Regina v Murrell [2002] NSWSC 260

New South Wales Supreme Court

CITATION : Regina v Murrell [2002] NSWSC 260 FILE NUMBER(S) : SC 70037/99 HEARING DATE(S) : 21/09/01, 25/09/01, 28/09/01, 06/11/01, 07/12/01, 01/02/02, 23/03/02, 05/04/02 JUDGMENT DATE : 5 April 2002

PARTIES : Regina v Llyod Anthony Murrell JUDGMENT OF : Howie J at 1

COUNSEL : G. Tabuteau - Crown M. Crowley - Accused SOLICITORS : S.E. O'Connor - Crown Forshaws Neill, Solicitors - Accused Criminal Procedure Act 1986 LEGISLATION CITED : Crimes Act 1900 - ss 61J, 90A, 97(1), 97(2), 98, 113(1), 350 Crimes (Sentencing Procedure) Act 1999 - ss 23(2), 44 DECISION : See paragraphs 41 to 44.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION 70037/99 HOWIE J

FRIDAY 5 APRIL 2002 REGINA v Lloyd Anthony MURRELL

REMARKS ON SENTENCE 1 His Honour: On 6 November 2001 the prisoner was arraigned on an indictment which contained two counts; manslaughter and, in the alternative, accessory after the fact to shoot at with intent to inflict grievous bodily harm. Both offences were alleged to have occurred on 10 November 1997. The prisoner pleaded not guilty to the first count but guilty to the second count. The Crown accepted the plea of guilty in full satisfaction of the indictment. The Crown then tendered an undertaking by the prisoner to give evidence in the prosecution of a person by the name of Potts arising from the shooting which was the subject of the offence to which he had pleaded guilty. I was informed that there were other matters pending in the District Court and that an application would be made to have those matters referred to this Court. The sentencing proceedings were then adjourned on the application of both parties. 2 On 6 December 2001 the Chief Justice granted an exemption from the operation of the direction contained in Practice Note No. 98 in respect of an indictment against the prisoner. I have been informed by the Crown that the exemption related to the two indictments to which I am about to refer. 3 On 22 March 2002 the prisoner again appeared before me and pleaded guilty to offences contained on two further indictments. He also asked me to take into account two matters on a Form 1 under the provisions of the Criminal Procedure Act. 4 The first of the fresh indictments contained four counts of armed robbery with a dangerous weapon contrary to s 97(2) of the Crimes Act. Those offences were alleged to have taken place on four dates in 1998 being, 8 February, 15 February, 2 March and 2 April. The prisoner pleaded guilty to each of those four offences. The two matters on the Form 1 were each an offence of larceny of a motor vehicle and were committed as part of the robbery offences occurring on 8 February and 2 April. The prisoner asked me to take those matters into account when sentencing him for the first of the armed robbery offences on the indictment. 5 The second of the fresh indictments contained six counts arising over two days in June 1997. The following offences were alleged to have been committed on 28 June, the first of those two days: aggravated sexual assault (contrary to s 61J), detaining for advantage (s 90A), armed robbery (s 97(1)), and break and enter with intent to commit a felony (s 113(1)). The following offences were alleged to have occurred the next day, 29 June: assault with intent to rob with a dangerous weapon (97(2)) and assault with intent to rob with arms and wounding (s 98). The prisoner pleaded guilty to each of those offences. 6 The maximum penalties for the offences for which the prisoner is now to be sentenced are as follows: armed robbery with a dangerous weapon – 25 years; armed assault with intention to rob with wounding – 25 years; armed robbery – 20 years; aggravated sexual assault – 20 years; detain for advantage – 14 years; break and enter with intent – 10 years; accessory after the fact to a serious indictable offence (s 350 of the Crimes Act) - 5 years. The total maximum sentence for all offences committed by the prisoner is over 200 years. I do not suggest that the prisoner would ever be sentenced for anything approaching this penalty but that figure should be borne in mind when matters subjective to the prisoner are being considered later in these remarks. 7 Although the Court is to take into account the two matters on the Form 1 when determining the sentences to be imposed for the first armed robbery offence on the second indictment placed before the court, in the circumstances of this particular case and considering the relative lack of seriousness of those matters when compared with the offences on the indictment, they do not warrant any increase in the sentence otherwise to be imposed upon the prisoner. 8 Statements of facts were tendered in respect of each of the matters for which sentence is to be passed. There is no dispute as to the factual basis upon which the prisoner is to be sentenced and I can deal with the facts relatively briefly. 9 The first episode of criminality involves the offences committed on 28 and 29 June 1997. On the first of those days the prisoner and another person disguised with balaclavas entered a dwelling house in Strathfield. The prisoner was armed with a screwdriver. At the time the sole occupant was the complainant who was then aged 20 years. She was having a bath when she heard a banging noise from the rear of the house. She got out of the bath and, wrapping a towel around herself, went to a telephone. She dialled the emergency number but her call was interrupted by the appearance of the two men, one of whom took the phone from her and hung up. She was asked to show them the safe and when she said that there was no safe, the prisoner threatened her. She then informed them where the safe was located but said that she was unable to open it. She was told she would have to go with the men and was asked where the keys were of the vehicle parked outside the premises. She showed the men the keys and the prisoner took them. After being allowed to get dressed, the complainant was ordered into the vehicle, which the prisoner then drove away. These incidents gave rise to charges of break and enter with intent, armed robbery and detaining for advantage. 