R v Murphy

REMARKS ON SENTENCE

1. Mr Zac Murphy is for sentence in relation to two substantive offences, the first one being what was count 2 on the indictment, being an offence that on 1 August 2023 while in company with Tyler Briggs and armed with a dangerous weapon, namely a firearm, that he robbed Rhian Hughes of $150 cash and a car key. The maximum penalty for that offence is 25 years’ imprisonment. I am asked also and will take into account in sentencing for that offence another matter that is on a Form 1 document, which was previously count 3 of the indictment, being an offence of threatening to use an offensive weapon with intent to intimidate Mr Scott Reid.

2. The second substantive offence is an offence of specially aggravated break and enter and commit serious indictable offence, which itself carries a potential maximum penalty of 25 years’ imprisonment and in respect of which there is a standard non-parole period of seven years specified. There is a Form 1 attached to that offence, and there are four matters on that Form 1 that I will take into account subject to some other comments that I will make about them.

3. The maximum penalties and, where applicable, standard non-parole periods are, of course, important guideposts in the sentencing exercise to which I have had regard. The offender pleaded guilty not at the earliest opportunity, and it is agreed that a discount of 10% should be given by reason of utilitarian value.

FACTS

4. Turning to the facts, the facts are agreed and in summary are as follows. The offender is Zac Murphy, and the co-offender is Tyler Briggs, also known as Tyler Price, and they knew each other at the time. There was another unknown co-offender who has not been identified. On the morning of 31 July 2023, Briggs and the unknown offender arrived at a car park in Gunnedah where they took a Mitsubishi Triton belonging to Southern Shorthaul Railroad. Sometime after that, this offender joined them as a passenger in the vehicle. After that, the vehicle, with the offender and Briggs inside, travelled from Gunnedah to Narrabri.

5. At about midnight on 1 August 2023, Mr Hughes commenced his shift as a console operator at the Shell service station on the Newell Highway in Narrabri. At about the same time, a truck driver, Scott Reid, had entered the store to use the facilities. Around quarter past midnight, the Triton pulled up at the front of the service station. The unknown offender was driving, and Briggs and Mr Murphy were the passengers at that time. This offender and Briggs, who was carrying a rifle, got out of the vehicle, while the driver remained. The offender and Briggs then entered the service station where Mr Hughes and Mr Reid were talking. Briggs had the firearm raised, and the offender was right behind him. The offender was wearing a hooded jumper with the hood raised and a black face covering as well as blue latex gloves.

6. Briggs pointed the firearm at Hughes and Reid and said, “Put your hands up, I’m not fucking around. It’s a robbery, no joke, open the till.” Briggs pointed the firearm at Reid and said, “Put your hands up. I’m not fucking around. Don’t move.” After which Mr Reid replied, “You want to point that firearm at me, you better know how to use it”, to which Briggs replied, “This is no joke, bro. If you move, I’ll blow your head off.” Briggs then directed the offender, Mr Murphy, to go and get the money out of the till, and this offender then walked to the till and tapped on the bench, gesturing for Mr Hughes to open the till. Briggs then kept repeating for him to hurry and was still pointing the firearm at Reid. Hughes held his hands in the air and walked towards the till while the offender, Mr Murphy, moved to the other side of the till and again gestured for it to be opened.

7. Hughes had his car key in his hand and told Briggs that he was putting the key down. He then pressed the no-sale button on the till, and it opened. As this was happening, Briggs turned and pointed the firearm at Mr Hughes who started to retrieve notes from the till. Briggs then approached with the firearm, while the offender, Murphy, remained on the other side of the till collecting the notes as they were handed to him. After handing over the notes, Hughes held his hands in the air while Briggs continued to point the firearm at his head. A key to Mr Hughes’ Holden Commodore ute was on the counter, and Briggs said to the offender, “Grab the key”, and the offender did so. The two men then ran out of the service station, with Briggs still holding the firearm.

8. It is estimated that about $150 cash was stolen, as well as the key to the Commodore. I note that, in addition to these agreed facts, a compilation of CCTV material from the service station was played in Court during the hearing, and this became part of the Crown’s material, and I have had regard to the contents of that CCTV material.

