R v Murray [2013] NSWDC 339

District Court New South Wales

Medium Neutral Citation: R v Murray [2013] NSWDC 339 Decision date: 07 August 2013 Jurisdiction: Criminal Before: Conlon DCJ Decision: Sentence to a non parole period of 15 years to date from 16 February 2012 and to expire on 15 February 2027. Sentenced to an additional term of 5 years to expire on 15 February 2032. Catchwords: Discharging a firearm with intent to cause grievous bodily harm Category: Sentence Parties: Regina (Crown) Adam Murray (Offender) Representation: Counsel:

Solicitors: File Number(s): 2012/50862

Judgment The offender Adam Scott Murray appears for sentence following his plea of guilty to a charge of discharging a firearm with intent to cause grievous bodily harm. The offence is contrary to S 33A(1)(a) of the Crimes Act and carries a maximum penalty of twenty‑five years imprisonment. The agreed statement of facts is contained within the Crown bundle of documents, exhibit A, and they are as follows. As of February 2012 the victim Renee Sullivan was then aged twenty‑one years and she was living with her partner Ronald Zammit and their four children including two month old twins at 44 Fowlers Road, Dapto. Ronald Zammit knew the offender from school days. Renee first met the offender around Christmas 2011. Earlier on 15 February 2012 Renee was at a local part with her daughter and her mother. At that time she saw the offender and one of his friends, a Michael Apps, carrying a case of beer. At about 6.20pm that day Renee was at home with her partner and children. They were living in a townhouse that had a front wooden door and a screen security door. Next to the door was a window that was covered with a bed sheet. Renee and her partner were at the rear of their premises when they heard three loud knocks at the front door. The victim walked towards the front door and pulled aside the curtain at the front window to see who was there. She was immediately shot right between the eyes. She of course remembers nothing apart from later waking up in hospital. The offender had discharged a firearm through the front window. Renee has sustained a single gunshot wound to the bridge of her nose between her eyes. Her partner ran to her assistance. She was saying she could not see. He saw blood running down her face and he observed a hole and a crack in the window. He contacted triple‑0 and it appears rather amazingly that Renee managed to talk to the operator. When her partner asked who it was she said, "It was Muzza". That is a nickname by which the offender was commonly known. The victim's sister, Alyssa Sullivan, arrived before the ambulance. Renee told her that the person responsible was, "Adam Murray, Muzza, Adam". Following the attendance of police and ambulance the victim was flown by helicopter to St George Hospital where surgery was performed attempting to remove the bullet from her brain. She was later taken to the Brian Injury Unit at Liverpool Hospital. I will return to her treatment shortly. Meanwhile a number of neighbours had contacted triple‑0 and later informed police that they observed a male running away along Fowlers Road wearing dark shorts and a red T‑shirt pulled up to his head. The offender ran to the residence of his cousin Kylie Dunwell at 82 Emerson Road, Dapto. She stated he arrived about 6.40pm; that she was surprised to see him as she had not seen him for a while. She said he was agitated and sweating. He said, "I fucked up, you need to help me, you need to drive me away, take me away, I shot someone, I fucked up". Ms Dunwell thought he was "smashed" and asked what he had taken. He told her he had not taken anything and had just been drinking. He told her to ring Robert Dunwell (another cousin). She then gave him the phone and heard him say, "Get to Kylie's I'll explain when you get here". The offender then jumped into the pool with the young children and was playing with them in the backyard. He went into the pool wearing his shoes and shorts. Robert Dunwell and his partner Rachael Cleverly arrived a short time later. The offender took Robert aside. The offender then asked Rachael Cleverly to take him to a mate's home at Warilla. She agreed and a little later the police stopped her vehicle in Pioneer Road, Oak Flats. This was at about 7pm. Police approached with their firearms drawn and directed the offender to get out of the rear of the vehicle and onto the ground. He was then arrested and taken to a police station. He refused to cooperate with police repeatedly telling them to "fuck off". He was subjected to a gunshot residue test however no residue was detected (this no doubt in part being as a result of him jumping in the pool). Owing to his level of intoxication, police decided at that time not to interview him. In the following investigation, police obtained statements regarding the offender's movements on the day of the shooting. It was determined that