R v Jessee Lionel MURRAY [2017] NSWDC 466

District Court New South Wales

Medium Neutral Citation: R v Jessee Lionel MURRAY [2017] NSWDC 466 Hearing dates: 25 August 2017 Date of orders: 25 August 2017 Decision date: 25 August 2017 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a total term of imprisonment of 3 years 9 months. Non parole period of 2 years 8 months. Catchwords: SENTENCE – Aggravated robbery – early guilty plea – impact on victim and community – importance of even handed and comprehensive psychiatric reports – history of deprivation as a child – majority of last 16 years spent in custody – incapable of adapting to normal community life without assistance – problems adapting when prisoner released support – institutionalisation – impact of mental illness – need for treatment – need for structured release plan – community protection. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 Buxton v R [2017] NSWCCA 169 Engert (1995) 84 A Crim R 67 Henry (1999) 46 NSWLR 346 Category: Sentence Parties: Jessee Lionel MURRAY (Offender) Director of Public Prosecutions Representation: Solicitors: Mr Hunter (For the offender) Ms Walshe (For the Director of Public Prosecutions) File Number(s): 2016/00295784

Judgment – ex tempore revised 1. Jessee Murray was committed from the Local Court for sentence having indicated an early guilty plea to an offence of aggravated robbery. The particulars of the offence are that he used corporal violence and inflicted actual bodily harm on Mr Yadav, who was the console operator of the Tarrawanna Post Office. 2. The offence occurred on 4 October 2016. The evidence indicates that Mr Murray took no more than $21 from the Post Office. 3. The offence carries a maximum penalty of 20 years imprisonment. That remains an important guide to the exercise of my sentencing discretion. It is accepted that so serious was the offence that only full-time custody could or should be imposed. 4. Other guidance to the exercise of my discretion includes decisions of the Court of Criminal Appeal, including the longstanding authority of Henry (1999) 46 NSWLR 346. A recent decision, Buxton v R [2017] NSWCCA 169 and a number of other cases are referred to there. I have also had regard to the sentencing patterns of this Court. I note that this is the third similar matter, quite independently, I have dealt with in Wollongong District Court today, including another robbery of a Post Office. 5. In each of today's earlier matters the offender's also had very long custodial histories. They had not been deterred personally by the severe penalties that had previously been imposed upon them. It is not for me to engage in any discussion as to the utility of general deterrent sentences on people with mental health and drug problems. They were fully canvassed by the Court in Henry. The Court of Criminal Appeal in that case took the view that the objects of sentencing, including general deterrence, were and should, remain significant in matters such as this. 6. Every case, every offence and every offender is an individual and requires individual consideration. The Court must first have regard to what was done. There is, before the Court, an agreed statement of facts. There is also CCTV of the robbery which was played in court: exhibit B. 7. During the day the offender went into the Tarrawanna Post Office, an ordinary suburban Post Office. He appears to have been "scattered". His behaviour appeared a little odd. The fact that there was CCTV in the premises did not deter him. He spent some time in the premises. He is then attended to by Mr Yadev. He confronted Mr Yadev. He said, "I've got a piece. Give me the money". It is pretty clear however that he was not armed. Mr Yadev picked up a stool to defend himself. Murray jumped onto the counter and went towards Mr Yadev. He pushed the stool aside. He tried to, and eventually succeeded in, getting into the till. He grabbed at the money shoving some notes into his clothing and dropping others. 8. At times he went towards Mr Yadev. Threats were made. Murray punched or pushed him on a number of occasions. The charge refers to actual bodily harm, but I have no details of Mr Yadev's injuries. It would appear that the physical injuries were not serious, but one does not underestimate the psychological impact of an offence such as this. 9. Mr Yadev, aged 61, was going about his ordinary business providing a vital service to members of his community. He was assaulted. He had his business' property stolen. He was intimidated. He was threatened by a younger and stronger man, a man who on his own admission was affected by drugs. Mr Yadev was not to know what the consequences would be. 10. This is very much an offence against a person, not just an offence against a person's property. Other people were present. It is clear from their reactions shown on the CCTV that at least two of them noticed what was going on and very quickly backed away. One other lady did not appear to notice what had occurred, but that it is, perhaps, to her advantage. 