Police v Murphy [2025] ACTMC 21

[2025] ACTMC 21

Police v Murphy [2025] ACTMC 21 | Case summary | Zoe

[55]

As of the date of the offence, 18 May 2024, the offender was a 23-year-old full class C licence holder. According to his own account, on 17 May 2024 the offender went out drinking with friends. He consumed four schooners and two-pint glasses of 'Hard Solo' between 5pm and 11pm. The offender got an 'uber' back to his home in Wright and consumed an additional five cans of 'Hard Solo' before going to sleep for about six hours. The offender woke up on Saturday morning and made the decision to drive to Casey in his blue Holden Commodore.
At about 8am on 18 May 2024, Dr Adam Palmer was riding his bicycle in a marked bicycle lane adjacent to the easterly lanes of Cotter Road, Weston Creek, ACT. Dr Palmer was wearing a red helmet. The details of this portion of road are set out in the summary provided to the Court and the facts will not be fully recited here. In summary, about 16 metres before the slip lane from the Cotter Road onto the Tuggeranong Parkway, the offender's vehicle veered into the bicycle lane which was demarcated with an unbroken white line.
The offender's vehicle collided with Dr Palmer's bicycle. Dr Palmer was thrown onto the windshield of the vehicle and then projected onto the ground. Both the car and the frame of the bicycle were damaged.
A passenger in a passing vehicle, Dr Anne Collins, stopped to render assistance. Fortunately, she was a medical practitioner with advanced training in emergency medicine. Dr Palmer was observed to be lying face up, not moving at all. He was unconscious and struggling to breathe because his airway was obstructed.
The offender exited the driver's seat of the vehicle with no shoes on. He slurred his speech and said to Dr Collins 'I'm really sorry. This is my fault.'
Police and ACT Ambulance Service arrived at the collision site shortly after the incident occurred. The offender was observed to be intoxicated. The Police administered a roadside screen for alcohol. The offender was taken in custody to the Woden Police Station for the purpose of breath analysis.
At 9:06am, the offender's blood alcohol was tested and he was recorded as being at Level 3, or 0.142 grams of alcohol for every 210 litres of breath.
While at the Woden Police Station, the offender made various comments to the Police including saying 'motorbikes sneak up behind you' and 'obviously I feel regret.' The admissibility of two further comments ('the comments') is in dispute, specifically:

[66]

The maximum penalty for the offence is 10 years. This 'serves as an indication of the relative seriousness of the offence', as per Markarian v R [2005] HCA 25; 228 CLR 357 at [31]. This Court should consider where the offence sits on a spectrum of offending, but it is not necessary for the Court to express a finding of objective seriousness 'as a point on a hypothetical range', as held by CJ McCallum in DPP v Moala (No 3) [2023] ACTSC 306 at [22].
The offender's blood alcohol level was 0.142, being in the higher portion of a Level 3 reading, which is itself at the higher end of the spectrum. The offender has entered a guilty plea because he was under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle and because of his negligence in driving.
The offender submits that there is a reduction in culpability because the driving occurred in the morning rather than at night. I do not see any reason why his moral culpability is reduced for that reason. It appears the offender had caught an 'uber' home the night before, demonstrating some insight into whether he could safely drive, but failed to make safe decisions about driving the next morning.
The distance travelled by the time the collision occurred was relatively short, being a three or four minute drive from the offender's home in Wright, but his intended travel was a greater duration as he planned to drive to Casey, a significant distance. There is no evidence of any prior erratic driving on the day and the offender draws my attention to an absence of other aggravating circumstances.
The seriousness of the injury is relevant to the objective gravity of the offence, as per Tzanis v R [2005] NSWCCA 274 at [13], also considered in R v Greaves [2014] NSWCCA 194 at [28]. The injuries were to various parts of Dr Palmer's body. The impact on Dr Palmer was very significant and required a considerable period of hospitalisation and rehabilitation. Importantly, his brain was impacted by a severe traumatic brain injury. I infer that Dr Palmer is well educated, as his title suggests, and that his injuries have had an impact on his ability to work. There is some uncertainty about whether these injuries had resolved at the time of the sentencing hearing. Overall, I assess the seriousness of the offending as being at the upper part of the mid-range.

