R v Murphy

District Court of NSW|2019-08-30

Solicitors: C Hurford (Crown) P Grant (Medcalf Grant Lawyers) (Offender) File Number(s): 2017/00166816

SENTENCE

HIS HONOUR: The offender stood trial before a jury at Penrith on an indictment that contained a single count, which alleged that on 2 June 2017 at Lethbridge Park he caused grievous bodily harm to Dean Beale, with intent to cause grievous bodily harm to Mr Beale. The jury found the offender not guilty of that count but convicted him of the statutory alternative charge of recklessly cause grievous bodily harm to Mr Beale in company with another person. That is an offence under s 35(1) of the Crimes Act. It has a maximum penalty of 14 years' imprisonment and there is a five year standard non‑parole period.

Assessment of Objective Seriousness

I turn then to my assessment of the objective seriousness. There was clearly a level of prearrangement between the offender and the co‑offender, Dunn, to assault the victim. On the evidence in the trial, the assault appears to be an unprovoked one. The jury's verdict is consistent with this offender not knowing that Dunn had a hammer and intended to strike the victim to the head with it and cause really serious injury. I note in that regard that the jury convicted the offender of recklessly cause grievous bodily harm in company with Dunn. That required the jury to be satisfied beyond reasonable doubt that the accused participated in the joint criminal enterprise to assault the victim, and realised that actual bodily harm may be caused to him.
I note the fact that Dunn had effectively concealed the hammer when he entered the premises when the assault occurred is consistent with the offender not knowing that he possessed it. I note also that this offender interjected to stop Dunn continuing with his assault, fortunately for the victim. The offender himself struck the victim with his fist to the face once, and that was clearly a cowardly act. The victim sustained severe and life-changing injuries as a consequence of the offence, although it seems clear that the serious nature of the injuries was a result of being struck in the head by the co‑offender with a hammer.
I have also had regard to the fact the offender is criminally liable for the offence on the basis of the doctrine of joint criminal enterprise. While each participant in a joint criminal enterprise is equally responsible for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, a particular participant's level of culpability is to be assessed by reference to the conduct of that particular participant. I consider overall that given the offender's limited role in the offence, and my finding that he did not know Dunn intended to strike the victim to the head with a claw hammer, the objective seriousness of his offence is below a notional midrange offence, although clearly not at the very bottom of the range.

Offender's Subjective Case

I turn then to the offender's subjective case. He is currently 24 years of age and was 21 at the time of the offending. He was at the time of the offence a relatively young adult offender and remains so now. The principles associated with sentencing a young adult offender have application here. Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing a young adult offender.
He has a criminal history dating back to when he was a juvenile. As an adult he served sentences of imprisonment for break, enter and steal, possess house breaking implements and armed robbery. He has something of a record for violent offending which disentitles him to leniency in this sentencing, but it is not an aggravating factor.
On 4 July 2016 he was sentenced for an offence of armed robbery and received in this Court a sentence of three years' imprisonment with a non‑parole period of 16 months. The sentence commenced on 4 December 2015 and expired on 3 December 2018. He was released to parole on 3 April 2017. The current offence was committed within three months of being released to parole. The offence was also committed while on a s 9 bond for an offence of being carried in a stolen car without the consent of the owner. That bond has been called up and the papers are before me. The fact the offence was committed while on conditional liberty is an aggravating factor, under s 21A of the Crimes (Sentencing Procedure) Act.
As a consequence of his involvement in the current offence, his parole order was revoked. The breach report also noted that he had at that time an unsatisfactory response to parole supervision. He was returned to custody on 3 June 2017 where he has remained. He has served the balance of his parole of the armed robbery sentence during the period 3 June 2017 to 4 December 2018. He has been in custody solely in relation to the current matter since 4 December 2018.
I have been provided with a sentence assessment report dated 26 August 2019 prepared by Community Corrections. I have also before me a document under the hand of Reverend Paul Hannah, and a letter from the offender's elderly grandfather who was instrumental in the offender's upbringing. I note also that his grandfather regularly attended the trial in Penrith earlier in the year, supporting his grandson. He is not here today, only because of his age, the inclement weather and the distance the Court is from his home. I also have a document and oral evidence from the offender's aunty, Melanie Marne.
Prior to his incarceration, the offender was residing with his grandfather and aunt. The offender was abandoned by his father at an early age and his grandfather took over the care of his daughter's children. In his letter to the Court, the grandfather describes the offender as quite a lovely child; "He gave me no trouble whatsoever, he was very obedient, he was the best of them all".
His aunty gave evidence today of the impact the return of the offender's mother had when he was a teenager, given her addiction to illicit substances, which then exposed the offender to illicit substances.
The offender was in receipt of Centrelink benefits prior to his incarceration and has no history of employment. In terms of his drug use which I mentioned a moment ago, he was using cannabis and ice on a daily basis at the time of the offence. He stated to the Community Corrections officer that most of his associates who were living in his community are involved in drug use and he would like to live elsewhere upon his release. He admitted in the sentence assessment report to using non‑prescribed buprenorphine during this period in custody, something which is very common, unfortunately, amongst young inmates.
The offender expressed his willingness to participate in an intervention to address his substance abuse and mental health issues. Clearly drug use is at the heart of his offending. The sentence assessment report does not address his psychiatric history per se, however it is stated that the offender has a history of difficulty with regulating his emotions and aggressive outbursts and draws attention to his substance abuse. He has been charged with four institutional conduct charges during his recent period of incarceration and he attributed those to being affected by the loss of a family member whilst in custody.
A breach report was issued during his last period of supervised non‑parole. The offender's response to supervision at that time was considered unsatisfactory. The offender stated that his social influences and substance use led to his involvement in the offending. He denied in the sentence assessment report taking part in the offence placed blame onto the co‑offender, claiming that he stopped the co‑offender from harming the victim any further. His intervention to prevent further harm to the victim is something I accept, as indicated earlier. His denial in taking part in the offence affects my assessment, however, of his level of remorse, but of course he is entitled to maintain his innocence. Despite that denial, the offender expressed that he felt sorry for what had happened to the victim.
The Community Corrections officer assessed the offender at a medium to high risk of reoffending. The offender reported to the author of the sentence assessment report that he experiences untreated back pain that would impair his ability to work upon release. Given the content of the sentence assessment report, there seems to be essentially no evidence of remorse, although I have little doubt that the offender has some sorrow concerning the extent of the injuries the victim suffered.

