IRWIN A J

STATE OF TASMANIA v AARON JAMES IRWIN                                     10 MAY 2021

and STEVEN CRAIG MURTAGH

COMMENTS ON PASSING SENTENCE                                                       PORTER AJ

 The defendants, Mr Irwin and Mr Murtagh, appear for sentence on a number of charges. First, they are jointly charged with crimes arising from an escapade that happened on the night of 10-11 September 2019, and which essentially involve three separate episodes of offending. They face one count of burglary and two counts of stealing in relation to thefts of a vehicle from a house in Warrane, and from another vehicle at the same address, a number of counts of computer-related fraud – Mr Irwin four, Mr Murtagh two – and counts of aggravated burglary and stealing in relation to a business in Battery Point. Mr Irwin was found guilty by a jury of these counts, while Mr Murtagh pleaded guilty. Mr Murtagh has also pleaded guilty to two counts of aggravated assault committed about a year later. I am also dealing with his pleas of guilty to five related summary offences; namely, breach of bail, assaulting a police officer, resisting a police officer, driving a motor vehicle with an illicit drug present in oral fluid, and driving whilst disqualified.

Starting with the joint offending, late at night on 10 September or in the early hours of 11 September 2019, the defendants went to a house in Warrane, the home of Tristan Birch. They entered the rear yard by cutting a padlock from a gate. Mr Birch’s work vehicle and his personal vehicle were parked in the yard. The defendants smashed the front passenger window of the work vehicle and stole the keys to the other vehicle and Mr Birch’s wallet which contained a number of bank cards. Using the keys, the defendants stole the personal vehicle, a utility, and used that until it was found in an adjacent suburb on 12 September. Contained in the stolen utility were assorted tools, including a long jack handle, assorted clothing and a green “jet lighter”. Travelling in the stolen utility, they stopped at three service stations, one in Lindisfarne, the second on the Brooker Highway, the third in Elizabeth Street North Hobart. At the first each man obtained miscellaneous goods such as drinks, cigarettes and batteries, Mr Irwin to a value of $86.97, Mr Murtagh to a value of $98.69. Similar purchases were made at the second service station to a value of $90.47 by Mr Irwin and $87.97 by Mr Murtagh. Only Mr Irwin went into the third service station but did so twice, purchasing similar items to a total value of $187.90. The defendants then drove to Battery Point and parked the utility in Kelly Street near the business of Annick’s Antiques in Hampden Road. At about 3.30am, they forced entry into the building by smashing a glass door with the jack handle from Mr Birch’s utility. One or other reached through the smashed glass to unlock the internal lock, and opened the door. Each was carrying an offensive weapon or implement, one being the jack handle, the other being an unknown metal implement. They then smashed the glass on two antique showcases and took a gold bracelet, an ivory box and a “Vesta” box. The defendants were apparently unaware that the upstairs part of the premises was a residence. The owner of the business, Annick Thomas, and her partner, Antony Cox, lived there, and a friend, Michael Ross was staying there at the time. Mr Ross heard a noise from downstairs and went to investigate. He encountered the two defendants. One of them, I am satisfied that it was Mr Irwin, raised the implement and told Mr Ross to fuck off or he would kill him. Ms Thomas had also come down into the shop while Mr Cox was on the stairs calling police. The defendants fled into Kelly Street where the vehicle was parked, and they drove off. When police arrived, they found a number of things in the gutter near to where the utility had been parked, all of which belonged to Mr Birch, the green lighter amongst them. When speaking to police, Ms Thomas described what she thought a suspicious event which had happened about 10 days earlier. Two males and two females had come into the shop and asked about the bracelet that was later stolen. On 11 September Ms Thomas identified both defendants from photoboards. On the morning of the same day, a person who lived not far from Mr Birch’s house found a backpack behind an air conditioning unit in their backyard. It was taken to a police station where it was found to contain items belonging to Mr Birch. In the early afternoon a search warrant was obtained for Mr Irwin’s home. His home was relatively close to Mr Birch’s house, and also to where the backpack had been found. Mr Irwin was arrested but Mr Murtagh fled and was not immediately apprehended. Forensic testing provided links between items found, the location of the crimes and the defendants. On 12 September the utility was found in Mornington, as I have said. Other items belonging to Mr Birch have not been recovered. None of the items stolen from the antiques shop has been recovered. I have a victim impact statement of Annick Thomas. She says she has had the shop for 10 years and been in the antique business for over 40 years. She feels she was robbed not just of valuable items but also her effort. The antiques were things that could not be replaced. The Vesta box was something she put a lot of effort into finding. In particular, she is very upset at the damage to the showcases. She has had them since she was 19 years old and used them to travel around the country to antique fairs. She has suffered financially as she was not fully insured. The incident has made her feel quite vulnerable and she has a continuous fear of being burgled again.

