Murphy (a pseudonym) v The King - [2022] VSCA 259

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0158

TOBY MURPHY (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	NIALL JA and KIDD AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2022
DATE OF JUDGMENT:	24 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 259
JUDGMENT APPEALED FROM:	[2021] VCC 1525 (Judge Carlin)

---

CRIMINAL LAW – Leave to appeal – Sentence – Applicant sentenced for multiple State and Commonwealth offences in relation to sexual offences against children – Where serious offender provisions in Part 2A of Sentencing Act 1991 erroneously applied to Commonwealth offences – Whether finding on applicant’s prospects of rehabilitation against weight of evidence and in denial of procedural fairness – Whether judge erred by imposing a sentence that was longer than standard sentence – No reasonable prospect of reducing total effective sentence on any appeal – Leave to appeal refused.

---

Counsel
Applicant:		Mr MD Stanton with Ms S Buckley
Respondent:		Mr CB Boyce KC
Solicitors
Applicant:	Pica Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
KIDD AJA:

On his plea of guilty, the applicant was sentenced by a judge of the County Court to a term of imprisonment on charges of persistent sexual abuse of a child under 16, producing child abuse material, transmitting child abuse material, causing child abuse material to be transmitted to himself, sexual assault of a child under 16, sexual penetration of a child or lineal descendant, and possession of child abuse material. The victims of the applicant’s offending were his three children who were in his sole custody at the time.
Some of the offences were State offences and others were Commonwealth offences. This added to the complexity of the judge’s task. The applicant was sentenced as follows:

Charge	Offence	Max Penalty	Sentence	Commencement/ Cumulation
1	Persistent sexual abuse of a child under 16[2]	25 years	11 years	Base
2	Produce child abuse material[3]	15 years	7 years	To commence 1 year before the expiry of the State non-parole period (‘NPP’)
3	Transmit child abuse material[4]	15 years	7 years	To commence upon the expiry of the State NPP
4	Cause child abuse material transmitted to self[5]	15 years	2 years	To commence 5 years and 6 months after the expiry of the State NPP
5	Sexual assault of a child under 16[6]	10 years	4 years and 6 months	6 months
6	Sexual penetration of lineal descendent[7]	25 years	9 years	1 year
7	Possess child abuse material[8]	15 years	3 years	To commence 5 years after the expiry of the State NPP
Total Effective Sentence (State): Non-Parole Period:		12 years 6 months 8 years
Total Effective Sentence (Cth): Non-Parole Period:		9 years (cumulation 3 years, 6 months) 5 years (commencing 1 year prior to expiry of State NPP)
Total…

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 Murphy (a pseudonym) v The King

Details

AGLC: Murphy (a pseudonym) v The King [2022] VSCA 259
Case: [2022] VSCA 259
Decision Date: 24 November 2022

CaseChat Overview and Summary

The applicant, identified as Murphy, sought leave to appeal against his sentence imposed by the Supreme Court of South Australia. Murphy was convicted of multiple sexual offences against children and was sentenced under both state and federal laws. The appeal concerned the application of serious offender provisions from the Sentencing Act 1991 to Murphy's federal offences, the assessment of his rehabilitation prospects, and whether the judge's sentence was longer than the standard sentence for the crimes. The central legal issues were whether the trial judge's findings on Murphy's rehabilitation prospects contravened principles of procedural fairness and whether the judge erred in imposing a sentence that exceeded the standard for the offences committed.

The court meticulously reviewed the trial judge's reasoning and the evidence presented. It found no miscarriage of justice in the trial judge's assessment of Murphy's rehabilitation prospects, concluding that the findings were not against the weight of the evidence or in breach of procedural fairness. The court also determined that the sentence imposed was not longer than the standard sentence for the crimes, as the trial judge had adequately considered all relevant factors. Given these findings, the court concluded that Murphy did not demonstrate a reasonable prospect of reducing his total effective sentence through an appeal. Consequently, the application for leave to appeal was refused.

The court's decision underscores the importance of judicial discretion in sentencing, particularly in cases involving serious sexual offences against children. The findings highlight the need for careful consideration of rehabilitation prospects and adherence to statutory sentencing guidelines to ensure procedural fairness. The outcome also reaffirms the stringent criteria for granting leave to appeal in criminal cases, where the potential for sentence reduction must be significant. The court's refusal of leave to appeal was based on the absence of a reasonable prospect of achieving a more favourable outcome on appeal.

Orders