11. Mr Murray ran from the store. Two workers from a nearby fruit shop saw the money dropping and chased and confronted him. In the course of his flight from the Post Office Mr Murray snapped an aerial of a car, a matter of intentionally damage property which will be dealt on a Form 1. It is part of the general facts I have taken into account. It would not of itself have resulted in a custodial sentence. I take it into account to clear the books, rather than by it adding in any significant way to the sentence. 12. He told Police that he was on "ice" and that at some point "it just clicked" and he committed this offence. Objectively it was a violent, nasty assault on a person providing a community service. Drug use, while it might help me understand why it occurred and how it occurred and the general lack of planning for what occurred, does not mitigate the offence. In fact, in a sense, it meant that Murray was potentially more violent and unpredictable. 13. I have to have regard to the potential consequences to the victim. That there is no Victim Impact Statement in no way mitigates. One can readily understand the harm that was suffered by Mr Yadev and that he may well have continuing fears and psychological consequences as a result of what occurred. There would have been an impact on the by-standers and there is a negative impact from an offence such as this on our community in general. 14. It is sad but true that this is not the first time I have had to say this today, but offences such as this cause people in the community to fear and lose trust: people lose trust in going out. They lose trust in others in the community. If we do not have trust in others we cannot be a community. 15. Murray gave evidence. In his evidence he affirmed the history given to Dr Furst, who prepared a comprehensive psychiatric report. Dr Furst is a psychiatrist, respected by this Court. He is always frank. He is always careful in his reports. He does not adopt an advocacy role. In my experience he is careful to base his conclusions not just on what he is told, but on a comprehensive review on all available material. As is usual in Dr Furst's report, there is a thorough review of Murray's Justice Health records. I can have confidence that the history given was reasonably accurate and that Dr Furst has given an objective assessment of Murray. 16. It is an important assessment. It goes to a number of matters that have to be taken into account on sentencing. It is clear from all of the material before me that Murray has, since a very young child suffered, and suffered significantly, at the hands of others. That includes, I am prepared to accept, being the victim of child sexual abuse; of being placed in a situation where a damaged father subjected the family to abuse and his mother in particular; where his mother resorted to the use of alcohol, both in private and public. 17. It is clear that he had none of the advantages that most in our community expect. A helpful chronology provided by Mr Hunter, from the Aboriginal Legal Service, who appears on behalf of the offender, indicates that he was born in January 1983: MFI 2. He first came before a Court when he was 12, maybe even earlier. He may have been subject to control orders. There was evidence in the material that he had a criminal control order when he was 14. There may well have been others from his evidence 18. He entered adult custody when he was 18. He has been an adult for 16 years and over 13 of those years have been spent in custody. Mr Hunter calculates 82.5% of his adult life. The longest period he has been at liberty is seven months. Before committing this offence he had been in custody for a similar offence, an armed robbery. 19. He was released to parole, but parole was revoked. It seems, from all the material before me, there not being a further offence, the reason why he failed to adapt to normal community life. He then spent the balance of his sentence, almost two years, in custody. He was released only two months before committing this offence with no support in the community; no back up, except perhaps, the support of a father who has his own problems and a few family members, at least one of whom was in Court today. He was released with no programs in place; no mental health programs; no one to check whether he was taking his medication; no one to stand beside him and say taking "ice" is not a good idea; no one to provide him with work opportunities; no one to provide him with accommodation opportunities; no one to provide him with rehabilitation services; no one to direct him to those services. 20. The State Parole Authority will only release someone to parole if it is in the community interest and community safety they do so, applying the provisions of s 135 Crimes (Sentencing Procedure) Act 1999. But it would seem to me that a system which releases someone with Murray's background without any support and supervision has some flaws. While the State Parole Authority has their statutory obligations; to release a person with Murray's problems into the community without support meant that further offending was almost inevitable. This meant the community suffered and in this particular instance Mr Yadev suffered. 