9. Once outside, the offender got back into the Mitsubishi Triton while Briggs ran towards the Commodore ute and tried to start it. However, as that car was fitted with an immobiliser, it was unable to be started. Although Briggs made a number of attempts to get the car to move, he was unsuccessful, and the Triton returned, and he got in. The vehicle then drove off in the direction of Narrabri. Mr Hughes locked the doors to the service station, pressed the duress button, and called triple-0.

10. The above facts are those that relate to the count 2, “robbery armed with a dangerous weapon” offence, and the count 3, “threaten to use offensive weapon in company with intent to commit the indictable offence of intimidation”, which is to be dealt with on the Form 1.

11. At around 2am that same night, a Ms Jody Seach and a Mr Thomas King were at their home in Gunnedah with their two children, Clayton, age 15, and Charnai, age 9. Also at the house was a 16-year-old female named Chloe. Ms Seach was awake when she heard the family dog barking. She then checked CCTV cameras and saw the Mitsubishi Triton pulled up outside the property. She then woke Mr King and alerted him to the CCTV footage. Both King and Seach noticed that two people were swapping as the driver of the Triton. King got out of bed, turned on the outside front light, walked outside, and said, “Are you all right”, to which one of the males replied, “Yeah, the cops are chasing us”, before returning to the vehicle, which then drove away towards Breeza.

12. Mr King waited outside for a time to see if police turned up, but none did, and so he went inside. A few minutes later, Seach noticed that the Triton had returned, and she told King. The offender and Briggs jumped out of the vehicle as it pulled up to the property, and they walked towards the front door.

13. Both of them were disguised. Mr King went back to the front door of the verandah and said to the males, “Mate, I’ve got kids in here”, and Briggs then pointed the firearm directly at King and said, “Get back or I’ll shoot you.”

14. At this time, both Briggs and this offender were on the front verandah, the offender, Mr Murphy, holding a stick or club-like weapon, and Briggs holding the firearm. Both the offender and Briggs bashed on the front door and were successful in forcing entry. Briggs entered first, shouting, “Get back, I’m going to shoot you”, while pointing the firearm at both King and Ms Seach. The offender was behind him.

15. Mr King tried to grab hold of the barrel of the weapon but was unsuccessful. Briggs then began to hit King with the firearm, and at one point, the break-action barrel of the weapon popped open. Briggs was attempting to flick the barrel closed and tried to hit King with the butt of the weapon. The facts document notes that King suffered grazing and lacerations to his forearms and elbows where he was hit by the firearm. This aspect of the facts relates to the count 5 assault occasioning actual bodily harm offence, or I should say former count 5 assault occasioning actual bodily harm offence in company, which is to be dealt with on a Form 1.

16. Briggs continued to make demands, saying, “Give me the money. Where’s the drugs?” But Seach responded, “We don’t have any money or drugs here”, to which Briggs responded that he was going to shoot them. At around this point, the nine-year-old child, Charnai, who had heard the commotion, entered the hallway, and seeing what was happening, screamed, “Please stop, please stop.”

17. Ms Seach then went back into the bedroom, and the offender followed her. He grabbed her phone from her hand and punched her to the left side of the head. Briggs then entered the bedroom and began hitting Ms Seach’s forearms with the barrel of the firearm. Ms Seach took hold of the child, Charnai, and wrapped her arms around her so as to protect her. At this point, Ms Seach saw her son, Clayton, and yelled at him to call police. The statement of fact notes that Ms Seach suffered bruising to her left forearm and left cheek as a result of the assaults upon her. These are the facts relating to what were formerly count 6 and 7 on the indictment, being offences of assault occasioning actual bodily harm in company, which are now to be dealt with on a Form 1 document.

18. Mr King then entered the room, and Briggs pointed the firearm at him before leaving the room with the offender. During the assaults in the bedroom, one of the offenders took Ms Seach’s iPhone and the keys to her Nissan. They then left the house and drove away in the Triton. A few minutes later, the Triton returned, and Briggs and the offender jumped out and one of them ran towards Ms Seach’s Nissan and then drove it away, crashing into a Toyota Camry before driving off. These are the facts relating to what was formerly count 8 on the indictment, namely an offence of steal motor vehicle, which is to be dealt with on a Form 1.

19. Police attended shortly after and obtained CCTV footage from which the offender was immediately identified. The statement of facts notes that King knew the offender’s father, and that Seach had known the offender since he was a baby. After the offenders left, the Triton was driven to bushland in Gunnedah, and it was later found to have been destroyed by fire.