on the afternoon of 15 February 2012 he was at a residence in Gilba Road, Koonawarra drinking shots from a 2 litre bottle of Jim Beam. Following the drinking game, he apparently became irate and went inside the premises returning with an object wrapped in yellow towel down his pants. He said he was going to Ronnie Zammit's to see him and then he left. On 16 February 2012 a search warrant was executed at 24 Gilba Road, Koonawarra. Police seized a red T‑shirt along with a pair of blue board shorts from the laundry. In one of the bedrooms they found a 12 gauge shotgun shell and a .22 calibre shell. No firearm was found. The offender has provided no information as to the disposal of that firearm. I return now to the treatment of the victim and her injuries. Emergency surgery was performed at St George Hospital by Dr Kohan. After a formal craniotomy, the floor of the frontal cranial fossil was repaired and a few small fragments of the bullet were removed. The larger fragment could not be removed without risk of significant neurological damage including affecting her speech. It was observed that the posterior wall of the orbit was fractured and the optic nerve appeared elongated. As earlier indicated she was later taken to the Brain Injury Unit at Liverpool Hospital. In April of this year, 2013, specialists determined that the main projectile lodged in the brain was moving position and as it was close to major vessels of the brain, further surgery was required to remove it. That surgery was performed on 9 April 2013. Dr Kohan advised that it was high risk surgery as the fragment was adherent to an artery. It has also been advised that no further surgery is anticipated and her prognosis is good. OBJECTIVE SERIOUSNESS The offender gave a brief version of alleged events leading up to the commission of offence to Mr Champion, Psychologist. That appears at para 36 of the report (exhibit 1). In part he makes reference to feeling under threat from the victim's partner and wanting to "scare him off". No evidence has been given by the offender and therefore very considerable caution should be exercised in placing any reliance upon those statements (R v Qutami [2001] NSWCCA 303 at [58]. Upon a consideration of the agreed facts presented to the Court, very little weight can be afforded to such a version. he offender was at his own residence on the day in question drinking with an associate. In the course of that drinking he decided to arm himself, to conceal the firearm and then go to the victim's home some 2 kilometres away. Given that he knocked on the front door to draw the inside occupants to it and the position of the bullet hole in the window beside the door, as shown in photographs 26, 36, 37 and 41 (exhibit A), I am satisfied beyond reasonable doubt that he was on the landing immediately outside the front door when he discharged the firearm. I am also satisfied that he discharged that weapon as soon as the victim pulled the curtain aside to see who was there. Those facts indicate the clearest intention. An offence under S 33A(1)(a) is complete when a firearm is discharged with intent to cause grievous bodily harm. Melbom v R [2011] NSWCCA 22 at [97] is authority for the proposition that in respect of such an offence the Court is entitled to have regard not only to the substantial nature of the injuries sustained but to take it into account as an aggravating factor. Other aggravating factors under S 21A(2) of the Crimes (Sentencing Procedure) Act are that the offender had a record of previous convictions for violent offences, the offence was committed whilst the victim was in her own home, the offender had been released into the community on parole and the offence involved a grave risk of death. In my view there are no mitigating factors present (that is apart from the plea of guilty itself). I am also satisfied that the offender's use of the weapon involved a high degree of criminality. When courts are dealing with indiscriminate, yet deliberate and intentional use of firearms, no real significance can attach to an offender later saying "I intended to discharge the weapon at A and not B". Whilst my consideration of all the above factors leads me to an assessment that whilst the case perhaps does not fall into the worst case category, I am nevertheless satisfied that it does fall towards the very top end of the range. The victim asked that her impact statement be read to the Court by a relative. That statement clearly indicates the emotional harm and psychological injury she has suffered as a result of being shot in the head and undergoing brain surgeries. She of course will have to live with the physical reminder of this evening following the neurological damage to the left side of her face and eye. The Court can well appreciate how her life has changed and the concerns she has for her future and that of her children. The impact articulated by her in this