10 A short time later the vehicle stopped and the complainant was ordered out of the vehicle. The prisoner approached her and placed one or more of his fingers in her vagina while placing her hand on his penis. He finally forced her to commit fellatio upon him. While this was occurring the co-offender was standing near by. This incident gave rise to the charge of aggravated sexual assault. The complainant was then allowed to leave and she drove the vehicle to a friend's place and contacted police. 11 The next evening, 29 June 1997, the complainant was at her home with her family. The prisoner and two other persons wearing balaclavas and armed with firearms forced their way into the premises and confronted the occupants. A struggle took place between one of the men and the complainant's father during which he gained possession of the firearm. During this struggle the father suffered a wound to his head that later required stitching. The complainant's sister also struggled with one of the men. The two men then left the premises. This incident gave rise to a charge of assault with intent to rob whilst armed and with wounding in relation to the father and assault with intent whilst armed upon the complainant's sister. 12 The second episode of criminality before me arises from the shooting of Mr Homsi. On 5 November 1997 a minor collision occurred between a vehicle driven by a friend of the prisoner, Ms Stephens, and a vehicle parked in the driveway of the home of Mr Homsi. An argument occurred between the owner of the vehicle and the occupants of the other motor vehicle. Mr Homsi was present but was involved only to the extent of trying to calm the others. During the argument Ms Stephens made telephone calls to two persons asking them to attend. A short time later the prisoner and another man arrived. The argument continued and there is evidence of the prisoner threatening the owner of the parked vehicle. The police were called and took particulars from the persons involved. The particulars given by Ms Stephens were false. A short time later the prisoner left the premises, as did the occupants of the other vehicle. 13 In the early hours of 10 November 1997 Mr Homsi was at home with his family watching television when he heard a gunshot. He and his wife went to the front door of the house where they heard someone outside the premises issuing a challenge to come out and fight. A second shot was then fired which penetrated the closed door and struck Mr Homsi in the chest and neck, fatally wounding him. Neighbours saw a person fire a shot toward the house and then flee the scene in a waiting Commodore motor vehicle. 14 In June 1998 police, who were then in the course of investigating the prisoner for armed robbery offences, had obtained listening device warrants authorising them to listen to conversations in the prisoner's home. They overheard a conversation between the prisoner and a friend shortly after a television show about the killing of Mr Homsi had been aired. That conversation implicated the prisoner in the shooting. 15 The prisoner was charged with murder on 8 July 1998. After a trial by jury he was convicted of that offence and on 5 July he was sentenced to 17 years. He appealed against the conviction on the ground that the jury were given an erroneous transcription of the conversation taped by police. On 4 June 2001 the conviction was quashed and a new trial ordered, the Court indicating that the Crown could not succeed on a charge of a murder. The Crown determined to proceed against the prisoner for manslaughter. A retrial for that offence was set down for 24 September 2001 but it never took place because the prisoner entered into negotiations with the prosecution that ultimately resulted in the Crown charging the prisoner with the accessory charge and accepting a plea to that offence when he was arraigned before me. 16 As part of those negotiations the prisoner entered into an interview with investigating police in which he admitted that he had driven Potts from the scene following the shooting. The prisoner gave a lengthy interview in which he stated that he tried unsuccessfully to stop Potts firing the rifle at the door of the house as he saw a shadow beneath the door. In substance this was the version given by the prisoner during his trial for murder. 17 The third episode of criminality for which the prisoner is to be sentenced involves the four armed robbery offences contained in the second indictment before the court. They are as follows. On 8 February 1998 the prisoner and three other men entered the Birrong Bowling and Sports Club. They were armed with firearms and wearing balaclavas. The employees of the club were threatened with the weapons and made to handover the takings from poker machines totalling over $22,000. The robbers forced the employees into a cool room although they told them that police would be contacted to ensure their release later. A vehicle was stolen in which the robbers made their escape. Police were informed of the robbery and the call was traced to an Ampol Service Station. Security photos later obtained showed the prisoner in the premises at the time the call was made. 18 On 15 February 1998 the prisoner and four other men held up staff members at the Corrimal Leagues Club. They were wearing balaclavas and armed with firearms. Over $60,000 was obtained from the safe in the premises. The staff members were locked in a cool room but released a short time later by a patron of the club. The police obtained evidence that the prisoner had been at the club before the robbery speaking to one of the patrons and a staff member. 