20. The offender was arrested on 6 September 2023. He took part in an ERISP interview in which he falsely denied any knowledge of the offences, stating that he had been at home. Briggs was arrested on 1 August 2023, and an unregistered single shot break action air rifle was found in his vehicle. That air rifle was subsequently compared with the weapon seen in the service station footage and found to have similar features.

21. Those are the summary of the facts of various matters that need to be dealt with, either by way of sentence or on Forms 1.

OBJECTIVE SERIOUSNESS

22. It is important that I make some assessment of the seriousness in an objective sense of each of the offences on which the offender must be sentenced. Both offences carry very significant maximum penalties, and the count 4 offence also has a standard non-parole period specified for a mid-range offence. These are, of course, indications of how seriously these types of offences are regarded by Parliament. However, it is necessary that I have regard to the particular circumstances of each offence, starting with count 2.

23. Any robbery, of course, must ordinarily be regarded as a serious offence. That is in part because a robbery is not just an offence involving the theft of property; it is an offence against a person or persons. Anyone who commits an armed robbery must expect to receive a full-time custodial sentence unless there are exceptional circumstances. That is in part because personal and general deterrence are ordinarily of great importance.

24. The Crown, in written submissions, reminded the Court of the observations made in R v Henry & Ors (1999) 46 NSWLR 346. I have had regard to that decision and the so-called common features of many armed robbery offences. I remain conscious, however, that while some of those features relate to the objective nature of an offence, some others relate to subjective aspects relating to the particular offender. I will return to the Henry decision later in these remarks.

25. In assessing the objective seriousness of this particular armed robbery offence, I note the following. Firstly, the offence involved the use of a firearm. Furthermore, the firearm was not merely being carried or possessed, but it was actually pointed at very short range at the faces of Mr Hughes and the other man present, Mr Reid. In addition, the pointing of the firearm was accompanied by threats to use it. The weapon, it is agreed, was an air rifle, and there is no evidence that it was loaded. However, the victims had no way of knowing whether the weapon was loaded or not, and the fact that the weapon was pointed at close range at their heads would have been a terrifying experience.

26. The service station attendant, Mr Hughes, was in a vulnerable position by reason of his employment and because the offence occurred in the middle of the night. The robbery was relatively brief, as the CCTV recording demonstrates. However, this does little to reduce the terrifying nature of the situation confronted by the victims: see Chung v R [2017] NSWCCA 48 at para 77. There was some, although a limited degree, of planning by reason of both offenders wearing disguises and gloves. The offence was committed in company, which no doubt increased the threat that would have been experienced by the persons present in the service station. This is a matter which I have taken into account in assessing the objective seriousness, along with other factors.

27. While the value of the property taken was relatively small, this again does little to reduce the seriousness of the offence. I take into account, however, that it was Briggs who played the more aggressive and more dominant role in the robbery, and that it was Briggs who held the weapon and made the threats. This offender is, of course, liable for Briggs’ actions by reason of joint criminal enterprise, but the lesser role played by this offender is a matter that reduces the overall objective seriousness of his offence when compared to the offending by Briggs. I do not, however, ignore the fact that this offender was not a mere bystander, but was himself masked and took an active role in taking the money and car keys from Mr Hughes.

28. Having regard to all the facts and the factors I have discussed, I assess this offence as being around the mid-range of objective seriousness. As I have noted, there is a Form 1 matter to be taken into account in sentencing for this count 2 offence, that being what was previously count 3 on the indictment, being an offence of threatening to use an offensive weapon in company with intent to commit intimidation. That offence arises from the threat by Briggs to shoot Mr Reid, and that being a matter to which this offender was a party by reason of joint participation.

29. A Form 1 matter like this cannot increase the objective seriousness of the substantive offence to which it is attached. However, matters on a Form 1 may operate, in an appropriate case, so as to place greater weight on the need for personal deterrence and/or retribution. In this particular case, the seriousness of the Form 1 offence is obvious, although again I note that this offender played the lesser role.

