R v Murphy [2019] NSWDC 635

District Court New South Wales

Medium Neutral Citation: R v Murphy [2019] NSWDC 635 Hearing dates: 30 August 2019 Date of orders: 30 August 2019 Decision date: 30 August 2019 Jurisdiction: Criminal Before: Buscombe DCJ Decision: Paragraphs [33] to [36] Catchwords: CRIME — Violent offences — Recklessly cause grievous bodily harm — in company CRIME — Complicity — Joint criminal enterprise Legislation Cited: Crimes Act Crimes (Sentencing Procedure) Act Category: Sentence Parties: Cassidy Murphy (Offender) Director of Public Prosecutions (Crown) Representation: Counsel: D Pullinger (Accused)

Solicitors: C Hurford (Crown) P Grant (Medcalf Grant Lawyers) (Offender) File Number(s): 2017/00166816

SENTENCE 1. HIS HONOUR: The offender stood trial before a jury at Penrith on an indictment that contained a single count, which alleged that on 2 June 2017 at Lethbridge Park he caused grievous bodily harm to Dean Beale, with intent to cause grievous bodily harm to Mr Beale. The jury found the offender not guilty of that count but convicted him of the statutory alternative charge of recklessly cause grievous bodily harm to Mr Beale in company with another person. That is an offence under s 35(1) of the Crimes Act. It has a maximum penalty of 14 years' imprisonment and there is a five year standard non‑parole period.

Facts of the Offending 1. These being sentence proceedings after trial, I am required to find the facts upon which the offender is to be sentenced consistent with the verdict returned by the jury. To the extent I find facts adverse to the offender I must be able to find those facts proved beyond reasonable doubt. I find the following facts proved beyond reasonable doubt, essentially to a significant degree taken from the facts contained in the Crown's written submissions. 2. On the evening of 1 June 2017, the victim Mr Beale went to visit a friend, Will Ewart at a unit in Lethbridge Park. Mr Ewart was living at the unit with Petara Kingi and the offender's mother, Louise Marne. Ms Kingi's cousin, Joweli Sisifa was also visiting. They were all present at the unit at the time of the offence. Throughout the evening the parties were all socialising and playing cards at the table in the dining room area. 3. At some point that evening, Belinda Chilli walked over to the unit to visit the offender's mother. While she was walking to the unit she ran into the offender and told him that she was on her way to visit his mum. The offender and Ms Chilli then walked to the unit together. When they arrived at the unit, Ms Chilli and the offender went inside. The offender borrowed $20 from Mr Ewart before leaving. Ms Chilli stayed at the unit and subsequently started playing cards with the others who were there. 4. At around midnight or early the following morning on 2 July 2017, a John Cobban called the offender and asked him for some money. During the conversation the offender asked Mr Cobban to pick up the co‑offender Michael Dunn, and meet the offender at the unit. Cobban agreed to do this. He did not have a valid driver's licence at the time so he arranged for his friend, a Mr Faasolo, to drive him to collect Mr Dunn and take him to the unit. 5. The co‑offender Dunn was living with Charmaine Pitman at an address on Bunya Road and Ms Pitman is the victim's former partner. After collecting Mr Dunn, Mr Faasolo drove Mr Cobban and the co‑offender Mr Dunn to the unit. When Faasolo arrived at the unit, Mr Cobban and the co‑offender Dunn got out of the car and Mr Faasolo remained inside the vehicle. 6. Mr Cobban and the co‑offender Mr Dunn walked up to the unit and knocked on the door. Ms Marne opened the door and when she did this, Mr Cobban looked inside and saw the victim sitting at the table with others. When Mr Cobban saw the victim, he turned and walked back towards the vehicle. The co‑offender, Dunn, followed a short distance behind. While walking back towards the car, Mr Cobban saw the offender coming up the alleyway and Mr Cobban asked the offender what was going on, to which he replied, "Nothing". 7. The offender and the co‑offender Mr Dunn met up on the footpath out the front of the unit. A few minutes later the offender and the co‑offender walked up to the door of the unit and went inside. The offender walked in first and the co‑offender, Mr Dunn, followed closely behind. Mr Ewart, Ms Kingi, Mr Sisifa and Ms Chilli and the victim were still sitting at the table playing cards. 8. At some point after the offender walked inside, the co‑offender removed a hammer from his shirt. The offender and the co‑offender Dunn walked up to the table where the victim was seated. The offender walked behind the victim and stood to one side of him. The co‑offender Dunn stood on the other side. The offender then punched the victim once to the face with some degree of force. There was some conflict in the evidence of those present as to how many times the offender punched the victim. Given that conflict, I could only be satisfied that he punched the victim once, but it was a forceful blow. At about the same time, Dunn hit the victim repeatedly with the hammer at least three to five times. The 000 call that was played during the course of the trial was very distressing to listen to. 9. At some point while this was occurring, that is the assault with the hammer, the offender called out, "That's enough, stop, you'll kill him", or something similar, and pulled Dunn away from the victim and out of the unit. It seems likely that if the offender had not intervened, Dunn may well have killed the victim. 10. At this point Mr Sisifa called triple‑0 and requested emergency services to attend the unit, and as I say, that call is a chilling one to listen to. The victim was conveyed to Westmead Hospital. Upon arrival he was placed in an induced coma. He sustained a number of injuries which included an open fracture of the left temporal bone and underlying extradural haematoma, acute internal bleeding on the inside of the skull causing compression to the brain. He was taken to theatre for wound debridement closure and insertion of an inter‑cranial pressure monitor. He was then transferred to the intensive care unit where he remained for several days. The victim underwent a progress CT scan of his brain, which revealed that the left side of the extradural haematoma had increased in size. As a result of this, he underwent further surgery on 15 June 2017, namely a left temporal craniotomy and evacuation of the left temporal haematoma. This involved a portion of his skull being removed to enable the left temporal haematoma to be released. 11. The victim recuperated from his severe head injury in the neuro‑surgery ward and was discharged from hospital on 14 July 2017. There was no dispute at the trial that the injury suffered by the victim had the potential to be life threatening and that it amounted to grievous bodily harm. 12. The offender gave evidence at the trial that he was not party to a joint criminal enterprise to assault the victim and that he did not strike the victim and the jury, by its verdict, rejected that part of the account given by the offender. The victim, when he gave evidence in the trial, essentially had no memory of how he ended up in hospital that evening. There is a victim impact statement before me which details the significant impact the vicious assault had upon him.