19 On 1 March 1998 the prisoner and two other persons entered the private residence attached to the North Wollongong Hotel. They threatened the occupant with firearms and forced him to take them to the manager of the hotel. They were taken to his room where his partner and their child were asleep in bed. The men demanded money from the hotel safe and received about $30,000. Persons in the premises were locked in a storeroom and the robbers made their escape. The occupants a short time later freed themselves. 20 On 2 April 1998 the prisoner waited in a motor vehicle while two associates robbed the ANZ bank at Thirroul. The robbers entered the bank through the ceiling cavity. When the bank staff arrived, the robbers threatened them with a handgun. Over $29,000 was obtained from the safe. The robbers then left in a stolen vehicle driven by a fourth person. 21 Evidence in respect of the June 1997 offences and the armed robberies came substantially from legally taped conversations in which the prisoner made statements implicating himself in these offences. 22 These facts reveal that between February and April 1998 the prisoner was a member of a gang of professional armed robbers who had little, or no, respect for honest citizens or their property. The armed robbery offences committed in that period should be considered as falling in the upper range of seriousness for offences of their type given their nature, the threats used against the victims, the amount of money stolen and that in three of them persons were confined so that the robbers could make their escape. The fourth was a well-planned robbery of a bank. The sexual assault upon the complainant who was abducted from her own home is also an offence of grave seriousness even though the complainant was allowed to leave physically unhurt but no doubt degraded and traumatised. The armed robberies in June 1997 can appropriately be described as home invasions. 23 The objective criminality revealed by these offences is high and merits a very lengthy gaol sentence. There are three distinct criminal enterprises in which the prisoner was involved. They took place over a period of nine months. The offences involved in two of those episodes require condign punishment to reflect the seriousness of the criminality involved and general deterrence. It is perhaps ironic that the least serious offence is now that relating to the death of Mr Homsi given that the prisoner is to be sentenced as an accessory after the fact to the shooting but is not to be held to be in any way involved in, or responsible for, the death that resulted from the shot being fired. 24 I have been advised that two persons have been sentenced for their part in the armed robbery offence contained in the second indictment. They were each sentenced in respect of one offence only and I know nothing about the subjective material that was before the sentencing judge. From the sentences imposed I can only presume that it must have been remarkable. In any event it does not seem to me that parity is relevant in the present case having regard to the number of offences for which the prisoner is to be sentenced and the fact that he was on conditional liberty at the time of the offences. But I have had some regard to the sentences imposed although I consider at least one of them to be manifestly inadequate on its face. 25 The prisoner has a criminal record for offences of dishonesty and violence but containing nothing approaching the seriousness of these offences. He was born in December 1970 and his criminal record commenced as a juvenile in 1982 when he was placed on a bond for offences of dishonesty and assault. In 1986 he was committed to a juvenile institution for offences including a break enter and steal. In 1989 he was sentenced to a short gaol sentence for similar offences and a further short prison term in 1991. In 1993 he was ordered to perform community service for an offence of assault occasioning actual bodily harm. He was sentenced to a short prison term in 1994 for assault. In November 1995 the prisoner was again ordered to perform community service for an offence of supply a prohibited drug and placed on a good behaviour bond for 3 years for a dishonesty offence. In August 1997 he was sentenced to a term of imprisonment for further offences of dishonesty. He appealed against that sentence and as a result of that appeal was sentenced in April 1998 to serve that sentence by way of home detention. 26 From that criminal record three matters of particular significance to the present exercise arise. The first is that the prisoner was subject to a good behaviour bond at the time he committed the offences for which he is to be sentenced. The second is that he was on bail to attend the Local Court when he committed the offences in June 1997. The third is that he was subject to appeal bail to the District Court when the armed robberies offences and the offence connected with the shooting took place. It is an aggravating circumstance, itself calling for both specific and general deterrence, that serious offences are committed by a person who has been permitted to remain in the community on conditional liberty. 