30. In assessing the objective seriousness of the substantive offence, that is, count 2, I have already taken into account the presence of Mr Reid and the threats and intimidation to which he was subjected during the robbery of Mr Hughes. It is important therefore that I avoid any double-counting when taking into account the offence on the Form 1. In these circumstances, while the Form 1 offence should increase the penalty for the robbery offence as an acknowledgement of the discrete offence committed towards Mr Reid, that increase in penalty should be relatively small. I understood the Crown to agree with this in submissions today.

31. Turning then to the objective seriousness of count 4, the maximum penalty and standard non-parole period are indicators from Parliament as to the potential seriousness of this type of offence. Any offence involving entry to the premises of another person must be regarded as serious because of the invasion of privacy and security that being in one’s premises involves. This particular instance of the offence is made more serious because it involved entry into a residential home. In assessing the objective seriousness, it is relevant also that I have regard to the nature of the serious indictable offence that was intended to be committed inside the premises. In this case, the offence was one of intimidation, which itself carries a maximum penalty of five years’ imprisonment, placing it at the lowest level of serious indictable offences as defined in s 4 of the Crimes Act.

32. The count 4 offence involves circumstances of special aggravation by reason that the offender, via Mr Briggs, was armed with a dangerous weapon. This, however, is an element of the count 4 offence and does not aggravate or increase its seriousness.

33. There are other matters which are relevant, however, to the objective seriousness of the offence.

34. Firstly, that the offender was in the company of a co-offender which would have increased the sense of threat and invasion experienced by the occupants of the house. Secondly, there is the fact that the offender knew

35. there were persons present inside the house. Thirdly, that the offence was in part witnessed by and involved the presence of two children, although these are circumstances which are also to be taken into account on the count 5 and count 6 matters on the Form 1, and therefore I have taken care not to double count these matters. Fourthly, the offence involved not just the presence of a dangerous weapon but the use of that weapon by Briggs to threaten Mr King and Ms Seach and to make a specific threat to shoot Mr King.

36. I again note that it is agreed that the weapon in question was an air rifle and that there is no evidence that it was loaded. Nonetheless, and as I have observed when talking about the count 2 offence, there would have been no way for the victims to know whether or not the weapon was loaded. On the other hand, I note that the offence involved minimal planning, a single incursion into the premises, and the theft of property of limited value. I assess the offence as being around the mid-range of objective seriousness.

37. There are four Form 1 offences or matters to be taken into account in sentencing on the count 4 offence. As I have already said, Form 1 matters cannot increase the objective seriousness of a substantive offence, but in an appropriate case they may lead the Court to increase the penalty for a substantive offence by reason of the need for personal deterrence and/or retribution. The count 5, what was previously the count 5 offence, involved the assault on Mr King arising from Mr Briggs’ actions in hitting King with the firearm. The actual bodily harm to King involved grazing and lacerations to his forearms and elbows.

38. The count 6 offence, which is on the Form 1, involved this offender punching Ms Seach to the side of her face and snatching a phone from her hands which was accompanied by some hitting of Ms Seach’s forearms by Briggs using a barrel of the firearm. The offence left Ms Seach with bruising to her cheek and to her forearm. Each of these offences occurred in the presence of the nine-year-old child, Charnai.

39. The count 8 offence on the Form 1 of stealing motor vehicle involved one of the offenders stealing Ms Seach’s Nissan vehicle after taking the keys while inside the house. Each of these three matters to which I have just made reference involved discrete offences committed subsequent to and consequential upon the specially aggravated break and enter offence, and in my view, they should be acknowledged by some increase in the penalty for that substantive offence so as to reflect personal deterrence and also by reason of the need for retribution concerning relatively serious offences.

40. As to the remaining matter on the Form 1, that being former count 7, I note the Crown’s concession that this matter be disregarded given that the Statement of Facts does not clearly identify any assault upon the child, Charnai.

41. A Victim Impact Statement was admitted in the proceedings which relates to the occupants of the home that was invaded, that being the count 4 offence. It is not relied upon by the Crown to aggravate the offence, and I do not approach it that way. However, it confirms what must be expected, namely that any home invasion, especially one where firearms are involved, must be expected to have serious and lasting psychological impacts on the victims.

42. There are some aggravating matters that are relevant. None of those that I am about to refer to increase the objective seriousness of any offence, but they do need to be taken into account in the overall sentencing exercise.

