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. Further action by the applicant had resulted in 18 payments to those accounts, the amount of the payments totalling $375,895.26.

The sentencing Judge’s findings

7 His Honour, as to the objective criminality of the offences, found the offences seemed to have been planned in the sense that a scheme was designed so that the offender’s intention of obtaining a gain from the Commonwealth entity would be difficult to detect. By these offences the offender created the means of accessing $375,000 worth of Commonwealth funds, the offences occurred over an 18 month period, the offences involved a significant breach of trust and were committed primarily for greed. The intention of obtaining a gain was consummated on 18 discrete occasions

8 As to subjective features his Honour found the plaintiff was born in May 1978, was in good health, a single woman with no dependants. The applicant, in her record of interview, had sought to blame her actions on a major gambling habit. His Honour did not accept her gambling problem, if it existed at all, was anything near as major as she claimed as it was clear considerable sums were spent on lifestyle issues. He considered she was motivated in offending by a compulsive spending habit and perhaps to a lesser degree by a gambling problem. What had motivated her compulsive spending or her gambling was a mystery. Her references were all positive and she appeared to have the support of her family and friends according to them. There had been no public expression of remorse. His Honour however was prepared to find some contrition and insight into the offending although it would appear limited by its nature.

9 His Honour considered there were a number of positive rehabilitation indicators in that it was said she had the support of her family, she had a good work history and had been able to find employment post her offending period, there were no prior convictions, she had some insight into her offending and recognised without malice or resentment the need for punishment, she appeared to enjoy good physical health, and there did not appear to be any drug or alcohol issues in need of resolution. His Honour allowed a discount of 25% for the pleas of guilty.

10 These positive indicators were somewhat qualified by other considerations which his Honour noted as:

(i) her frankness as to her motives for committing these offences, and more particularly her seeking such a large income stream, has been less than complete;
(ii) there appears to me unexplained and perhaps unresolved issues concerning her money spending patterns;
(iii) if it be the fact, her gambling habits, which appear so far as her money spending is concerned, to have a compulsiveness, and
(iv) lifestyle choices, that are inconsistent with her upbringing (as I have assumed it to be) to an extent where they may be bizarre.

11 His Honour concluded:

What, if any, impact her past spending patterns would have on her rehabilitation is less clear, although it may well be that since August of 2004 when she was charged those spending patterns have been curtailed. If so that would be a positive rehabilitation indicator. All over, I have viewed her rehabilitation prospects as positive.

Ground Two – The sentence is manifestly excessive

12 The applicant in her written submissions concluded as to this ground:

Having regard in each case to the maximum penalty of five years, which when discounted for the plea of guilty was effectively one of three years and nine months, the imposition of an overall sentence of three years and three months for the offences given the applicant’s age, previous good character, admissions and prospects of rehabilitation is manifestly excessive.

13 The respondent, in its written submissions, responded:

For eleven serious offences committed over the course of eighteen months, involving repeated flagrant breaches of trust by a Commonwealth employee, the imposition of a total aggregate head sentence of three years and three months, with a non-parole period of two years and seven [sic, three] months, is an appropriate sentence to arrive at in the exercise of the sentencing judge’s discretion. This is particularly so in the present case where no evidence was presented by the Applicant and the subjective features that were able to be determined were neither compelling nor special in any respect. Accordingly, in all of the circumstances the ultimate sentence imposed cannot be said to be manifestly excessive.

14 I accept the Crown’s submission that the total aggregate head sentence was not manifestly excessive. Indeed I regard that sentence as lenient.

Ground One – The sentencing Judge erred in setting the non parole period.

15 His Honour imposed a single non parole period as he was required to do by s 19AB(1) of the Crimes Act 1914 (Cth). The ratio of the non parole period of 2 years 3 months to the aggregate effective sentence of 3 years 3 months was approximately 69%.

16 The applicant submitted the norm for non parole periods in Commonwealth offences was in the range of about 60% - 66 2/3% - R v Bernier (1998) 102 A Crim R 44. She submitted his Honour had erred in not fixing the ratio within that range. She relied upon the decision of this Court in R v Campos (1999) NSWCCA 339 where this Court varied a non parole period of 70% of the head sentence to 60% thereof. That case is however distinguishable from the present. In that case the sentencing Judge had found the offender’s prospects of rehabilitation were higher than average. It was held on appeal that the sentencing Judge clearly intended to set a proportionally lower non-parole period yet he had done the opposite.

17 The range of 60% - 66 2/3% is not immutable. In R v Bernier this Court said:

… the norm for non parole periods is in the range of about 60% - 66 2/3%. One factor which may be material is the length of the head sentence and its position in the permissible range. Circumstances may exist which make it appropriate to move outside the usual range for a non parole period. The process is not mathematical or rigid, and often requires a finely tuned assessment.

18 In R v Stitt (1998) 102 A Crim R 428 at 432 Dunford J (with whom Beazley JA and Wood CJ at CL) agreed said:

Generally speaking, in relation to federal offences … non parole periods have generally varied between 60 – 75 percent with periods of 75 percent being rare and limited to the more serious cases where the prospects of rehabilitation have not been considered good.

19 In R v Lian (1990) 47 A Crim R 444 at 449 this Court held:

Although the purposes of the head sentence and minimum term (or non parole period) are to some extent different, they are necessarily related. This point was made by the High Court in Power (1974) 131 CLR 623 at 628:
In a true sense the non parole period is a minimum period of imprisonment to be served because the sentencing Judge considers the crime committed calls for such detention.

20 More recently in R v Moore (2005) NSWCCA 212 this Court held:

Whilst due allowance should always be made for the subjective circumstances of an offender, including an offender’s age and health, the ultimate sentence imposed, both as to the non parole period and the head sentence, must not be disproportionate to the objective gravity of the offence.

21 His Honour’s conclusion that the applicant’s rehabilitation prospects were positive would, ordinarily, have resulted in the imposition of a non parole period in the range of 60% – 66 2/3% of the aggregate effective sentence.

22 His Honour however selected a non parole period which yielded a ratio to the aggregate effective sentence of approximately 69%. It may be his Honour intended to depart from the normal ratio because he considered the circumstances made it appropriate to do so. However he did not say that that was his intention nor did he give any reasons for so doing.

23 In R v Bugeja [2001] NSWCCA 196 at [43] Adams J said:

… there should have been some advertence to the extent to which the non parole period conventionally appropriate did not provide adequate and sufficient personal deterrence and did not reflect the other purposes of sentencing law.

24 Notwithstanding that the Crown had referred, in its written submissions on sentence, to the principles relevant to fixing the ratio (the applicant was self represented and made no such submissions) his Honour’s failure to refer to the ratio between the non parole period and the aggregate effective sentence in his Remarks on Sentence leads to the inference that he did not turn his mind to that question.

25 In these circumstances I have concluded that error has occurred and that the non parole period should be varied to reflect his Honour’s findings as to the applicant’s rehabilitation prospects and the normal range referred to in R v Bernier.

26 The orders which I propose are as follows:

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.

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