statement further highlights the objective seriousness of the crime. SUBJECTIVE CIRCUMSTANCES The offender is now twenty‑seven years of age. He has an extensive criminal record including crimes of violence. On 9 August 2007 at Wollongong District Court he was sentenced in respect of one charge of malicious wounding in company (committed on 28 March 2006) and also one charge of taking and detaining a person whilst in company (committed on 4 May 2006). He received an effective head sentence of seven years imprisonment with an effective non‑parole period of five years in respect of those offences. It is appropriate to set out a brief summary of the facts of each of those offences dealing first with the charge of malicious wounding in company (the full facts have now been exhibited in this case and they are exhibits D and E). On the evening of 23 March 2006 the victim and his wife and three children aged nine, three and two were at their home at Warrawong. At about 7pm a car was heard pulling up outside their home, it was the offender and his brother. This offender then issued a threat calling out to the victim inside, "I'm going to fucking kill you Jay". The offender and his brother then entered the home through the front security door, they were in possession of offensive implements, one being a pointed metal weapon. The male victim fled to a bedroom pursued by the co‑offenders. At this time this offender had a wooden club and was swinging it at the victim. The victim was then pursued into the kitchen where he was stabbed a number of times in the back with a pointed metal weapon and repeatedly hit with the wooden club. The victim's wife was screaming, "Stop it, not in front of my kids". The assault continued with one of the offenders yelling, "We're going to fucking kill you". Shortly after they fled via the front door. The victim suffered various wounds, lacerations and a right punctured lung, his left cheek was fractured as were two fingers on his right hand. Upon the offender's eventual arrest he denied any involvement. In respect of the offence of take and detain whilst in company committed on 3 May 2006, the victim had known the offender for two to three years. At about 8pm this offender together with three other males, one being his father Stephen Murray, entered a home unit in Mercury Street, Wollongong. The victim was forced into the offender's motor vehicle and driven to another location. The victim under threat was forced to remove his clothes. Various demands for money were made of the victim. Over the course of that evening and into the following morning the victim was held captive, he was assaulted on numerous occasions, he was prodded with a taser and subjected to other humiliating behaviour. Exhibit 1 is a report (dated 29 March 2013) of Mr Peter Champion, Clinical Psychologist. The following background history is set out in that report. The offender was the third of five sons born to his parents. He informed the psychologist that his father suffered from alcohol abuse problems. He also stated that his next oldest brother had major alcohol and drug problems and was currently again in prison. He described his eldest brother as a "bad drunk and bum" whilst stating that one of his younger brothers overuses alcohol. He spoke of a major incidence of alcohol and drug issues and criminal offending within the paternal family and that he had many relatives in prison. He reported being unsettled at home when growing up and being in conflict with his brothers. He felt that his brothers had always been favoured over him. He denied any pattern of neglect or abuse by his parents. He commenced his primary education at Koonawarra Public School. He was transferred to Smith Street Special School as a result of behavioural problems. He completed years 5 and 6 there. He attended Kanahooka High School for a few months in year 7. He then went to the PCYC briefly before leaving school altogether and not progressing beyond year 7. He has had no further education other than when in prison. His lack of education has left him functionally illiterate. However Mr Champion stated that the sum result of all the testing indicated that the offender is of low average intelligence. He further stated that while there is a measure of intellectual limitation present, there is no indication that he is suffering from a developmental disability. He informed the psychologist that he commenced using cannabis at age 9, by 13 he was using daily. He commenced using alcohol at about that time and by 16 he was smoking crack cocaine and ice. He acknowledged some periodic use of heroin in his 20's. The psychologist was informed that upon the request of his parents he was admitted to the Shellharbour Psychiatric Unit in about 2004‑5. He was thought to have spent about one month there. Upon discharge he was in receipt of Largactil (an antipsychotic). The psychologist commented that it did not