That brings to me to the charges faced by Mr Murtagh alone. The relevant events happened on 19 September 2020, a little over a year later. In the meantime, he had served a short term of imprisonment and then been on bail in respect of the earlier 2019 offending. In the few weeks before 19 September 2020, the defendant is alleged to have breached his bail conditions multiple times by failing to sign in at a police station as required, and breaching a curfew. At about 2.40pm on 19 September 2020, in Launceston, Constables Abery and Fenton were on patrol in a police vehicle when they saw the defendant riding a stolen motor cycle. The officers pursued him. After turning off the road and riding across a vacant block, the defendant again rode along a footpath before going behind some sheds at the end of the street. The police found the defendant getting off the motor cycle outside a premises. As the officers were getting out of the vehicle, the defendant ran towards Const Abery and pushed the car door into her, striking her and pinning her against the doorframe. That is the summary charge of assault. The officers then chased after the defendant, who turned and adopted a fighting stance with his fists closed and held in front of his face. He said, “Come on you fucking dogs”, at which point Const Fenton used OC spray, but this was ineffective as the defendant was wearing a helmet and goggles. Const Fenton told the defendant to get on the ground. The defendant was highly agitated. He was yelling loudly and said words to the effect of, “Fuck off you dogs, I’ve got a knife, I’m going to fucking stab you, and you’re going to have to shoot me.” When Const Abery attempted to disable the defendant by hitting him to the arm and leg with a baton, the defendant produced a knife and continued to threaten them. The threats to stab are the subject of count 1 on the indictment. The defendant then scaled a barb wire fence before going into a warehouse through a raised roller door. Both officers followed the defendant into the warehouse. The defendant ran towards them. He was still holding the knife and was threatening and abusive. When the officers retreated, the defendant tried to shut the roller door but the officers attempted to prevent him from doing so. The defendant said he had a gun, that the officers were dead and that he would throw petrol on them. He then splashed petrol underneath the roller door towards the police while holding a butane blowtorch in the other hand. He threatened to light the petrol. This is count 2 on the indictment. The officers retreated and waited for back up units to arrive. When other officers were there a cordon was formed around the warehouse. The defendant barricaded himself inside the warehouse by dragging various items to put against the roller door. He also spray painted low level windows so that the police could not see in. He repeatedly refused to leave when he was directed to. Ultimately, police negotiators became involved with fire and ambulance services also attending. At about 4.50pm the defendant surrendered. He underwent an oral fluid test which returned a positive result for methylamphetamine, amphetamine and MDMA. Const Abery received minor cuts as a result of scaling the barb wire fence, but otherwise no officers was injured. The defendant has been in custody since his arrest.