27 I have already noted that when the prisoner first appeared before me the Crown tendered an undertaking by him to give evidence against a person who has now been charged with the murder of Mr Homsi. The decision to assist the Crown appears to be from a desire to protect members of his family as a result of threats and acts of violence to them after he was arrested for the murder rather than from any desire on the part of the prisoner to see justice done. However, he is not disqualified by that fact from an appropriate discount commensurate with the value of his assistance and taking into account the matters referred to in s 23(2) of the Crimes (Sentencing Procedure) Act. One of the matters I am required to take into account under that section is the timeliness of the offer of assistance. In the present case, the offer was late in the course of the proceedings for offences arising out of the shooting. However, the assistance is significant as it is the only evidence to implicate Mr Potts. Although the evidence of the prisoner is of a category that is considered to be potentially unreliable, there is some support for his credibility in the taped conversations. 28 The prisoner has been in custody since his arrest for the murder of Mr Homsi in July 1998. Some of that period was spent serving the sentence for murder that was quashed on appeal. Clearly the sentences to be imposed upon him for the present matters should commence on that date. Since September 2001, when he decided to assist the prosecution, he has been held in strict protection. He has, by the offer of his assistance to the Crown, placed himself in a more difficult position in custody. I accept that there has also been an increase in the danger to his family notwithstanding the attacks made upon them prior to the offer of assistance. The offer has also resulted in difficulties for members of the family in visiting the prisoner by reason of the steps taken to protect both them and him. The prisoner's mother has been required to move interstate. 29 The prisoner is entitled to the fact that he has pleaded guilty to these offences and has by that act shown a willingness to assist in the resolution of these matters. In respect of the offences on the second and third indictments that discount cannot be at the fullest measure for the utilitarian value of the pleas. The prisoner did not plead guilty until after he had been committed for trial. The finalisation of these matters was delayed by reason of the murder charge but the prisoner is not to be deprived of any discount for that reason. The plea to the sexual assault offence did save the complainant the trauma of giving evidence. There is some evidence of remorse for his involvement in these offences. In respect of the accessory charge he is entitled to the full measure of the discount following his plea to that offence. The Crown accepts that it was not reasonable for him to have offered to plead to that offence while facing the charge of murder. In the present case it is not appropriate to identify the discount for the pleas of guilty in percentage terms because of the other discount to which the prisoner is entitled. 30 In determining the extent of the discount for his pleas and offer of assistance the Court must not lose sight of the offences the prisoner has committed, their very grave seriousness and the significant need for the sentences imposed to reflect general deterrence. In my view the appropriate discount to be given in such a case as this cannot be considered by reference only to the assistance given and the effects of that assistance on the prisoner and others. There has to be, at the end of the day, a sentence imposed that adequately reflects the other, and perhaps competing, aspects of punishment, particularly when the offences committed are of very grave seriousness as are those with which the prisoner has been charged. 31 There has been a substantial subjective case presented on behalf of the prisoner. Much of this concerns the conduct and attitude of the prisoner since his arrest for these matters and the effect that his proffered assistance has had upon the safety and welfare of members of his family. Clearly these are relevant matters. But the change in the prisoner since his arrest and the prospects for his rehabilitation as a result cannot be allowed to overshadow what he has done in the immediate past before his incarceration. Nor can the Court be held hostage to the continued criminal conduct of others aimed at punishing the prisoner for his assistance or convincing him to renege on his agreement. 32 The prisoner is aged 31 years and I have indicated the extent of his criminal record. That record cannot assist him but these are by far the most serious offences he has ever committed. There is material contained in psychological reports which seeks to explain his criminal behaviour by reference to events in his early life, and, what is described as, a history of abuse and deprivation inflicted by his father and stepfather who were both violent criminals. However, he has enjoyed the support and assistance of his mother and other members of his family throughout his history of offending. The prisoner has suffered from the results of substance abuse over many years and he claims that the present offences were a result of his excessive use of alcohol, gambling and the company he was keeping at the time. 33 The prisoner was in a long-term relationship with a young lady throughout his various gaol sentences and three children were born of that relationship. Apparently that relationship came to an end just prior to his embarking upon the criminal activity that has resulted in the present offences. He formed another relationship in February 1998 and which is still current. He has a child from that relationship born after he was arrested for these matters. His de facto wife has two children of another relationship. The prisoner and his present partner are hoping to marry once he is released and to adopt the three children of the prisoner's former relationship. However, she and the children are now in police protection and her situation is obviously more difficult while the prisoner remains in custody. 