43. Firstly, the offender was at the time subject to conditional liberty, in that he was on a Community Correction Order for an offence of intimidation, and he was also the subject of an arrest warrant. Secondly, there is his prior record which does not assist him. However, I do not consider that his criminal history engages the principles referred to in Veen v The Queen (No 2) (1998) 164 CLR 465. I note that in the sentencing hearing, the Crown disavowed reliance on those principles in any event.

SUBJECTIVE MATTERS

44. Turning then to subjective matters. The offender is 30 years of age. Leaving aside matters from the Children’s Court, his history is such that it does not assist him in claims to leniency.

45. His subjective circumstances have been placed before the Court by means of written material and the evidence on oath of the offender and his mother. The psychological report of Dr Thomas Dornan notes that the offender identifies as Australian Aboriginal through his mother who a Kamilaroi woman. However, the offender and his older sister were removed from his mother’s care when he was young, and he lost contact with his parents. Prior to his removal, he was exposed to drug and alcohol abuse as well as domestic violence.

46. He was then raised by his maternal grandmother. However, he was emotionally and physically abused in this placement, and he also experienced sexual abuse by his uncle and his uncle’s friends when they were using drugs. Sometime later, in his childhood, the offender met a paternal cousin, and this led to him living with his paternal grandmother which he reported was initially stable and secure but deteriorated after about 12 months due largely to his own behaviour. It was after this that the offender succeeded in finding his mother, who by then had stabilised her life and gotten off drugs, and the offender then lived with his mother for a time, although his mental health around this time was poor due to his background of physical and sexual abuse and bullying by peers.

47. The psychologist notes that the offender in his adolescence formed an association with antisocial peers and engaged in substance abuse and criminal conduct, and that this was likely a maladaptive coping mechanism relating to his unresolved trauma. This unstable lifestyle continued until he was in his early 20s, but then he found a partner and a job, and began reconnecting with his father. While the offender apparently had some years of stability, this was disrupted by the death of his paternal grandfather and, more recently, by his father’s suicide, after which, according to the offender, “everything went to shit”.

48. In relation to his offending, the offender told the psychologist that he had been using excessive amounts of methamphetamine at the time, and that he had become involved in the offence due to trying to clear a drug debt. He said that both he and his co-offenders had used ice before the offence, and that it was a surprise to him when a gun was produced, but he was told that it was only an air rifle and no one would get hurt.

49. The psychologist reached the conclusion that the offender meets the criteria for persistent depressive disorder with mixed features, Post-Traumatic Stress Disorder, moderate stimulant use disorder in remission, and a mild cannabis use disorder again in remission in a controlled environment. The psychologist says that the offender also shows traits consistent with personality disorder with borderline features.

50. The offender gave evidence in the proceedings before me. He impressed as an intelligent young man who has gained real insight into his behavioural problems since coming into custody. He confirmed the history given to the psychologist. He also said that being on the Buvidal program in gaol has changed him totally, and that he has also been assisted by regular attendance at NA and AA meetings. He accepted, however, that his recovery will be a “long road”, and he needs to engage in rehabilitation on his release to ensure that he has the tools to manage his problems.

REMORSE

51. He expressed what I consider to be genuine remorse, saying that he is appalled at what he did, and that he had let himself and his family down. He said that at the time of these offences, he was using excessive amounts of methamphetamine and had accumulated a debt which was the reason he was recruited into these offences. He confirmed that since being in custody he has worked continuously and is now the head sweeper in his unit and has also completed some TAFE studies. He confirmed that he has the continuing support of his mother, and that he now has a young son, a matter which is a significant motivator for him to change.

52. The offender’s mother, Ms Rutley, gave evidence in support of her son. She agreed that as a younger woman, she had a serious drug problem and that her children were raised by her own mother. Ms Rutley now, however, is in a stable relationship, has a responsible job and is off the drugs. She confirmed her support for her son, who she says is amazing when not on drugs, and that he is welcome to stay with her where she lives in Dubbo for a period of time upon his release. She said also that there is a possibility of the offender being offered some work in Dubbo where she lives. Ms Rutley also confirmed that the offender has a young son with whom both he and she have fairly regular contact.

BUGMY

53. In my view, the offender’s background of neglect, abuse, exposure to violence and drugs are matters which engage the principles discussed in Bugmy v The Queen (2013) 249 CLR 571. As the psychologist said in para 104.1 of the report:

“His early childhood experiences of trauma have likely impaired his capacity for emotional regulation and impulse control, shaping the foundation for impaired decision-making in adulthood. The absence of Mr Murphy’s father and his mother’s drug use and neglect likely contributed to chronic feelings of rejection and low self-worth leaving him with limited emotional resilience.”