appear that he kept using the medication nor did he seek mental health follow up. The offender reported that he is not currently in receipt of psychotropic medication, though in the past in prison he was prescribed antipsychotics including Largactil and Zyprexa. At para 17 of his report Mr Champion noted that the offender acknowledged a past history of auditory phenomena and longstanding paranoid ideation, at times of delusional depth, this resulting in aggressive behaviour (confronting strangers). The offender reported that he was released to parole in October 2011 and following a few months of relative sobriety he relapsed into a pattern of using drugs such as ice and ecstasy a few times a week but was abusing alcohol regularly. The psychologist stated, "He reported that prior to the present offence he had consumed in the vicinity of a litre of spirits over a short period of time as a result of which he became heavily intoxicated...". The psychologist noted, "Alcohol will of course tend to impair judgment and personal control and encourages the expression of underlying emotions including anger". During this period following his release on parole, he claims to have had issues with his ex partner with whom he had 5 children. It seems his ex partner's new partner opposed him having contact with those children. He was eventually barred from seeing them and this apparently distressed him. By this time he was also in a new relationship and his new partner fell pregnant. He indicated it was in the context of those pressures he relapsed into drug use. Mr Champion stated at para 32: "I received no report that at the time of the offending behaviour Mr Murray was knowingly suffering from a medical or neurological condition (eg poorly controlled diabetes, epilepsy or brain injury) having the potential to impact directly on judgments/behaviour. Nor any report of a typical impairment of consciousness other than that associated with substance abuse. I note that his intellectual functioning is a bit below average (in the lowest 20% or so) and while on the face of it he is not developmentally disabled as such he is nevertheless an uneducated and unsophisticated man whose reasoning ability and foresight appears to be below par". The only reference to any remorse/contrition appears at para 37 of the psychologist's report. The offender said: "I wish it didn't happen...I just found out my missus was pregnant...I was going to stop drinking". He went on to say, "I wish I'd stayed in gaol last time so it didn't happen...I try not to think about it...I didn't mean for it to happen or anyone to be hurt or me to be here...she shouldn't have to go through it she did nothing wrong". In my view this demonstrates a total lack of insight into how his despicable act has devastated the life of a young mother. The sentence proceedings have taken place over several days. On 1 August 2013 it was adjourned, inter alia, to allow enquiries to be made concerning the victim's most recent surgery. On 6 August 2013 an additional statement of Dr Kohan was placed before the Court, exhibit F. Also on this day a handwritten letter was tendered, exhibit 2. That letter was addressed to the victim and was dictated by the offender. Whilst it has been a long time coming the Court can regard it as some evidence of his belated remorse. Upon a detailed consideration of all the material before the Court, there is little to indicate any real positive hope of the offender's prospects of rehabilitation. FUTURE RISK/DANGEROUSNESS At para 38 Mr Champion stated: "In regards to his prognosis there are a number of fairly obvious risk factors of the type which are commonly identified in protocols as indicating a risk for violence. These risk factors include a history of previous violence, a young age at the time of the first violent incident, relationship instability, employment problems, substance use problems, major mental illness (vide psychiatric admission), early maladjustment, personality disorder, prior supervision failure, lack of insight, negative attitudes...impulsivity, plans which lack feasibility, potential exposure to destabilisers, lack of personal support, stress to which one can add the problems relating to long term prisoners returning to the community and also the issue of intellectual limitations and illiteracy. If these sorts of risk factors cannot be addressed, in particular alcohol and other drugs and mental health problems, then the risk of further dysfunctional behaviour would seem significant, particularly if he is abusing alcohol or drugs and if his mental health deteriorates". On this issue I have of course had regard to his criminal record, to the serious violent crimes committed in 2006 and to the fact that the present heinous crime was committed whilst he was on parole. A finding of future dangerousness does not need to be established beyond reasonable doubt. It will be sufficient if