[80]

Since the offending in 2025, the offender has been in a relationship. His partner has a young daughter. In evidence on 8 October 2025, the offender described living in his 'partner's family's home' saying that 'me, my partner and her daughter live there.' He asserted that his 'in law's' 'family circumstances have changed and they could no longer afford to pay their mortgage so that's why I've started paying rent there.' The offender conceded he did not have full information about the family's financial position. He also asserts in his letter to the Court dated 7 October 2025, that his incarceration will 'create serious hardship for my family as I am heavily involved in day-to-day parenting, school runs, activities and general caring for my partner's daughter.' This was not the subject of any detailed oral evidence.
On 20 November 2025, the Court received a letter from the offender's father-in-law, Robert Sinclair-Smith, and additional documents from the prosecution.[2] It is clear that the offender lives in a property owned by his 'in laws,' but they reside in another bigger property and he pays below market rent at that property. Notwithstanding that this material provides significant context around the offender's living situation, I accept that there may possibly be an impact on his partner and daughter if the offender could not pay the rent, but also that, in the past, his 'in laws' have assisted their daughter and granddaughter with accommodation and would likely assist with practical matters if the offender was incarcerated.
In evidence, the offender stated that 'I've been seeing a psychologist every - almost every week.' The Court has been provided with a letter from Dr Beth Sinclair, clinical psychologist at Sphere Psychology dated 7 October 2025 which confirms that the offender 'has attended 24 sessions of psychological treatment' in relation to alcohol use and emotional resilience.
The offender runs a small business called J & N Roofing with a business partner and employs two people (the offender's brothers). In the offender's opinion, if he was taken into custody '[t]he business would most likely have to shut down.' He later conceded, in cross-examination, that his business partner could provide employment for the two other employees. Later clarifying in re-examination that he and his business partner 'do everything, pretty much. Without me there, it's just not- it's not viable to have the workplace to complete enough work to remain paying wages, insurances and all that...'. He further states that there would be an impact on his immediate family unit as he is the 'main income provider.'
On 20 November 2025, the offender's business partner at J & N Roofing, Nathan Finister, provided evidence that the offender is responsible for all administrative and operational aspects of the business, and that he, Mr Finister, 'always struggled with stuff like that' and wouldn't be able to do it nearly as well. He gave evidence that the offenders incarceration 'even [for a] week...would create a lot of troubles for us' noting the business 'would be on a downward slope without him.' Mr Finister conceded he had not sought assessment from an accountant or financial adviser. He also stated that the offender received a salary but worked beyond what was required for that wage, and so it would be expensive to replace the services he provides.
There has been a period of about 18 months since the offending, with no subsequent offending.

[82]

This Court must take into account any demonstrated remorse, pursuant to s 33(1)(w) of the Crimes (Sentencing) Act 2005 (ACT); as per Roff v R [2017] NSWCCA 208 at [25].
At the time of the offence, the offender said to Dr Collins, 'I'm really sorry. This is my fault.' At this time the offender was significantly intoxicated. At the station, the offender acted in an insensitive and callous manner when he was intoxicated and unaware of the injuries caused to Dr Palmer because of his actions.
The offender submitted a letter of remorse to the Court dated 7 October 2025. During the sentencing hearing, it became apparent that he did not write the letter himself. The offender gave evidence that his 'partner and I were sitting together and I was guiding her through writing it. She helped me write it... She typed it up. I guided her through it.' He later said his partner 'would put it into presentable sentences.' The offender described difficulties putting things into words generally. Ultimately, this means that although there is a letter which the offender has read and endorses, it is not clear whether each line was in his own words or suggested and adopted by him.
In his letter dated 7 October 2025, the offender describes being sober since January 2025, he writes that he wishes to take responsibility and live a 'sober, meaningful and responsible life' where he ensures nothing like this will ever happen again.
The offender elected to give evidence, describing that he 'feel(s) horrific about that whole part of my life, how my actions have affected [the victim].' The offender was cross-examined by the prosecutor, including about his understanding of Dr Palmer's injuries. The offender provided the Court with a summary of those injuries, demonstrating some understanding of the impact of his driving on Dr Palmer.
The offender has had some correspondence with Dr Palmer. He elected to engage in the Restorative Justice process voluntarily. He wished to speak to Dr Palmer and tell him 'how sorry I am and that I'm glad he's doing better. Yes, how sorry I am for the impact on him and his- his wife.' On 4 December 2025, the Court received a confirmation that the Restorative Justice conference had not gone ahead.
The Court heard on 8 October 20025 that the offender has paid for the damage to the victim's bike in the amount of $5,500 which he says was '[b]ecause I was responsible.' Subsequently, an email was produced to the Court detailing correspondence from Dr Palmer to the offender's lawyers seeking compensation for the cost of the bike, and raising the prospect of commencing ACAT proceedings if payment was not made. It appears, although it is to the offender's credit that he paid, there may have been proceedings taken to compel payment if it was not forthcoming. This casts some doubt over whether the offender's actions were solely motivated by remorse.
I have also read a letter from the offender's mother, Gwili Holme, who states that her son 'bitterly regrets his terrible decision to drive.' She says the offender has 'talked many times about seeing Adam's face and wanting to help at the scene'. She confirms that, from her perspective, the offender 'has totally given up alcohol.'
The offender's partner, Montanna Sinclair-Smith, has also written a letter to the Court. In that letter, she confirms her perspective that the offender has remained 'completely sober' since January 2025. She states that she believes that the offender carries genuine remorse and distress about the impact of his actions on Dr Palmer.
I accept that the offender is remorseful. Although he made insensitive and callous comments on the day, he was quite intoxicated. Since that time he has shown some remorse, particularly in oral evidence and a willingness to participate in Restorative Justice. In Roff v R [2017] NSWCCA 208 at [25], the Court held that 'an offender ... may anticipate a lesser sentence than a co-offender who has not been found to be remorseful'. A finding that a person is truly remorseful is a "major factor" influencing prospects of rehabilitation, as per Taylor J in DPP v Monaghan [2024] ACTSC 183 at [32].