54. Furthermore, as the report notes at para 104.6:

“In my opinion, the cumulative impact of Mr Murphy’s early adversity, his symptoms of mental ill health, and his chronic substance use has created a significant impairment in his judgment and consequential reasoning.”

55. I accept that the offender’s background is such that it reduces his moral culpability to a material degree.

56. I also accept that the principles discussed in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 are of relevance in this case. In this regard, I note the comments of the psychologist at para 104.13 where he said:

“Mr Murphy’s childhood trauma, from maternal neglect, removal from family, and subsequent physical and sexual abuse, created developmental disruptions to his executive functioning, impulse control, and threat perception systems. His PTSD symptoms, including hypervigilance and emotional dysregulation, further impair rational decision-making under stress.”

57. At para 104.15 of the report, the psychologist also notes that incarceration is likely to be considerably more onerous for the offender given his pre-morbid diagnoses. I accept that the offender’s mental health issues also operate to reduce his moral culpability. I further accept that his mental health issues mean that his time in custody is rendered more difficult for him. This is consistent also with the psychological report’s comments at 104.18:

“When compared to the average inmate who may not have such complex mental health issues, Mr Murphy is more likely to struggle with the lack of adequate mental health care in prison.”

58. While I have found that the offender’s moral culpability is reduced by reason of his unsettled and abusive background, and also by reason of his mental health state at the time of the offences, I have also considered whether there is a need to balance these aspects against any increased risk of reoffending which those unresolved problems might indicate. In other words, the fact that the offender has these problems may indicate that he is a greater risk to the community such that it is necessary to increase the sentence so as to reflect community protection and personal deterrence. I will say something further about this topic when I come to discuss the offender’s future risk and his prospects of rehabilitation.

REMORSE

59. As to remorse, I note that the offender told the psychologist that he was ashamed, that it was “by far the stupidest thing that he’s ever done”, and he noted that he knows these people, by whom I understood him to be referring to Ms Seach and Mr King. I note also the offender’s comments to the psychologist noted at para 86 of the report, that “I still made those decisions, and I can’t blame ice for everything”, and that he took full responsibility. Having regard to those comments and also the offender’s oral evidence in Court, I accept that there is genuine remorse in this case.

PROSPECTS AND RISK

60. In terms of the offender’s future prospects, it is positive that he has some history of being successfully employed. More significant, however, are the recent positive steps he has taken whilst in custody. These have included, in more recent times at least, staying off drugs, engaging in TAFE studies and employment, attending NA and AA meetings, and more recently being accepted onto the Buvidal program. He also says that he wants to engage in further drug treatment or rehabilitation when he is released from custody. There is also the fact that the offender has, to some extent, an existing relationship with a young woman, and that as a result of that relationship, they have a son who was born in late 2024. The offender told the psychologist that he takes his parental responsibilities seriously and that he does not want his son growing up with a father in gaol. Another positive factor is the offender has the support of his mother and the mother of his child.

61. In my view, the detailed comments made by the offender to the psychologist indicate that he has given serious thought to the reasons why he relapses and commits offences, and has developed a significant level of insight. This also appears to be the view of the psychologist. However, the offender is yet to engage in sustained treatment for his mental health issues and drug problems, and unless and until he completes such treatment, the risk of relapse is a real one. This is also apparent from the comments of the psychologist at para 104.15 where he notes that Mr Murphy’s mood presently is stabilised in custody due to enforced abstinence but that, without any further intervention, that stability is likely to be short-lived. The psychologist says that the offender has been assessed as a medium risk of reoffending.

62. Having regard to all of these matters, I assess his prospects of rehabilitation as guarded but reasonable. I think he is a medium risk of reoffending, and that that risk is linked to whether he can remain off drugs and continue to pursue treatment and useful work. Having regard to my conclusion that the offender is a medium risk of reoffending but has guarded but reasonable prospects of rehabilitation, it seems to me that it is necessary to temper to some extent the degree to which Bugmy and De La Rosa factors ought to operate to reduce the sentence by reason of reduced moral culpability. As I have already said, where those factors are present, the Court may need to balance them against the increased risk that such a person may present to the community.