21. His mental state, his overall level of functioning and his deprived background, meant that his moral culpability was reduced: Bugmy v The Queen (2013) 249 CLR 571. It is also clear from Dr Furst's report that he has a significant mental health problem, a bi-polar effective disorder, which together with the second diagnosis of substance abuse disorder has caused him problems throughout his young life. 22. It is also clear that he also took up the use and abuse of drugs well before he had any capacity to make a rational choice. It was pointed out in Bugmy and Engert (1995) 84 A Crim R 67, that where someone, because of their mental health and drug and alcohol problems, continues to re-offend and lacks the controls that others with more resources have; with those incapacities can present as a danger to the community. 23. Courts have to balance the danger a person might pose with the matters which call for significant mitigation for sentence. Ultimately, a sentence is about community protection. It is clear that because of his mental illness, Murray should be less subject to principles relating to general deterrence than others. It is clear from his history that the deterrent effect of gaol has been lost. He is just as comfortable in gaol, if not more comfortable in gaol, than in the community. 24. He has been institutionalised. There is a risk that institutionalisation will be entrenched the longer he spends in gaol. How then to balance all of these conflicting problems that beset Murray and the community interest? 25. I must impose a sentence which reflects not just the objective circumstances of the offence, but attempts to, so far as possible, vindicate the dignity of the victim and to reflect the community's abhorrence of matters such as this and the damage that matters such as this cause the community. 26. Regardless of Murray's many problems and his reduced moral culpability, these matters still call for retributive punishment. He must be given assistance on release; some in the community will say he may not personally deserve it, but we deserve it as a community. If he is to be helped and prevented from offending when he is released, and he must be released, then he requires help with accommodation. He requires help with drug and alcohol rehabilitation. He requires help, I was going to say adjusting to normal community life, but in learning how to live a normal community life; because frankly since the age of about 12 or 13, or perhaps even earlier, he has never had an opportunity as a child or adult to engage in any meaningful way with the community; whether it be at home, at school, in work or even in play. 27. For those reasons while I must impose a significant sentence, I have made a finding of special circumstances. It will be up to the State Parole Authority to make their own discretionary decision as to whether and when he should be released. It is certainly my opinion that the longer he is supervised and assisted in the community, the safer we will all be. But that is just my opinion and one they can take into account or ignore. 28. It is clear that Murray needs to engage in drug rehabilitation programmes both in custody and, on release, in the community. He needs continuing treatment and assistance for his bi-polar effective disorder. He needs cognitive behaviour therapy. While in custody he needs to be under the care of a psychiatrist and a mental health nurse. If possible he should be given specialist psychological assistance. He needs help overcoming the impact of many traumas, including childhood sexual abuse. He needs help improving his coping skills. Everything that can be done needs to be done to minimise his relapse and the use of drugs in the future. All of these recommendations are sensibly set out in Dr Furst's report. 29. Dr Furst also notes that the Intensive Drug and Alcohol Treatment Program at John Maroney Correctional Centre may well provide the most appropriate program to address his addiction issues. He recommends other programs such as EQUIPS. In the community he should be put in contact with the local Aboriginal Medical Service and may in fact require a Community Treatment Order. 30. It is recommended, and I endorse, that on release he be directed to programs such as Oolong House or The Glen, on the Central Coast, or other available services. I can only hope by the time Murray is ready for release to the community there are more services available to him than is presently the case. 31. I take into account your early plea of guilty. Had it not been for that plea a sentence of five years would have been imposed upon you. 32. The formal orders are that there will be a total sentence of three years and nine months. There will be a non-parole period of two years and eight months to date from 4 October 2016 and expire on 3 June 2019. There will be a balance of parole of one year and one month. The total sentence will expire on 3 July 2020. 33. I take into account the matter on the Form 1