conclusions about the application of legal principles based upon his assessment.[16] Such conclusions are properly the role of the Court, rather than a Forensic Psychologist. These factors reduce the weight that can be placed upon the opinions expressed by Dr Yamin in his report and his evidence given in Court.
3. A Community Corrections Order (CCO) assessment was conducted upon you, Mr Murphy, which included a mental health report.[17] The author reported:

"It is the writer's impression that Mr Murphy is a low functioning individual who presents with psychosocial stress related to his incarceration. He also has a long history of substance use and may be vulnerable to relapse when he returns to the community. However, Mr Murphy does not appear to suffer from significant mental health issues. This is inconsistent with the impressions provided in the Neuropsychology Report dated 19.08.2025 - the writer believes that Mr Murphy adjusted to the prison lifestyle and his mental state improved since his neuropsychology assessment."

4. The author of the CCO Assessment Report stated:[18]

"Mr Murphy did concede that taking the law into his own hands was stupid and that he regrets how he handled the whole thing. Mr Murphy also admitted to being under the influence of drugs and alcohol on the night of the offending but had trouble remembering what he had done."

5. Mr Kozlowski submitted that on the basis of Dr Yamin's report, the Court should conclude:

(a) that at the time of your offending, your moral culpability was reduced, due to a limited ability to understand consequences, such that the first limb of Verdins applies;[19]

(b) Your mental health conditions will result in a difficulty managing some of the challenges associated with imprisonment, such that the fifth limb of Verdins applies;[20] and

(c) There is a risk that imprisonment will have a significantly adverse impact upon your mental health, such that the sixth limb of Verdins applies.[21]

1. Mr Murphy, by all accounts you have adapted well to prison life. You have been alcohol and drug free since being in custody. You have focused on fitness and have managed to lose a substantial amount of weight. You have been working as a cleaning billet and completed a number of courses. You have not presented with any behavioural or disciplinary issues.
2. Having regard to these considerations, I cannot be satisfied that limbs one and six in Verdins case are enlivened here.
3. However, whilst I cannot be satisfied that there is a risk that imprisonment will have a significantly adverse impact upon your mental health, Mr Murphy, your sentence ought be sensibly moderated to a limited extent by virtue of your low IQ, acquired brain injury, and your moderate depression and anxiety, as the existence of those conditions at the time of sentencing may mean that the sentence of imprisonment may weigh more heavily upon you than a person of good health.

1. Mr Murphy, your counsel did not persist with his submission that your background enlivens the principles in the case of Bugmy v The Queen.[22]
2. Instead, I have regard to the impact your early childhood experiences had on your life in a general sense, but note that you have led a constructive and positive life. You have worked, married, had children and reached the age of 44 without a criminal record.

Specific additional sentencing considerations - Murphy

1. Mr Murphy, you will also receive a significant sentencing discount because you pleaded guilty for the offences with which you fall to be sentenced.
2. Given the specific context in which your offending took place, your age, good work history and lack of prior convictions, I also conclude you have sound prospects of rehabilitation.

1. Wayne Webber, you are 38 years old. You are engaged to your partner of 12 years, Danielle, and have two children together, aged 8 and 5 years old.
2. You are a 'jack of all trades', undertaking mainly plumbing and concreting work, and also completing fencing and landscape gardening with your father.
3. Post offending, you have moved from Langwarrin to South Gippsland in order to have a fresh start for yourself and your family. You are about to commence building a 'tiny home' on your mother's property.
4. You have expressed that life is "better in the country" and your kids are happier, with family time involving fishing, football and various outdoor activities. You are also helping support your 66-year-old mother, who suffers from health problems including cholesterol and blood pressure issues.
5. You have had a history of substance abuse that you have taken steps to rectify. Your treating Psychiatrist, Dr Farazdak Al Wahab in his earlier letter dated 28 March 2023, described your "long history of untreated ADHD, which has led to an increase in anxiety substance use as self-medicating." At that time, you had recently been diagnosed with ADHD.[23]
6. In his recent letter dated 8 August 2025, Dr Al Wahab noted that you "continue to be abstinent from illicit substances and alcohol" and there has been a "difference in (his) presentation."[24] He has also started prescribing you medication to treat your depression and psychotic symptoms.
7. You had a major motorcycle accident at the start of 2025, which required you to have several surgeries, and to take time off work for majority of the year.

1. Mr Webber. your long-time partner, Danielle, describes in her reference to the Court, your devotion as a father and partner and the crucial role you play in your children's lives.[25]

1. Mr Webber, while you did not plead guilty to the charge with which you were ultimately found guilty by the jury, I accept that the Crown position prior to trial was that they would only resolve on the basis of a plea to the charge of home invasion, of which you were subsequently acquitted. Whilst you will not get a discount for a plea of guilty, I so have regard to these overall circumstances.
2. There has also been a delay of approximately 18 months between the time these charges were laid and the verdict, and a subsequent delay to sentence today, not of your making Mr Webber. You have had this very serious matter hanging over your head for a protracted period. But you have used this delay to take positive steps to relocate away from the location of your offending and to address your alcohol and drug issues. This enhances your prospects of rehabilitation which I take into account and consider that delay is a mitigating factor.

