District Court New South Wales Medium Neutral Citation: R v MURRAY [2011] NSWDC 203 Hearing dates: 2 September 2011 Decision date: 02 September 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 3 years and a head sentence of 6 years Catchwords: CRIMINAL LAW - Sentence - Attempted armed robbery - Possess imitation firearm - Intimidation Cases Cited: R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R Category: Sentence Parties: The Crown Justin James Murray Representation: Director of Public Prosecutions Legal Aid Commission File Number(s): 2010/52405; 2011/144862 Judgment 1HIS HONOUR: Justin Murray appears for sentence on four offences. To three of those he entered pleas of guilty, to the final offence he pleaded not guilty, but I found him guilty after a short judge alone trial. 2Before setting out the offences themselves, I want to set out how it is that Mr Murray found himself in a position where he committed those offences. He was released from custody for some driving matters on 19 February 2010. He had earlier had a relationship with a young woman by the name of Kristy Nabillo. Although Ms Nabillo had terminated the relationship, she generously allowed Mr Murray to stay with her upon his release from custody as he had not many other places to go. 3After a few days matters turned sour. The precise circumstances of what occurred on 23 February 2010 are disputed and will be resolved at a trial to be held at a later date, but what is common to the version of events advanced by the prosecution and the version of events advanced by Mr Murray, is that he was significantly distressed at learning that Ms Nabillo had entered a new relationship. He then went on something of a binge. He drank a lot and took drugs. Indeed on 27 February 2010, the day before the offences for which I must sentence him, he was admitted to Westmead Hospital under a different name because he was found on a train in a highly intoxicated position. Investigations revealed that he had overdosed on alcohol, methadone and valium. 4The following day at about 7 o'clock he went into a convenience store and committed the following offences. He was armed with an imitation firearm and assaulted Jun Xu with intent to rob him. He was in possession of the imitation firearm, that being a "weapon". He was in possession of a set of knuckle dusters and upon being caught, having committed those three offences, he intimidated Joseph Kudare with intention to cause him fear or physical or mental harm. 5It is clear from the observations made by police who later arrested him, and also what Mr Xu described, that Mr Murray was significantly intoxicated at the time he committed the offence. The offender went in to the convenient store, approached Mr Xu, who was serving behind the counter, and said, "Give me cigarettes". When Mr Xu asked for money, the offender said, "I don't have any money, I'll pay you later." It was at that stage that the offender produced what looked to be a handgun. The offender looked at the gun and then pointed the gun at Mr Xu. Mr Xu said, "Okay, I will set up a credit account for you. Just give your ID." Somewhat surprisingly the offender then said "Okay". 6Mr Xu then said, "Give me your driver's licence." The offender said, "I don't have a driver's licence, but I can give you some other identification," and he then began looking through cards that he had produced from his pants. Mr Xu took advantage of the fact that the offender was distracted. He said, "I'll get the cigarettes for you," and moved to pick up a metal bar. He then said to the offender , "Get out, drop the gun." 7In finding the accused guilty of this offence, I concluded that the evidence tendered to suggest only a momentary intention to rob, which may well have evaporated by the time the offender pulled out the cards from his pocket. After Mr Xu produced the metal bar, the offender ran away. He was chased. He dropped the gun to the ground and Mr Xu picked it up. The offender turned around and said, "Give me the gun, give me the gun," but Mr Xu said, "No, wait here for the police." 8It was at about this time that Mr Joe Kudare, the gentleman mentioned in the offence of intimidation that I referred to earlier, came on the scene. He and some relatives of his were working in Mr Kudare's pizza shop. Mr Kudare was told that Mr Xu, who he knew as Billy, was in trouble, so Mr Kudare and his son and his nephew ran out of their shop to see if they could assist. They saw Mr Xu with the gun in one hand and the metal bar in the other. Mr Kudare said to the offender, "Stay right there, mate. Stay right there, don't bloody move." The offender said, possibly reasonably accurately, "I didn't mean it. I only wanted a packet of smokes." He was told to stay where he was, but ran away. 9The people chasing him caught up to him in a park. He was told to get on the ground, which he did. He was then held down. He asked to be let go, saying to one of the men, again fairly accurately, "Let me go, let me go, I've had problems with my girlfriend. I've just broken up." The offender was seen to take off some knuckledusters, which he had on his hand, and dropped them to the ground. Police arrived and arrested him. As he was being arrested he said to Mr Joseph Kudare, "Watch your shop. Watch your fucking shop, you Lebanese wog." Not surprisingly, Mr Kudare said that he felt threatened by those comments and feared that the offender would return to damage his pizza shop and hurt himself and his family. 10The offender was taken to the police station, where he slept for a while before being interviewed. He was asked why he was being interviewed and he said, "Yeah, drive with no licence." The offender said that he had not consumed any alcohol or drugs that day, but that he had had a fair bit the day before. When told he was at the police station for an attempted armed robbery, he replied, "I forgot about that." The offender said other things to the police, indicating that at some stage two people that he was with tried to convince him to assist in the robbery of a pizza deliverer, but all he really wanted to do was to get some cigarettes. 11I know very little about the offender. I know that he was born on 28 April 1979 and that he has spent a substantial part of his life in gaol. He has been given opportunities in the past, but primarily, I gather, because of problems with alcohol and drugs, he offends. He is at the age where not much leniency can be shown towards him. It is terribly sad to say it, but the offender seems to have fallen into a pattern of behaviour which sees him commit offences soon after release from custody, which has the effect of him having to return him to custody, with very little time as a free man. 12He has had problems in the past with depression, to the extent that he has reported to medical staff with suicidal ideation. Indeed at one stage he was taken to Cumberland Hospital after his arrest on 1 March 2010, the day after committing these offences, because of concerns about his mental state. 