Matthew Murphy v The Queen

[2005] ACTCA 43

MATTHEW MURPHY v THE QUEEN [2005] ACTCA 43 (2 NOVEMBER 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA  31-2005
No. SCC 64 of 2005

Judges:  Gray, Connolly and Madgwick
Court of Appeal of the Australian Capital Territory
Date:           2 November 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA 31-2005 
  )  No. SCC 64 of 2005
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MATTHEW MURPHY

Appellant

AND: THE QUEEN

Respondent

ORDER

Judges:  Gray, Connolly and Madgwick JJ
Date:  2 November 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE  )   No. ACTCA 31-2005 
  )  No. SCC 64 of 2005
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MATTHEW MURPHY

Appellant

AND: THE QUEEN

Respondent

Judges:  Gray, Connolly and Madgwick JJ
Date:  2 November 2005
Place:  Canberra

CORRIGENDUM

Judges:  Gray, Connolly and Madgwick JJ
Date:  22 December 2005
Place:  Canberra

The Reasons for Judgment delivered 2 November 2005, are amended as follows:
In [9] of Justice Connolly’s judgment and [13] of Justice Madgwick’s judgment – change the word ‘appealable’ to ‘appellable’.

Associate to his Honour Justice Gray

Date:  22 December 2005

REASONS FOR JUDGMENT

GRAY J:

1. On 30 June 2005, Crispin J sentenced the appellant in respect of an offence of aggravated robbery to a period of four years imprisonment and, in respect of a separate offence of inflicting actual bodily harm, on an occasion that occurred some 11 days before the aggravated robbery, he sentenced the appellant to 18 months imprisonment to be served concurrently with the aggravated robbery.  He imposed, in relation to those sentences, a non-parole period of 12 months.  

1. It could not be said, and Mr Bradfield, who appears as counsel for the appellant, concedes as much, that the sentences are other than within the proper range.  However, on this appeal Mr Bradfield urges that there is a matter which should have affected the fixing of the non-parole period which was not adequately taken into account by his Honour on sentencing.  That matter being as follows:  the appellant is 19 years of age, a young offender and a person, said by his father (who gave evidence in the sentencing proceedings) to have the immaturity of a 16-year-old.  As such a young person, Mr Bradfield submitted that the appellant could expect to have a special degree of care and consideration as far as this court was concerned in imposing what, in his case, would be a first sentence of imprisonment.  Further, Mr Bradfield submitted that in this case, the appellant’s previous antecedents would not indicate that he should be treated as other than a young person facing such a sentence.

1. It was stressed by Mr Bradfield that, at virtually the last minute, the appellant had had a change in attitude which had not been properly reflected in the initial pre-sentence report but had been so reflected, at least in passing, in the second pre-sentence report that was before the court.

1. That change in attitude indicated a more mature attitude, an insight into his thoughts and feelings and a willingness to manage his behaviour more appropriately.  That attitude was reflected in one counselling session with an alcohol and other drug worker reported on in the second pre-sentence report. 

1. When being called upon to sentence this offender, his Honour did not have anything further that could realistically have influenced his attitude to the sentence.  The importance of the material to which Mr Bradfield stresses is, ultimately, in its effect upon the fixation of only a 12 month non-parole period, being a non-parole period which, so short in its length, that it could well be said to be an extremely generous non-parole period. 

1. For my part, I am unable to see how it could be said that on the material presented and the way the matter was conducted, that his Honour has imposed anything other than the reasonably lenient and appropriate non-parole period that he did fix.

1. In the course of these proceedings, a psychological report from the Oberon Correctional Centre has been placed before us and that does indicate a number of encouraging matters concerning the appellant.  It also indicates a response to what has taken place that reflects a proper degree of credit for the efforts of the appellant to seek his own rehabilitation and to adapt himself for living in the community in an environment where he might not be tempted to resort to criminal activity.  He is to be commended for the efforts that he has made in custody.

1. In all the circumstances, however, it is difficult to see how this court could intervene in a matter where there has been no error demonstrated nor where there could be seen to be any miscarriage of justice.  In all  the circumstances, I would dismiss the appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Gray.

Associate:

Date: November 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA  31-2005 
  )  No. SCC  of
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MATTHEW MURPHY

Appellant

AND: THE QUEEN

Respondent

ORDER

Judges:  Gray, Connolly and Madgwick JJ
Date:  2 November 2005
Place:  Canberra

CONNOLLY J: 

1. I join with Gray J in his remarks in dismissing the appeal.  I am not satisfied that any appellable error can be demonstrated on the approach Crispin J adopted to sentencing this young offender.  It seems to me that the undoubted serious nature of the offences generate a head sentence which, it was conceded, was appropriate.  His Honour chose to deal with both separate and unrelated offences to be served concurrently. 

1. He could have adopted a different course and that would not have been attenuated with any error and it seems to me that it could take into account all of the factors relating to Mr Murphy’s youth and previous character in imposing a non-parole period of 12 months only. 

1. This court has taken the unusual step of receiving evidence in relation to Mr Murphy’s progress within the New South Wales Corrections systems, and that is encouraging, and that shows that he can look forward to the non‑parole period and to his application for parole being favourably considered at the end of the non-parole period when he will have completed a number of courses and hopefully will be able to return to the community and return to his previous good character.

1. But it seems to me the appeal must be dismissed because no error has been demonstrated in the original sentencing process.

I certify that the preceding paragraphs numbered 9 to 12 are a true copy of the Reasons for Judgment herein of his Honour Justice Connolly.

Associate:

Date: November 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA  31-2005 
  )  No. SCC  of
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MATTHEW MURPHY

Appellant

AND: THE QUEEN

Respondent

ORDER

Judges:  Gray, Connolly and Madgwick JJ
Date:  2 November 2005
Place:  Canberra

MADGWICK J: 

1. I agree there is neither an appellable error nor, on examination, any set of circumstances which, absent error, might nevertheless amount to a miscarriage of justice.  Nothing of the kind has been indicated and his Honour’s sentence, particularly as to the non‑parole period, was well within a proper range.

I certify that the preceding paragraph numbered 13 is a true copy of the Reasons for Judgment herein of his Honour Justice Madgwick.

Associate:

Date: November 2005

Counsel for the Appellant:  Mr I Bradfield

Solicitor for the Appellant:  Pappas J Attorneys

Counsel for the Respondent:  Mr R Refshauge SC

Solicitor for the Respondent:  ACT Director of Public Prosecutions

Date of hearing:  2 November 2005

Date of judgment:  2 November 2005