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Shaun Jabaltjari Murphy v The Queen [2005] NTCCA 15

PARTIES: MURPHY, Shaun Jabaltjari

THE QUEEN

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 10 of 2005 (20417309)

DELIVERED: 11 November 2005

HEARING DATE: 2 November 2005

JUDGMENT OF: MILDREN, RILEY & SOUTHWOOD JJ

CATCHWORDS:

CRIMINAL LAW – APPEAL – SENTENCE

Two offences of aggravated assault and one offence of doing a dangerous act – whether sentence manifestly excessive – previous criminal history – whether sentences should be served cumulatively – three offences were separate facets of the one multifaceted course of conduct – partial accumulation of the sentences appropriate.

Sentencing Act (NT) s 50

Attorney-General v Tichy (1982) 30 SASR 84 at 92 and 93, applied.
Brown v Lynch (1982) 15 NTR 19 at 11 and 12, applied.
Dicker v Ashton (1974) 65 LSJS (SA) 150 at 151, applied.
Dooley v The Queen [2003] NTCCA 6, cited
Miles v The Queen [2004] NTCA 9 at [36], applied.
Salmon v Chute (1994) 94 NTR 1 at 24, applied
Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at 477, applied.

REPRESENTATION:

Counsel:
Appellant: V. Whitelaw
Respondent: W.J. Karczewski QC with C. Roberts

Solicitors:
Appellant: Central Australian Aboriginal Legal Aid Service Inc
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: ril0528
Number of pages: 14

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Shaun Jabaltjari Murphy v The Queen [2005] NTCCA 15
No CA 10 of 2005 (20417309)

BETWEEN:

MURPHY, Shaun Jabaltjari
Appellant

AND:

THE QUEEN
Respondent

CORAM: MILDREN, RILEY and SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 11 November 2005)

MILDREN J:

[1] I have read a draft of the judgments prepared by Riley and Southwood JJ. I agree that the appeal should be allowed for the reasons given by their Honours. I also agree with the sentencing orders proposed by Riley J.

RILEY J:

[2] On 7 April 2005 the appellant pleaded guilty to three offences that occurred on 27 July 2004. The offences consisted of an aggravated assault committed upon CB, an aggravated assault committed upon JJ and the doing of a dangerous act.

[3] On 27 July 2004 the appellant and CB were living in McLaren Creek. They had been in a relationship for about four weeks. On that day the appellant, CB and others had been drinking beer at a location near to the McLaren Creek community. They subsequently returned to their home and continued drinking. At about 11.30 pm an argument developed between them and a short time later the appellant left the house saying that he was going to hang himself. He had a rope and began to tie it to the house. The victim, CB, grabbed him around the waist in order to prevent him harming himself and as she was doing so the appellant punched her with his right clenched fist on…

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 The Queen

Details

AGLC: Murphy v The Queen [2005] NTCCA 15
Case: [2005] NTCCA 15
Decision Date: 11 November 2005

CaseChat Overview and Summary

Shaun Jabaltjari Murphy appealed to the Court of Criminal Appeal of the Northern Territory against the severity of the sentence imposed upon him. He had pleaded guilty to two counts of aggravated assault and one count of doing a dangerous act, all occurring on 27 July 2004. The sentencing judge had imposed cumulative sentences for these offences, which were also to be served cumulatively upon a pre-existing sentence for a prior assault occasioning bodily harm, resulting in a total effective sentence of 10 years imprisonment with a non-parole period of seven years.

The legal issues before the Court of Criminal Appeal were whether the head sentence of eight years for the three offences was manifestly excessive, and whether the sentencing judge erred in ordering the sentences to be served cumulatively, failing to give sufficient weight to the principle of totality and the appellant's plea of guilty. A significant factor considered was the appellant's extensive criminal history, which included numerous prior convictions for violence, including aggravated assaults and offences involving weapons.

The Court reasoned that while the appellant's criminal history demonstrated a continuing attitude of disobedience of the law, warranting consideration for retribution, deterrence, and protection of society, the sentence for the dangerous act offence was manifestly excessive. The Court also found that the three offences, though distinct, constituted a single multifaceted course of criminal conduct occurring over a short period and in close proximity. Therefore, it was an error to order the full accumulation of these sentences. The Court applied principles from cases such as *Veen v The Queen (No 2)* regarding the relevance of antecedent criminal history, and *Attorney-General v Tichy* and *Brown v Lynch* concerning the cumulation of sentences for offences arising from a single course of conduct.

The appeal was allowed. The Court re-sentenced the appellant, imposing a sentence of three years and six months for the dangerous act offence, and directing that the sentences for the three offences be partially accumulated. The total head sentence for these offences was reduced to six years and six months, and this was to be served cumulatively upon the pre-existing sentence, resulting in a new total effective sentence of seven years and six months imprisonment, with a non-parole period of five years.

Orders