Murphy v Regina - [2005] NSWCCA 412

Reported Decision:
158 A Crim R

New South Wales

Court of Criminal Appeal

CITATION:
Murphy v Regina [2005] NSWCCA 412

HEARING DATE(S): 28/11/05

JUDGMENT DATE:

2 December 2005

JUDGMENT OF:
Studdert J at 1; Whealy J at 2; Howie J at 8

DECISION:
I propose that the application for leave be granted, the appeal allowed and the sentence imposed by her Honour be quashed. In place of that sentence I propose that the applicant be sentenced to a term of imprisonment of three and a half years. The sentence is to commence on 21 November 2003. I propose a non-parole period of two years and three months. The balance of the sentence should be for a further fifteen months. The applicant will be eligible for parole on 20 February 2006.

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act

CASES CITED:
Lowe v The Queen (1984) 154 CLR 606
Regina v Wickham [2004] NSWCCA 193 per Howie J
Regina v Shankley [2003] NSWCCA 253 at (31)
Regina v Johnson [2004] NSWCCA 76
R v Atonio [2005] NSWCCA 200 at para 17
Regina v Steel ( unreported NSWCCA 17 April 1997)
Parr v Diamond (unreported NSWCCA 18 February 1993)
R v Hooper (unreported NSWCCA 19 November 1998)

PARTIES:
Michelle Leanne Murphy v Regina

FILE NUMBER(S):
CCA 2005/1279

COUNSEL:
Mr J. Stratton SC - Appellant
Mr W. Dawe QC - Crown

SOLICITORS:
S. O'Connor - Legal Aid Commission of NSW
S Kavanagh - DPP

LOWER COURT JURISDICTION:
District Court

LOWER COURT JUDICIAL OFFICER:
Murrell DCJ

- 1 -

2005/127

STUDDERTJ
WHEALY J
HOWIE J

Michelle Leanne MURPHY v REGINA

Judgment

1 STUDDERT J: I agree with Whealy J

2 WHEALY J: This is an applicantion for leave to appeal against severity of sentence. On Friday 18 June 2004 the applicant entered a plea of guilty to a single count of conspiring to commit an armed robbery with an offensive weapon. On 9 September 2004 her Honour Judge Murrell sentenced the applicant to a head sentence of four years three months with a non-parole period of three years.

3 The co-conspirators were Peter Wilson and Wayne Davis. The latter was the de facto husband of the applicant and the father of their child.

4 The problem which has arisen has done so in a not unfamiliar context . The applicant herself was sentenced, as I have said, on 9 September 2004. The co-conspirators were not sentenced until 4 March 2005 and were sentenced by another judge, Hosking DCJ.

5 It is convenient to set out at this stage what happened to the co-offenders. Wilson who was plainly the principal co-conspirator was sentenced to four and a half years with a non-parole period of three years. Next in rank was Davis who was sentenced to five years five months with a non-parole period of four years.

6 The conspiracy entered into by the three offenders related to a plan to commit an armed robbery upon Chubb Security staff during cash in transit activity…

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 [2005] NSWCCA 412
Case: [2005] NSWCCA 412
Decision Date: 2 December 2005

CaseChat Overview and Summary

Michelle Leanne Murphy appealed against the severity of her sentence for conspiring to commit an armed robbery with an offensive weapon. The appeal was heard in the New South Wales Court of Criminal Appeal. The primary legal issue was whether the disparity in sentencing between Murphy and her co-conspirators, who received less severe sentences despite similar roles, warranted a reduction in her sentence. Murphy argued that the disparity created a legitimate sense of grievance. The Crown contended that the sentences were within the proper sentencing range and that the disparity did not justify intervention.

The Court of Appeal found that the sentencing judge did not err in considering Murphy's criminal history, but did find that the disparity between the sentences was significant enough to warrant intervention. Murphy's role in the conspiracy was less severe than that of her co-conspirators, and she entered a plea of guilty earlier. The Court concluded that the disparity in sentencing created a legitimate sense of grievance for Murphy. Therefore, the appeal was allowed, and Murphy's sentence was reduced to a term of imprisonment of three and a half years, with a non-parole period of two years and three months.

The final orders were that the application for leave be granted, the appeal allowed, and the sentence imposed by the sentencing judge be quashed. In its place, Murphy was sentenced to three and a half years imprisonment, with eligibility for parole on 20 February 2006.

Orders