[108]

Ultimately, I have to balance varied and competing sentencing principles. This case is, in my view, on the cusp of those categories where consideration can be given to sentence of imprisonment that does not involve actual imprisonment. No sentence other than a term of imprisonment is warranted, that is a sentence of last resort. In my view, the appropriate sentence, reflecting an instinctive synthesis, is a period of 35 months. I have reduced this period by 20 per cent on account on the plea of guilty, reducing it to a period of 28 months. I had arrived at this term, which may be regarded as lengthy compared to some other cases, primarily because of the seriousness of the injuries sustained, the need for general deterrence and specific deterrence of this offender who has twice, within the space a few years, as a relatively young person, failed to act with regard for his fellow citizens when he got behind the wheel of a car while intoxicated.
Given that this period exceeds the period of two years for which an ICO may be imposed without further consideration, I have considered the matters in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT). With some reservation, I am of the view that an ICO is nonetheless appropriate given the harm to the victim, risk posed by the offender and culpability of the offender. An ICO would allow the offender the benefit of serving a period of imprisonment in the community and allows the community to make him subject to strict conditions to ensure that for a lengthy period, he addresses the factors which underpin his offending, particularly his alcohol use and mental health. Corrective Services have appraised the offender as a low risk of reoffending and noted that he has achieved some stability in the community since the offending. I accept that others are dependent on him. It is ultimately in the community's interest that the offender be rehabilitated. Although the 'typical' perpetrator of such an offence is a relatively young person, a sentence of an ICO allows the Court to take into account the offender's relative youth, and efforts made at rehabilitation while still imposing a strict and structured sentence which achieves punishment by virtue of ongoing restrictions, supervision and accountability for his decisions in the community.
The minimum period of disqualification in this case is 12 months. This is, in these circumstances, quite inadequate given the relatively high blood alcohol reading, the fact that the offender has previously been convicted of a drink driving offence, and the level of harm caused by the culpable driving.

[123]

The first ground of objection to the admission is that it is not relevant. This Court should only admit evidence that could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue, as per s 55 of the Evidence Act.
The prosecution submits that the conduct of the offender and the comments he made are relevant to an assessment of the offender's 'immediate remorse.' The prosecution concede that the offender has demonstrated remorse to the Court between the offence and the date of sentence. The offender submits that the comments were made to another person who cannot be heard on the recording and that the offender was in shock and unaware of the injuries sustained by Dr Palmer at the time of the comments. The prosecution submits that it would be unfair to allow the offender the benefit of the comments he made at the roadside which demonstrate some acceptance of responsibility without also taking into account the comments at the police station which the prosecution submits had a 'victim blaming overtone.' An assessment of the offender's attitude and remorse may be relevant in sentencing him. For this reason, I would not exclude the evidence on the basis of 'relevance'.
The second ground of objection is argument by the offender that he was not subject to a caution at the time of the comments. Although he was not cautioned at the time of the comments, the offender was not answering questions in relation to an investigation. In those circumstances the statements were not made 'during questioning' and no caution was required; as per s 139 of the Evidence Act.
A third ground of objection relates to the impropriety of the police recording the offender without warning him, such that the evidence was illegally or improperly obtained, as described in s 138 of the Evidence Act. In considering admissibility, I have had regard to the decision of Police v Eduardo Gomes Parreiras [2023] ACTMC 43 ('Parreiras'), which does not bind the Court but is instructive in considering admissibility. In that case, the Chief Magistrate considered similar objections where admissions were made and recorded where no 'caution' had been administered and in circumstances where police did not advise Mr Parreiras that he was being recorded on BWC footage (at [26]). Her Honour carefully considers the statutory scheme which governs the use of BWCs. Her Honour considers the legality of such surveillance in the context of the Crimes (Surveillance Devices) Act 2010 (ACT) and the Chief Police Officer's Crimes (Surveillance Devices) Body Worn Camera Guidelines 2022 which describes circumstances in which the use of BWC is considered by police to be overt, such that it fell within an statutory exception prohibiting recording generally, as per s 43B of the Surveillance Devices Act 2010 (ACT).
In Parreiras, Her Honour observes at [34] that:

[125]

Her Honour concludes that in circumstances where the use of BWC footage was not overt, it was not permitted as an exception to the Crimes (Surveillance Devices) Act 2010 (ACT) and ought to be regarded as being evidence which fell within s 138(1) of the Evidence Act. Her Honour notes at [38] that the admissions captured on the BWC 'were obtained improperly and in contravention of an Australian law', as per s 43B of the Surveillance Devices Act 2010 (ACT).
This case differs from Mr Parreiras' in some respects. The comments made by the offender were made at the Woden Police Station after his arrest, rather than in the community generally. The defendant, while not aware of the recording, was aware he was in police custody having been arrested after the collision. Further, the police officers were not endeavouring to engage with the offender or solicit information from him (cf. Perriara at [37]). It is also the case that the offender was advised by Officer Smorhun earlier that his BWC camera was operating and recording. However, in my view, given an explicit indication from another officer that the camera footage was being recorded, the offender would have been less likely to consider another officer was recording him without informing him of such.
Notwithstanding the identified differences between the index case and Parreiras, the use of the BWC on this occasion was, in my view, not overt in all the circumstances. It was not explained to the offender that he was subject to a recording as required by the Crimes (Surveillance Devices) Act 2010 (ACT), and as such it falls within s 138(1) of the Evidence Act. Therefore, I must not admit that evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
I must, in determining whether to admit the evidence, take into account the matters in s 138(3) of the Evidence Act. The probative value of the evidence is only relevant to the narrow question of 'immediate remorse', which is, in my view, of much lesser importance than the question of remorse, appraised overall (or of proof of an element of an offence). It is accepted that the offender was significantly intoxicated[3] which inherently reduces the probative value of any comments made by him (as discussed below). I do not regard it as a grave instance of impropriety. In my view, it was reckless, given that no police officer was seeking information from the offender but were rather assisting him with plans to leave the station. As the Chief Magistrate observed in Parreiras, the contravention is inconsistent with a right under the relevant International Covenant. No other factor is enlivened here, in my view.
The desirability of admitting the evidence is often considered in the context of the public interest in accurate fact determination and crime control. It is essentially submitted by the prosecution that in order to accurately appraise remorse, I should admit the evidence. I can, as the prosecution concede, judge remorse between the time of the offence and now. Ultimately, balancing these considerations, and particularly the lack of impropriety by police, it is my view that the evidence should be admitted.
The fourth ground of objection is that it would be unfair to admit evidence of an admission in circumstances where the offender was considerably intoxicated by alcohol. It is argued that this calls into question what was comprehended by the offender and whether his comments truly reflected his attitude towards the victim. There is some force in that point. However, in R v Nelson (2004) NSWCCA 231, in circumstances with some similarity to the index ones, Sperling J stated at [55] that intoxication did not justify exclusion and was a 'factor which the jury was well able to take into account'. Taking all the circumstances into account, in my view, it would not be unfair to use those admissions in the circumstances, and I will not exclude them pursuant to s 90(2) of the Evidence Act. Having said that, the weight that I can attach to these comments is very limited given the offender was intoxicated and the other party to the phone call cannot be heard.
Finally, the defence made a submission that I should exclude the admissions pursuant to s 137 of the Evidence Act in circumstances where, taking the factors advanced by the defence as a whole, 'it's probative value is outweighed by the danger of unfair prejudice to the defendant'. Section 137 is a mandatory provision if I am satisfied that the probative value is outweighed by the danger of unfair prejudice. Ultimately, I am not satisfied this is so, but I am satisfied that I can take into account factors raised by the defence in determining the weight to be afforded to the evidence.
Acknowledging the intoxication of the offender, I am reducing the weight I attached to the statements made by the offender at the side of the road. No party seeks that I exclude those comments, indeed they form part of the 'Agreed Statement of Facts', but the weight that I can attribute to them is reduced.

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Judgment (128 paragraphs)

Police v Murphy [2025] ACTMC 21 (4 December 2025)

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