Sentence

Given the offence was committed shortly after being released to parole and the content of the sentence assessment report, his prospects of rehabilitation are, in my opinion, no better than guarded.
There is not strictly speaking a parity issue here, as the co‑offender pleaded guilty to a more serious charge with a higher maximum penalty and the co‑offender was clearly more significantly involved in the attack on the victim. The co‑offender also was older, had a more significant criminal record and he, too, had been on parole for a short period of time when he committed the offence that he was sentenced for by Hanley DCJ. I note the sentence Hanley DCJ imposed on the co‑offender, but for the reasons I have stated, parity is not really a relevant consideration here.
The sentence I impose will be partially accumulated upon the balance of parole he has already served. He remains relatively young and clearly given his problems with illicit substances in the past, will require intensive supervision in the community once released to parole. His prospects of rehabilitation, in my opinion, will be assisted if he has a longer period on parole than that provided by the statutory ratio and for those reasons, I propose to make a finding of special circumstances when fixing the non‑parole period.
I outlined earlier his recent custodial history. I note he has been in custody since his arrest on 2 June 2017 and I noted earlier the balance of parole he served during that time. I note the offender's parole was revoked due essentially to the commission of the subject offence. In the circumstances, I propose to commence this sentence from 3 March 2018.
I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. People who commit such senseless, unprovoked acts of serious violence must receive significant sentences to deter not only the offender concerned, but others from committing such offences. Both general and given the offender's record, personal deterrence, must be reflected in the sentence I impose. Clearly the only appropriate sentence is one of fulltime custody. The maximum penalty and standard non‑parole period have been taken into account as legislative guideposts. It will be seen I have departed from the standard non‑parole period because of my assessment of the level of objective seriousness and my finding of special circumstances.

Orders

Mr Murphy, you are convicted of the offence that the jury found you guilty of. You are sentenced to a term of imprisonment consisting of a non‑parole period of one year and eight months and a balance of term of one year and four months. That is a total sentence of three years' imprisonment with a non‑parole year of one year and eight months. It commences on 3 March 2018 and expires on 2 March 2021 and the non‑parole period expires on 2 November 2019.
The earliest date you are eligible to be released to parole is the date of the expiry of the non‑parole period, which is 2 November this year. Whether you are in fact released to parole that day is a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison, in determining whether you are released then or on another date. If you are released on 2 November this year, you will need to ensure you fully comply with the conditions of the parole that are set and ensure that you do not commit further offences unless you wish to return to custody.
No action is taken on the breach of the s 9 bond. It forms part of the aggravating circumstance of committing the offence on conditional liberty.
It is three years with a non‑parole period of one year and eight months. It commences on 3 March 2018, the sentence expires on 2 March 2021, and the non‑parole period expires on 2 November 2019. I do not think there was anything left on a 166 certificate, it was only the bond that I had to deal with and I have dealt with that in the way I have indicated. Mr Murphy will need to go downstairs, thank you.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2019

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