As to Mr Irwin, he is now 30 years old; he has a rather lengthy recorded history of offending including offences of violence and dishonesty. That record extends to convictions for violence in New South Wales. He had an unstable and disruptive upbringing. His alcoholic father died when he was 2 years old. When he was 6 his mother remarried. His stepfather was violent to him and his brothers. They were progressively forced out of the home, and the defendant was put into a men’s shelter when he was 13. He soon got into trouble. He was injected with some form of illicit substance at 13 and began using. He became addicted to methylamphetamine and soon began to offend. This consisted mostly of offences of dishonesty. After a period of homelessness he made the decision to go to New South Wales to seek assistance from a drug rehabilitation program. He completed a number of courses and seemed to be doing a little better although in January 2008 he was dealt with as a juvenile for common assault and made the subject of a bond. In April 2009 he was again dealt with for assault, as well as assault occasioning actual bodily harm for which he received suspended terms of imprisonment. He did have some employment moving to the ACT with his brother to further those employment opportunities. However, he was not able to free himself of drug use and returned to Tasmania to have the support of a brother who runs a plastering business. He has been sporadically employed since then. According to the recorded history he was largely able to keep out of trouble between about 2010 and 2014. In September of 2014, though, he was convicted in this Court of assault and wounding, and sentenced to eight months’ imprisonment three months of which was suspended. From 2017 onwards there was an escalation in the amount and nature of offending. Relevantly, there was a conviction in February 2018 for, among other things, aggravated burglary, the outcome of the proceedings being a suspended sentence. In October 2018 by way sentence and resentence for a variety of offences he was sentenced to three months’ imprisonment the execution of two months of which was suspended on conditions. He was also made the subject of supervision by a probation officer with conditions as to treatment for drug dependency and psychological or psychiatric assessment. This offending puts him in breach of that suspended sentence and there is an application for it to be activated. An aggravating factor is that this offending was committed after proceedings for firearms offences were adjourned for 12 months on the defendant giving an undertaking to be of good behaviour for that period. There are also other dishonesty offences committed after the offences he presently faces. They include computer-related fraud by way of the use of debit cards, breaches of bail and breaches of a family violence order. For about two months before going into custody on these matters he had been on the subuxone program, following nine months on a waiting list. He has continued with that treatment in custody He has a 2 year old son. There is a family violence order against him in relation to the mother of that child but I am told he is keen to develop his relationship with his son as much as possible. This provides some motivation for him. When he is released, I am told he hopes to continue with his drug rehabilitation program for which support seems available, to find suitable accommodation and to continue with plastering work for his brother.

Mr Murtagh is now 33 years old. Apart from significant events in his life when he was about 7 years old or so, his family life appears to have been relatively stable. At that age, he was the victim of sexual abuse carried out by a male friend of his father. He only disclosed this abuse when he was well into his twenties. This abuse may serve to explain his resort to cannabis and drugs at an early age. By the age of 14 he was using morphine and amphetamines. He has a seriously entrenched long-standing drug habit. This drug habit has very largely given rise to what in the past has been described as an appalling record of offences of violence and dishonesty. Counting the making of a drug treatment order and its cancellation as one appearance, this is his eighth appearance in this Court for sentence. Between September 2007 and November 2010 by way of cumulative sentences, he was made the subject of a total of eight years’ imprisonment with a non-parole period of about 5½ years These offences included aggravated robbery, attempted aggravated armed robbery, aggravated assault, injury to property and burglary and stealing. Following his release in 2013 he very soon started to re-offend. He has made attempts at rehabilitation. He was made the subject of a drug treatment order in 2014, although that was cancelled after about two months. A further drug treatment order was made by a judge of this Court on 22 November 2018. Unfortunately Mr Murtagh was not able to avoid relapse. Although that order was cancelled on 22 July 2020, the sentencing judge noted a high level of compliance over an extended period demonstrating a commitment to rehabilitation and compliance, despite a continuing struggle with addiction. Reports before his Honour noted a reflection on his situation by the defendant and recognition of the need to build on his achievements and continue the focus on rehabilitation, something for which he has a strong motivation. When that order was cancelled the defendant was sentenced to six months’ imprisonment the execution of which was suspended on conditions. The offending in September 2020 puts him in breach of the condition of suspension. An application has been made to activate that term. I was told that in the period 2018 to 2019 he had difficulty with transition into the community. There was a variety of stressors in his life, including the breakdown of a relationship and some family issues. I was told that since being imprisoned on this occasion he has been proactive in seeking support in relation to his drug abuse. He has engaged with the sexual assault support service and has received counselling to address what are described as “difficult challenging and confronting issues from his past”. It is said he has worked consistently and respectfully in this regard. A particular motivating factor for improved behaviour is said to be two young children with whom he has had contact when he was in the community. He had a cordial relationship with the mother, but the children were taken into care towards the end of last year. He is very upset by this and apparently keen to do what he can to assist his children and knows that overcoming his problem is essential.

