STATE OF TASMANIA v HARLEY DANIEL MURTAGH 24 JUNE 2022
COMMENTS ON PASSING SENTENCE ESTCOURT J
I have before me an application by the State pursuant to s 42AJ(5) of the Sentencing Act 1997, seeking that an order of 10 December 2021, made by me against Harley Daniel Murtagh imposing nine months home detention, principally for the crime of assault, on indictment 6769/2021, be cancelled.
The basis of the application is that Mr Murtagh breached the condition of the order that he must not commit an offence punishable by imprisonment when he was convicted of offences committed during the operational period of the order. He was convicted on 24 January 2022 on complaint 1737/2022 of possessing and selling a controlled drug, namely MDMA, between 17 January 2022 and 24 January 2022, contrary to ss 24 and 26 of the Misuse of Drugs Act.
The reason I sentenced Mr Murtagh to home detention was that the crime of assault, in particular, committed by him, while undoubtedly serious, was a spike in a graph line of outstanding efforts at rehabilitation from an addiction to methylamphetamine. It was in the community interest that he be given every chance to succeed in his determined attempt to free himself of an addiction to an insidious drug, the influence of which had pervaded his life since he was a child. To better secure that I made a 12 month community correction order with supervision and therapeutic community service.
The reason that the operational period of the home detention order was nine months was that Mr Murtagh had, at the time of sentencing, already spent four months in custody on the assault charge.
Whether to cancel the home detention order is a difficult decision.
On the one hand, the offences constituting the breach of the order were summary offences and notwithstanding the State’s assertion of seriousness, must have been considered as at the low end of the scale of seriousness by the sentencing magistrate given that the only order he made, apart from conviction, was a community correction order with a supervision period of 12 months.
Moreover, Mr Murtagh has been engaging with Community Corrections, in what has been described as, an “exemplary” manner, and continues to do well with his rehabilitation through the Bridge Program who have advised that “he is doing an amazing job and motivated to change his life”. He is also close to satisfactorily completing the 28 community service hours I ordered in December 2021 as part of the 12 months community correction order I made.
On the other hand, notwithstanding that the breach offences are isolated offences in the period of six months home detention now served by Mr Murtagh, they were committed very early in the operational period of the order and the sentencing modality of a home detention order cannot be eroded in its efficacy and deterrent effect, by courts overlooking offences committed in breach of an order.
On balance I think that it is in the interests of justice that I cancel the Home Detention Order and I so order.
However, just as the interests of justice require me to cancel the order, in my view, fairness and justice militate against Mr Murtagh being further incarcerated. Had I not sentenced him to home detention in December last year I would, in view of his efforts at rehabilitation already made, have imposed a backdated sentence of imprisonment with a significant part of it suspended.
As to resentencing, I take into account that in respect of this crime, principally one of assault, Mr Murtagh has spent four months in prison, has served two thirds of his nine months Home Detention Order imposed by me, and has almost completed the 28 hours of community service I ordered to be completed through engagement with therapeutic activities.
Mr Murtagh you are sentenced to three months’ imprisonment, which sentence I wholly suspend on condition that you commit no offence punishable by imprisonment for a period of 12 months from today.
The community correction order made by me will continue to run until 10 December 2022.