63. In my view, the offender’s as yet not fully treated problems are such that they do increase to some degree the risk that he presents to the community. However, given the positive findings I have made about the offender and his recent efforts to make his and his son’s life better, I remain of the view that the Bugmy and De La Rosa factors ought to be given considerable weight.

HENRY FACTORS

64. As I earlier noted, the Court of Criminal Appeal in 1999 delivered its guideline judgment in Henry relating to armed robbery offences. The decision provides a list of common features for an armed robbery offence, some objective, some subjective, which are relevant in determining an appropriate sentence for such an offence. Of course, the Henry guideline is just that, a guideline intended to foster consistency, and it is not prescriptive. I have had regard to the Henry factors in my consideration of the count 2, armed robbery, offence and what penalty should be imposed for it.

65. With regard to those Henry factors, I note the following. Firstly, the offender is not particularly young. Secondly, while his criminal history cannot be described as limited, it is not as lengthy as in many cases that come before the Court. Thirdly, the offence involved the use of a firearm, albeit an air rifle, which was clearly capable, if loaded, of inflicting serious injury or perhaps death if discharged at close range and which clearly would have caused real terror in the victims. Fourthly, there was some degree of planning and preparation in that both offenders were disguised with face masks. Fifthly, while the offence did not involve actual physical violence to either of the men in the service station, there was a very real threat of it given the presence of the firearm and the verbal threats made by Briggs. Sixthly, the victim of the robbery was in a vulnerable position, and as I have earlier made clear, when I refer to the victim being in a vulnerable position, I am referring of course to the service station attendant. Seventhly, the amount of money and property taken was relatively small. And eighthly, I note that there is a plea of guilty.

66. The circumstances of the count 2, armed robbery, offence in this case share some of the common factors set out in the Henry decision, and the Henry guideline is therefore of some relevance. In circumstances where the Henry factors are present, a head sentence before a 10% discount in the approximate range of four years five months to five years six months is indicated as a guide: see R v Harris [2011] NSWCCA 105 per Simpson J at paras 93 to 94. Of course, where there are mitigating or aggravating features present, then a lesser or greater penalty might be indicated.

67. As I have earlier said, I have taken into account that the offender’s time in custody is made more difficult by reason of his mental health issues, but I also take into account his uncontested evidence that his custody to date has involved a very large number of lock-ins due to staffing problems.

PARITY

68. An important additional factor that I have taken into account is the parity issue arising from the sentences indicated and imposed by McGuire SC DCJ on the co-offender, Tyler Briggs, also known as Tyler Price. His Honour imposed a total aggregate head sentence of ten years six months with a non parole period of six years four months. The parity principle requires, essentially, that there be equal justice. In other words, that like offences and offenders be treated alike. However, it must be remembered that no two offenders or their role in an offence will ever be exactly the same. Where there are differences, those differences need to be taken into account and may require that different sentences be imposed.

69. It is first to be noted that Mr Briggs was being sentenced for a much larger number of offences than the offender who is now before this Court. In relation to the involvement of Briggs in the offences that are counts 2 and 4 now before this Court, his Honour nominated an indicative starting point head sentence in each case of seven years which was reduced by a 25% early plea of guilty discount to five years three months. Briggs’ background of neglect, tragedy, abuse, drug and mental health problems was, in broad terms, somewhat similar to this offender’s circumstances. Like this offender, Briggs also expressed remorse, had developed insight, and has a relative with whom he can live on release. Accordingly, his Honour Judge McGuire found that Briggs’ moral culpability was reduced by reason of Bugmy and De La Rosa factors.

70. On the other hand, Briggs received the benefit of his youth, his being only 24, whereas youth is not relied upon as a mitigating factor in Mr Murphy’s case. And so, while there are similarities between the two men and their offences, there are relevant differences. The first important difference is that Briggs received a 25% discount, whereas this offender is entitled to only 10% because his plea of guilty was not at the earliest opportunity. The second important difference is that Briggs received the benefit of his relative youth. However, it is also important to note that while Judge McGuire assessed each of the two offences as being above the mid-range, I have assessed the offences committed by this offender, taking into account all of the matters I referred to, including his lesser role, as being around the mid-range. Furthermore, while Judge McGuire found that Veen (No 2) principles applied in Mr Briggs’ case such that greater weight needed to be given to community protection, the Crown did not press the Veen (No 2) argument in Mr Murphy’s case.