As to the joint offending, the offences are of course serious ones. They involved grave intrusions on people’s property and into their lives, and show complete disregard and disrespect for their emotions and their property. As to the first set of charges involving Mr Birch, the defendants bear equal culpability. Mr Irwin faces four charges relating to the use of Mr Birch’s credit card; Mr Murtagh two, although the amounts involved are not great. I am satisfied that the burglary at Annick’s Antiques was pre-planned, and that part of the planning involved stealing a vehicle and whatever else might be of assistance. I accept that neither knew that the building was also used as a residence, but, in my view, that does not count for much. I must recognise the threat of violence made by Mr Irwin, whereas making an actual threat of violence was not alleged against Mr Murtagh, although he was carrying an offensive implement. Apart from that there is very little, if anything, to distinguish them with respect to culpability. Mr Murtagh has a much worse record but he is entitled to some discount for the utilitarian value of his pleas to those crimes. Those pleas were late and came after some negotiations about the particulars of the aggravated burglary, although before then, identity was the anticipated issue. I take into account Mr Irwin’s personal circumstances as I have outlined them. There seem to remain some prospects of reform, but persisting with addressing his drug problem is needed. As to Mr Murtagh’s assaults on the police officers, they must be viewed in a very serious light. The assaults were for the purpose of preventing his lawful apprehension. The officers were simply carrying out their duty. On his behalf, it is said that he had no intention of carrying out the threats, but he rightly accepts that the officers were not to know that. Using petrol in that way while in possession of an ignition source was potentially dangerous for all. That he was drug affected at the time perhaps increased the risk. General deterrence and condemnation of such conduct are very prominent factors. Of course, the entire offending needs to be assessed. There is the summary assault and other offences involving police, and serious driving offences including driving whilst disqualified where there are quite a few prior convictions for that and like offences. As to Mr Murtagh, I take into account his personal circumstances as outlined and pleas of guilty to all matters. There do seem to some remaining real prospects of eventual rehabilitation for him.

Mr Irwin, although a different form of offending is involved, I do not consider it unjust to activate the suspended sentence of two months, and I do so. That will commence on 2 April 2021 to take into account the time spent in custody and not otherwise accounted for. In respect of all other matters you are convicted and sentenced to 21 months’ imprisonment cumulative to the activated term. I order that you not be eligible for parole until you have served one half of that second sentence.

Mr Murtagh, also in your case, I do not think it unjust to activate the suspended sentence of six months, and I do so with effect from 7 September 2020 to take into account the agreed time you have spent in custody. In relation to the indictment charging the 2019 offending, you are convicted and sentenced to 21 months’ imprisonment cumulative to the activated term. You are convicted of the aggravated assaults and of the related summary offences and sentenced to 27 months’ imprisonment. I do not see any real option but to make that cumulative to the previous sentences. Given your continued efforts at rehabilitation and what seems to be an increasing realisation of the very real need for greater efforts on your part, I will order parole eligibility of some significance. I order that you not be eligible for parole until you have served one half of each term other than the activated suspended term. That is a total imprisonment of 4½ years with a non-parole period of 2½ years, backdated of course.

As against each defendant, I make compensation orders in favour of Tristan Birch for amounts to be assessed. I adjourn the further hearing of that to a date to be fixed. As against each defendant, I make a compensation order in favour of the proprietor of Shannons Insurance in an amount to be assessed and adjourn the further hearing of that to a date to be fixed. Lastly, as against each defendant, I make a compensation order in favour of Annick Thomas in the sum of $9,721.