1. Mr Webber, you do have a lengthy criminal history principally for driving and drugs related matters, but you have no priors for violent offending.

1. Offenders who are party to the same offence, all things being equal, should receive the same sanction. However, as Gibbs CJ in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 stated "...but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."[26]
2. Mr Murphy, you were the dominant aggressor in this incident. You were motivated by retribution. Mr Webber, the jury found that you played a significantly lesser role in this offending, finding you guilty of the common assault only. Mr Webber you have a lengthy prior criminal history, and your offending breached a Community Corrections Order imposed upon you in 2023. However, I note that you do not have priors for offences involving actual physical violence. By comparison, Mr Murphy, you have no prior criminal record. Whilst principles of general deterrence, just punishment, denunciation and community protection are relevant sentencing principles in relation to both of you for this offending, your differing roles justify substantially different sentencing outcomes.

1. In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct and deterring you and others from engaging in similar offending, with the interests the community clearly has in seeking to ensure as far as is possible, that offenders are rehabilitated and are reintegrated into society.[27] I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances. The sentence must be no more than is necessary to satisfy those various objectives of sentencing.
2. I have also taken into account current sentencing practices for the offences to which you have pleaded guilty.

1. Mr Webber, the prosecution agrees that it is open to the Court to impose a non-custodial disposition, including a fine, in relation to the charges you face.
2. Mr Murphy, the prosecution submits that given your significantly greater role in this offending, a head sentence with a non-parole period is called for in relation to your offending against Mr Blakey. They agree that a non-custodial disposition, such as a fine, with or without conviction is open to the Court in relation to your charge of cultivating cannabis.
3. Mr Murphy, your counsel submits that a combination sentence involving a significant Community Corrections Order would be within range.
4. Having regard to current sentencing practices for what was a confrontational aggravated burglary, carried out for vigilante purposes to assault the occupant of a house, even having regard to the relevant mitigatory factors in your case, Mr Murphy, such a disposition is wholly outside the range of appropriate sentences in your case.

1. Allan Murphy, I sentence you as follows, commencing with the main indictment.

On Indictment No. Q10214928, I sentence you as follows:

• Total Effective Sentence (State):
• Non-Parole Period:

1. Pursuant to s 18 of the Sentencing Act 1991,[28] the period of 108 days of pre-sentence detention (not including today) is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the Court records.

Section 6AAA Declaration

1. Pursuant to section 6AAA of the Sentencing Act 1991,[29] I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of 8 years' imprisonment with a non-parole period of 6 years.

1. Wayne Webber, on charge 6 of common assault, I convict you and fine you the amount $5,000.00.
2. On Indictment No. Q10353112, I sentence you as follows:
3. On charge 1 of possession of a drug of dependence, I convict you and fine you the amount $250.
4. That is a total fine of $5,250.00, which I will refer to Fines Victoria for collection and management.

1. I make the two disposal orders sought by consent.
2. Mr Murphy, I make a disposal order in relation to the 6 cannabis plants seized from 16 Larch Street, Langwarrin, on 24 January 2025.
3. Mr Webber, I make a disposal order in relation to 1 plastic bag containing grey powder, found to be methylamphetamine.

[1] Crimes Act 1958 (Vic) s 77.

[2] Ibid, s 197(1).

[5] Ibid, s 31.

[7] Drugs, Poison and Controlled Substances Act 1981 (Vic) s 72B.

[9] Criminal Record of Wayne Steven Webber, as at 16 June 2025.

[10] Victim Impact Statement of Scott Blakey, dated 30 July 2025; Victim Impact Statement of Erin Blakey, dated 30 July 2025.

[11] Michael Warner, Psychological Report re Scott Blakey (26 June 2025).

[12] Dr Sami Yamin, Neuropsychological Report re Allan Murphy (19 August 2025), page 2.

[15] Ibid, see page 1, "Mr Allan Murphy... at the time of the assessment was pleading guilty to a charges of Home Invasion...".

[16] Ibid, pages 4-5, i.e. the applicability of Bugmy and Verdins principles.

[17] Martin Markus, Senior Mental Health Clinician, MHARS Forensicare Report re Allan Murphy (27 October 2025), pages 2-3.

[18] Oliver Bott, Department of Justice, Community Correction Order Assessment Outcome Report re Allan Murphy (27 October 2025), page 2.

[19] R v Verdins [2007] VSCA 102, [32].

[22] Bugmy v The Queen [2013] HCA 37.

[23] Dr Farazdak Al Wahab, Letter from Psychiatrist re Wayne Webber (28 March 2023).

[24] Dr Farazdak Al Wahab, Letter from Psychiatrist re Wayne Webber (8 August 2025).

[25] Character Reference from Danielle Stoner, dated 16 August 2025.

[26] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, [3].

[27] In accordance with the purposes set out in Sentencing Act 1991 (Vic) s 5.

[28] Ibid, s 18.

[29] Ibid, s 6AAA.