71. I am, of course, not bound by the starting point that his Honour Judge McGuire applied. I have taken it into account, as well as all the other matters I must consider in the instinctive synthesis that imposing sentence involves. Having done so, I am of the view that an indicative starting point lower than that nominated by Judge McGuire is appropriate in the case of this offender.

DETERMINATION

72. In determining the sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which I do not intend to set out in their actual terms. Suffice to say that all of them are relevant. However, it seems to me that the importance of general deterrence is reduced somewhat by reason of my findings about moral culpability that I have earlier set out.

73. I am satisfied, for the purposes of s 5 of that Act, that no penalty other than full-time imprisonment is appropriate.

74. I intend to impose an aggregate sentence. It is necessary, therefore, that I set out the indicative sentences that I would have imposed if I was imposing separate sentences.

75. Mr Murphy, these are what are called indicative sentences. They are not the final sentence, I will make that plain in a few moments. The indicative sentences after 10% discount for the plea of guilty are as follows.

76. For count 2, and taking into account the Form 1 matter, subject to the comments I have already made about that, from a starting point of five years six months, I deduct the 10% discount, and the indicative sentence is one of four years 11 months.

77. For the count 4 offence, taking into account the three matters to which I have made reference on the Form 1, from a starting point of five years eight months, I deduct the 10% discount, arriving at an indicative term of five years one month, and I nominate a non-parole period of three years one month. It should be noted that with respect to the standard non parole period that applies in relation to count 4 that, for reasons that I have already set out relating essentially to reduced moral culpability, I have not adopted that standard non-parole period with respect to the indicative term for count 4.

78. In determining the ultimate head sentence and overall penalty, I have had regard to totality principles and the question of to what extent there should be any notional accumulation between the two sentences. In my view, there does need to be some accumulation so as to acknowledge the separate criminality involved in the two events and the separate and multiple victims who were affected. However, it is also necessary to keep in mind, which I have, that this offender’s crimes were all committed on one day and within hours of each other, and of course, it is important that I avoid imposing a crushing sentence, especially given the positive steps that the offender has in recent times taken.

BACKDATING

79. It is necessary that I determine also the date on which the sentence should commence. Regard must be had to the fact that since his arrest on 6 September 2023, the offender has been bail refused. However, his time in custody has not been due entirely to the refusal of bail on the matters now before the Court. That is because on 11 September 2024, the Local Court imposed a sentence of two years with a non-parole period of 13 months for offences of break, enter and steal, and possessing a stolen firearm. They were committed on 23 April 2023, a few months before the offences that are before the Court today. The offender served the non-parole period for those other offences between 6 September 2023 and 5 October 2024. The Crown concedes that there should be some backdating, and that the Court should attempt to impose a sentence that reflects the sentence that would, having regard to totality principles, likely have been imposed if those and the current matters had been dealt with at the same time.

80. Having regard to these considerations, I intend to backdate the current sentence by six months from the expiry of his non-parole period, 5 October 2024, that being slightly less than half of the previously imposed 13-month non-parole period. The sentence therefore will commence on 6 April 2024.

81. I have made a finding of special circumstances for adjusting the ratio between head sentence and non-parole period. I have made that on the basis that this is the offender’s first period of lengthy full-time custody, the findings I have made about onerous custody, and the need for a significant period of monitoring once he is released to parole.

82. I impose an aggregate head sentence of six years seven months. I set a non-parole period of three years 11 months. They will date from 6 April 2024. The head sentence therefore will expire 5 November 2030. The non-parole period will expire 5 March 2028. Anything to raise, Mr Crown, Mr Bouveng?

83. BOUVENG: No, I’m just working through those figures now. No, your Honour.

84. BARNES: Those dates seem correct, your Honour, yes.

85. HIS HONOUR: Those dates seem correct?

86. BOUVENG: They are, your Honour.

87. HIS HONOUR: Yes. All right. Thank you, Mr Murphy. Your lawyer will have some discussions with you, no doubt. Hopefully you can continue on with the great progress you have made in recent times. Thank you. Court will adjourn.

88. OFFENDER: Thank you, your Honour.

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