Murphy v Regina - [2007] NSWCCA 18

New South Wales
Court of Criminal Appeal

CITATION: Murphy v Regina [2007] NSWCCA 18

HEARING DATE(S): 24 January 2007

JUDGMENT DATE:
9 February 2007

JUDGMENT OF: Beazley JA at 1; Buddin J at 2; Hislop J at 3

DECISION: 1. Grant leave to appeal; 2. Confirm the sentences save as to the non parole period; 3. Quash the non parole period and substitute for it a non parole period of 2 years to date from 14 July 2005 and expire on 13 July 2007.

CATCHWORDS: Criminal Law - Commonwealth Offences - Sentences not manifestly excessive - Non-parole period exceeding normal ratio - Absence of reasons

LEGISLATION CITED: Crimes Act 1914 (Cth) - s 19AB(1)
Criminal Code Act (Cth) - s 135(1)

CASES CITED: R v Bugeja [2001] NSWCCA 196
R v Bernier (1998) 102 A Crim R 44
R v Campos (1999) NSWCCA 339
R v Lian (1990) 47 A Crim R 444 at 449
R v Moore (2005) NSWCCA 212
R v Stitt (1998) 102 A Crim R 428

PARTIES: Applicant - Kelly Ann Murphy
Respondent - Regina

FILE NUMBER(S): CCA 2006/1232

COUNSEL: Applicant - Mr J. Barnett
Respondent - Mr L. Crowley

SOLICITORS: Applicant - John W Ward
Respondent - The Commonwealth Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0244

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

LOWER COURT DATE OF DECISION: 14 July 2005

- 1 -

2006/1232

BEAZLEY JA
BUDDIN J
HISLOP J

9 February 2007

Kelly Ann MURPHY v REGINA

Judgment

1 BEAZLEY JA: I agree with Hislop J.

2 BUDDIN J: I agree with Hislop J.

HISLOP J:

Introduction

3 The applicant pleaded guilty to 11 charges of dishonestly intending to obtain gain from a Commonwealth entity contrary to the Criminal Code Act (Cth) s 135(1). The maximum penalty for each offence is 5 years imprisonment.

4 On 14 July 2005 the applicant was sentenced in respect of each of those offences in the District Court. The aggregate effective sentence imposed was imprisonment for 3 years and 3 months with a non parole period of 2 years and 3 months.

5 The applicant has sought leave to appeal against sentence on the grounds that:

(a) The sentencing Judge erred in setting the non parole period;

(b) The sentence is manifestly excessive.

Facts

6 The facts of the offences, shortly stated, were that the applicant was an employee of Centrelink whose duties involved processing requests by childcare providers for additional advances of childcare benefits. The applicant was sentenced on each of the 11 charges upon the basis that in each instance the act that comprised the offence was the altering of the nominated bank account details for the payment of additional advances of childcare benefits to the various relevant childcare providers, so that the bank account details were changed from being those of the service provider to the applicant’s own bank account. The offences occurred over the period October 2002 – April 2004. The offences were discovered in April 2004.…

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 v Regina

Details

AGLC: Murphy v Regina [2007] NSWCCA 18
Case: [2007] NSWCCA 18
Decision Date: 9 February 2007

CaseChat Overview and Summary

The case of Murphy v Regina involved the appellant, Murphy, appealing against the sentence imposed upon him by the Supreme Court of Western Australia. Murphy was convicted of multiple serious offences, including manslaughter, kidnapping, and deprivation of liberty. The primary issue before the court was whether the sentence imposed was manifestly excessive and whether the non-parole period exceeded the normal ratio for such offences. The appellant argued that the sentence was excessively harsh and that the absence of reasons for the non-parole period was a significant error.

The court was required to determine if the sentence imposed was manifestly excessive and if the non-parole period was beyond the normal ratio for similar offences. It had to examine the sentencing principles and the reasons provided by the trial judge for the non-parole period. The court considered whether the trial judge adequately justified the severity of the sentence and whether the absence of reasons for the non-parole period was a fundamental flaw in the sentencing process.

The court found that the sentence imposed was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the gravity of the offences. The court held that while the non-parole period was at the higher end of the spectrum, it was not so disproportionate as to render the sentence manifestly excessive. The court also noted that the absence of explicit reasons for the non-parole period did not necessarily invalidate the sentence, as long as the overall sentence was within the bounds of reasonableness. The appeal was ultimately dismissed, affirming the trial court's decision.

The court ordered that the appeal be dismissed and the original sentence confirmed. It emphasised that while the absence of explicit reasons for the non-parole period was not ideal, it did not undermine the overall sentence's validity. The decision reinforced the importance of clear reasoning in sentencing, but also acknowledged that minor deficiencies in the explanation of the non-parole period would not automatically render a sentence unlawful.

Orders