34 The prisoner has successfully undertaken a number of educational and life-style programmes while in custody and there are a number of certificates that he has received in evidence before me. There are also commendations from persons in the correctional services relating to various aspects of his conduct in prison. He has been receiving psychological counselling since being placed in the Special Programmes Unit. He hopes to undertake a carpentry course with TAFE in order to obtain some skills that he might use when released. There is a letter by the prisoner indicating his remorse and appreciation of the impact of his offences upon his victims. 35 As I have already recognised these subjective matters are important. They indicate that the prospects for the rehabilitation of the prisoner, which appeared perhaps to have been poor when he entered into gaol on his arrest for murder, have improved. He is still a relatively young man so that rehabilitation remains a significant matter. But these subjective features cannot be given the weight that they might otherwise have received had the offences for which he is to be sentenced not been so serious. Were it not for his pleas of guilty and proffered assistance, the prisoner would have been looking at spending the greater part of his adult life in gaol. 36 I have reduced the otherwise appropriate sentence by about one third in respect of the offences on the second and third indictment and about 40 per cent for the accessory offence. This is in recognition of the differences in the appropriate discounts for the pleas of guilty between the three indictments and the matters to which regard is to be given under s 23(2). I appreciate that the greater discount is being given on the lesser sentence and yet the prisoner is by reason of his offer of assistance in protection and, therefore, will serve any future sentence under strict conditions. However, I believe that any greater discount than a third for the bulk of the offences before the court would result in a penalty which was unreasonable disproportionate to the nature and circumstances of the offences. I recognise that, notwithstanding the discounts, that the prisoner must still serve what is a very substantial prison sentence particularly having regard to the fact that he will probably serve a significant part of it in protection. But I am conscious of the fact that the prisoner did not enter protective custody until September last year, over three years after he will have been taken to have commenced to serve the sentences I am imposing. 37 It is necessary to impose the appropriate sentence upon the prisoner for each of the offences he has committed and then consider totality both within each of the groups of sentences represented by the three indictments and across the total sentence imposed for all offences. 38 Mr Crowley on behalf of the prisoner has submitted that I should find that there are special circumstances justifying a reduction in the otherwise appropriate non-parole period. He finds support for this submission chiefly in the prisoner's age, the length of the sentence he must serve, and the material contained in the psychological reports all of which, he submits, indicate a longer non-parole period is justified for the prisoner's rehabilitation. He also submits that I should take into account the difficulties caused for the prisoner's family in maintaining contact with the prisoner by reason of the need for their protection. 39 Whether or not there are special circumstances in the present matter will depend largely upon the total sentence imposed and whether the application of s 44 of the Crimes (Sentencing Procedure) Act will result in a period that is adequate to provide for his rehabilitation while on parole. In the present case the total sentence has been reduced by many of the factors that might amount to special circumstances. That does not exclude those factors being relevant to the determination of whether there are special circumstances but the question is whether the otherwise appropriate non-parole period should be reduced for some purpose other than merely to mitigate the severity of the sentence. I do not believe that there are special circumstances in the present case other than by reason of the accumulation of the sentences and to provide some assistance for the reunion of the family. The overall minimum period that the prisoner must serve before his eligibility for release to parole is the very least that in my view can be justified having regard to his criminality. 40 Before imposing sentence I should note that I received a victim impact statement in respect of the death of Mr Homsi as to its effect upon his wife and child. The only significance that material has is to indicate the importance to the widow that the person responsible for his death be prosecuted and, therefore, the importance of the assistance being offered by the prisoner in that regard. 41 In respect of the offence of accessory after the fact to shooting with intent to cause grievous bodily harm the prisoner is sentenced to a fixed term of 1 year and three months to commence on 8 July 1998 and to expire on 7 October 1999. 42 In respect of the third indictment the prisoner is sentenced as follows; Count 1 (s 61J): imprisonment for a fixed term of 4 years from 8 July 1999 and to expire on 7 July 2003. Count 2 (s 90A): imprisonment for a fixed term 2 years 8 months from 8 July 1999 and to expire on 7 March 2002. Count 4 (s 113): imprisonment for a fixed term of 2 years from 8 July 1999 and to expire on 7 July 2001. Count 3 (s 97): imprisonment for a fixed term of 3 years 4 months from 8 July 2000 and to expire on 7 November 2003. Count 5 (s 98): imprisonment for 4 years from 8 January 2002 with a non-parole period of 2 years to expire on 7 January 2004. Count 6 (s 97): imprisonment for a fixed term of 2 years from 8 January 2002 and to expire on 7 January 2004.