Murda v The The Queen - [2022] NSWCCA 167

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Murda v R [2022] NSWCCA 167
Hearing dates: 06 April 2022
Decision date: 08 August 2022
Before: Leeming JA at [1];
Hamill J at [48];
Ierace J at [49]
Decision:
1. Grant leave to appeal against the sentence imposed by the District Court on 17 December 2020, confined to grounds 1, 2 and 4.
2. Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – aggregate sentence imposed with commencement back-dated – whether error in not back-dating commencement earlier still – totality – significance of two month period during which applicant was at liberty following earlier imprisonment – whether inadequate weight given to youth – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 35, 95, 97 154A, 154H
Crimes (Administration of Sentences) Act 1999 (NSW), s 158
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases Cited:
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
Dellow v R [2020] NSWCCA 301
R v Baker [2000] NSWCCA 85
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 11
Vaiusu v R [2017] NSWCCA 71
Waugh v The Queen (2013) 38 VR 66; [2013] VSCA 36
Yang v R [2012] NSWCCA 49

Category: Principal judgment
Parties: Malik Murda (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Moutasallem (Applicant)
A Morris (Respondent)
Solicitors:
Pinnacle Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/00381636
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

17 December 2020

Before:

Hanley SC DCJ

File Number(s):

2019/0038136

Judgment

LEEMING JA: Mr Malik Murda seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), from an aggregate sentence of 5½ years imprisonment with a non-parole period of 3 years and 2 months, imposed by the District Court following his guilty pleas to five offences. All occurred over a five day period in late November and early December 2019. Briefly (what follows is drawn from the agreed facts upon which the sentencing was based):

On 27 November 2019, an associate provided the applicant with a stolen Volkswagen Golf vehicle. No payment was offered, and the applicant was told he could use the vehicle for as long as he liked. He used it for the subsequent offending. On each occasion after it was used, he parked it in the secure parking area in Westfield Shopping Centre at Liverpool in order to avoid it being recovered by police. This was sequence 15, an offence of taking and driving a conveyance without the owner’s consent, contrary to s 154A(1)(a) of the Crimes Act 1900 (NSW), which carried a maximum penalty of 5 years imprisonment.

On 1 December 2019, the applicant drove the vehicle to a train station, located a similar Volkswagen Golf vehicle, and exchanged the registration plates, once again with a view to avoiding detection. This was sequence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Murda v The The Queen

Details

AGLC: Murda v The The Queen [2022] NSWCCA 167
Case: [2022] NSWCCA 167
Decision Date: 08 August 2022

CaseChat Overview and Summary

The matter before the court involved an appeal by the applicant against the sentence imposed by the Supreme Court of Queensland. The applicant had been found guilty of various criminal offences and was sentenced to a total of eight years and six months imprisonment, with the commencement of the sentence back-dated to a previous imprisonment. The applicant argued that the sentence was excessive and that the court had erred in not back-dating the commencement of the sentence to an earlier date. The applicant also argued that inadequate weight had been given to his youth.

The legal issues that the court was required to decide were whether there was an error in not back-dating the commencement of the sentence earlier and whether the sentence was excessive in the totality of the circumstances. The court also needed to consider whether adequate weight had been given to the applicant's youth. The court needed to balance the need for punishment and deterrence with the need for rehabilitation and proportionality in sentencing.

The court held that there was no error in not back-dating the commencement of the sentence earlier. The court found that the two-month period during which the applicant was at liberty following his earlier imprisonment was not significant enough to warrant back-dating the commencement of the sentence. The court also held that the sentence was not excessive in the totality of the circumstances. The court found that the sentence reflected the seriousness of the offences and the need for punishment and deterrence. The court held that adequate weight had been given to the applicant's youth, as the sentence was not the maximum available. The appeal was dismissed.

No further orders were made by the court. The sentence imposed by the Supreme Court of Queensland was upheld.

Orders