the material placed before the Court establishes that there is a risk of re‑offending (see R v Harrison (1997) 93 A Crim R 314). Upon an examination of the material I am satisfied that there is a real risk that the offender will re‑offend by committing serious offences of violence and the risks will probably remain long term or at least until it is moderated naturally with advancing years. I do not make this finding lightly. I acknowledge that there is a difficulty in predicting dangerousness so far into the future. I am also conscious that a sentence otherwise appropriate to the seriousness of an offence cannot be extended merely to protect society. However, the Court must have regard to the protection of society as a factor in determining a proportionate sentence. PLEA The offender was committed for trial in respect of the present charge as well as a charge of shoot at with intent to murder. On 24 July 2012 he was arraigned in the District Court. He pleaded not guilty to each charge. The matter was set down for trial on 5 November 2012. On 30 October 2012 the defence made an application to vacate the trial date and was given a new trial date of 5 February 2013. On the day of the trial the offender pleaded not guilty to the charge of shoot with intent to murder but guilty to the present charge. This was accepted by the Crown in full satisfaction of the indictment. A discount for the utilitarian value of a plea is determined largely by the timing of the plea. This of course was a late plea. Nevertheless in the normal course of events the Courts would be required to make an assessment of the utilitarian benefit. However in R v Thompson and R v Houlton [2000] NSWCCA 309 Spigelman CJ observed at para 57 that "there are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for a plea is appropriate". Taking into account the extreme gravity of the crime and the serious danger which he presents to the public, I consider that any remaining utilitarian value of his plea should not result in a reduction of sentence. I have taken into account the purposes of sentencing set out in S 3A of the Crimes (Sentencing Procedure) Act,. With regard to S 5 of that Act I am satisfied that no penalty other than imprisonment is appropriate. As already noted the maximum penalty for this offence is one of twenty‑five years imprisonment. In Markarian v R (2005) 79 ALJR 1048 the Court stated: "Careful consideration to maximum penalties will almost always be required, first because the legislature has legislated for them. Secondly, because they invite comparison to the worst possible case and the case before the Court at the time. And thirdly, because in that regard they do provide, taken in balance with other relevant factors, a yardstick". In making my assessment in respect to the present matter, I have had regard to the principle enunciated in Veen v R (1988) 164 CLR 465 at 478 where it stated, the fact that it may be possible to envisage a worst case does not mean that the maximum sentence should not be imposed. However, as earlier indicated, my examination of the objective circumstances has led me to a conclusion that whilst they perhaps do not fall into the worst case category, they nevertheless fall towards the upper end of the range. Accordingly to give effect to what was said in Markarian the present crime requires a sentence that falls towards the upper end of the range. All citizens should be able to feel safe in their own homes. They should feel safe and protected when playing with their children in the front or rear yards of their homes, or when watching television in their lounge rooms. They should be able to walk out their front door or down the street to the local shops without fear that some criminal might just happen to discharge a firearm in their direction. The message that must be delivered by the Courts to the mindless criminals who have no difficulty in pulling a trigger, is that they can expect their freedom will be taken away for a very long time. The prevalence of indiscriminate use of firearms in our community requires that those responsible for such use must be removed from our community. The public has the right to expect that condign punishment will be meted out to those guilty of such crimes. There is nothing before the Court to warrant a finding of special circumstances. Whilst his parole was revoked following his arrest for the commission of the present offence it is appropriate to commence this sentence from the day he was returned to custody following his arrest, that is 16 February 2012. Mr Murray will you please stand. You are convicted of this offence. I sentence you to a non‑parole period of 15 years to date from 16 February 2012 and to expire on 15 February 2027. I sentence you to an additional term of 5 years to expire on 15 February 2032. That is a head sentence of twenty years imprisonment with a minimum term of fifteen years imprisonment.