13Since going into custody he appears to have made the most of his time there. He is undertaking various TAFE courses, primarily those involving welding, and is achieving good results. Indeed his trainer says that he should be able to obtain employment in this field with more study. He follows instructions and shows great enthusiasm and skill towards each given task. Mr Murray should be proud of having achieved those results whilst in custody. 14Because the weapon offences carry with them standard nonparole periods, it is important that I assess their objective criminality in a specific way. I am satisfied that objectively both offences are significantly below the middle of the range of objective seriousness. Of course the primary reason for that finding concerns the nature of the weapons. The imitation firearm was incapable of causing injury, and whilst the knuckledusters were a nasty weapon, quite capable of causing significant injury, they were not used in any way, and in any case the range of prohibited weapons extends a significant direction towards weapons capable of causing enormous harm, injury and death. 15I do also have to say one other thing about the offence involving possessing the imitation firearm: it is the use of that same item which exposes the offender to a much higher maximum penalty insofar as the attempted robbery is concerned. I have to be very careful therefore not to double count and punish the offender by taking into account the possession of the weapon twice, once when sentencing him for the most serious matter which I found him guilty of, and once in sentencing him for the possession of that item. 16Although the offender did not plead guilty to the major offence, he pleaded guilty to an alternative. The Crown did not accept that plea in full satisfaction of the indictment and so the judge alone trial was held, but I will give the offender substantial credit for the limited nature of the issues that I had to determine in the trial. By his pleas of guilty the offender admitted many things and left only a very narrow issue in dispute. I will also discount the sentences on the matters where pleas of guilty were entered by twentyfive per cent to reflect the utilitarian value of his pleas. I am going to do that even though the pleas came late because as the Crown fairly concedes the only reason they were late is that the Crown attitude prevented them being entered earlier. 17Of course I should look at the R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R guideline in determining the appropriate sentence. There are a number of matters to be said about that guideline and its relationship with the present case. Firstly, the maximum penalty is higher. Secondly, this is not a weapon like a knife or working firearm. As I have said, a couple of times I think, this weapon was incapable of causing any injury at all. Of course Mr Xu was not to know that and so he was no doubt at least apprehensive at seeing the offender in possession of what to him must have looked like a real firearm. 18The Henry guideline is based on a plea of limited utility. Here there was no plea of guilty to the robbery matter, but, as I have mentioned before, there were pleas of guilty to other matters and the issue in relation to the robbery matter was very limited indeed. Finally, when I compare this matter to the Henry guideline, Mr Murray is far from a young offender with little or no criminal history. It is therefore necessary for a substantial period of imprisonment to be imposed upon him, even though he was at the time not functioning as well as he would have been had he not been toxicated or affected by drugs. 19One issue that I specifically raise concerns when I should commence the sentences that I will shortly announce. There are a number of reasons that I will start the sentence earlier than today. He spent two months in custody solely in relation to these matters and he does not appear to have been given credit for that time in any of the other sentences that have been imposed upon him to date. He has also spent some extra time in custody in relation to both these matters and the offences which allegedly involve Ms Nobillo. I will give him credit for that time. Should he be convicted of offences in relation to Ms Nobillo, it would be inappropriate for him to get further credit. 20Finally, there is the principle of totality. Were I dealing with all of these matters at the same time I would probably partially accumulate sentences upon each other. I should not fail to do that simply because he is being sentenced for these matters at separate times. For those reasons the sentences that I will shortly announce will start on 25 November 2010. 21There is hope for the offender's future, despite the matters I have said so far looking rather bleak. The offender is, not to put too fine a point on it, growing up. He genuinely desires, I believe, to put his unproductive life behind him. When he was asked how long it was since he had last taken methadone, he knew precisely how many days it was. He is clearly proud of the efforts that he has been able to make to date and so he should be. Upon his release from custody, of course, he will need a lengthy period of supervision on parole and I have made a finding of special circumstances in the offender's favour because of that. I have also made that finding because of the fact, as I have mentioned, that these sentences will be accumulated on other sentences imposed upon Mr Murray earlier. 22Although these offences all occurred at the same time, they do represent separate aspects of criminal behaviour and so it is appropriate that separate sentences be imposed for each offence, with the qualification that for the two weapons offences sentences for those will be served at the same time for the reasons I indicated when dealing with the matters earlier. 23For the offence of intimidating Joseph Kudare, the offender is sentenced to imprisonment. I set a fixed term of eighteen months, to date from 25 November 2010. For the offences of possessing weapons, the offender is sentenced to imprisonment. I set a nonparole period of one year and a head sentence of two years, to date from 25 November 2011. For the offence of assault with intent to rob whilst armed with a dangerous weapon, I set a nonparole period of one and a half years, to date from 25 May 2012, and a head sentence in that matter of four and a half years. The overall sentence is thus one comprising of a nonparole period of three years, with a head sentence of six years. The offender is eligible to be released to parole on 24 November 2013. ********** 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: 16 December 2011