Murphy v The Queen
[2000] TASSC 169
•7 December 2000
[2000] TASSC 169
CITATION: Murphy v R [2000] TASSC 169
PARTIES: MURPHY, Daniel Francis
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CA 75/1996
DELIVERED ON: 7 December 2000
DELIVERED AT: Hobart
HEARING DATE: 30 October 2000
JUDGMENT OF: Cox CJ, Slicer and Blow JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - General principles - Whether sentence was manifestly excessive - Weight to be given to appellant's plea of guilty, remorse, emotional stress and co-operation with police.
R v Dowie [1989] Tas R 167; Pavlic v R (1995) 5 Tas R 186, referred to.
Aust Dig Criminal Law [1003]
REPRESENTATION:
Counsel:
Appellant: G W Tremayne
Respondent: T J Ellis
Solicitors:
Appellant: Griffits & Jackson
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 169
Number of paragraphs: 26
Serial No 169/2000
File No CA 75/1996
DANIEL FRANCIS MURPHY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
SLICER J
BLOW J
7 December 2000
Orders of the Court:
Appeal dismissed.
Serial No 169/2000
File No CA 75/1996
DANIEL FRANCIS MURPHY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
7 December 2000
The appellant pleaded guilty to one count of murder and was sentenced to imprisonment for 24 years from the day on which he was taken into custody. The learned sentencing judge declined to set a non-parole period and in consequence the appellant will be eligible to apply for parole at the expiration of one-half of his sentence (Parole Act 1975, s12A). He appeals the sentence on the basis that it is manifestly excessive in all the circumstances.
The nature and circumstances of the crime and of the appellant are encapsulated in the learned sentencing judge's comments on passing sentence. They were, so far as is material to the issues raised in this appeal, as follows:
"The prisoner has pleaded guilty to one count of murder. On 16 December 1995 he murdered his wife by means of a single discharge of a shotgun. It is accepted that the crime falls within the Criminal Code, s157(1)(a), ie, that it was committed with an intention to cause the death of the deceased. Not only was there an intention to kill, but there was a significant degree of planning.
At the time of the commission of the crime the prisoner and the deceased had been married for about two years, but they had earlier lived together in a de facto relationship for some years. He is aged 30 years. The deceased was somewhat younger than the prisoner. They had four children, the eldest of whom is now aged eight years.
The relationship was volatile and had been punctuated by a number of periods of separation. Those separations occurred at the instance of the deceased. In December 1995 the deceased entered into a relationship with another man. About a day or so prior to the commission of the crime the deceased once again left the prisoner and he became aware of the relationship.
During the early part of the afternoon of 16 December 1995, arrangements were made whereby the deceased and the prisoner would meet at the home of mutual friends, Mr and Mrs Hubbard at 5pm. The prisoner did not initiate this meeting. Its stated purpose was to discuss the arrangements to be made for the couple's children. Shortly after the meeting had been arranged, the prisoner determined that he would use the opportunity presented by it to kill the deceased. He set about making the necessary arrangements. He purchased a firearm from a friend. He went to a shop at Boat Harbour and endeavoured to purchase ammunition. None was available, so the prisoner went to his workshop and located some ammunition in a tool box. He cut the barrel and butt off the firearm. He test fired it. He cut down the firearm so that he could more readily conceal it upon arrival at the Hubbard house. During the course of the afternoon the prisoner spoke to various persons. Outwardly he appeared calm and discussed everyday subjects, although I accept that he was in some turmoil emotionally.
The prisoner drove to the Hubbard house and arrived there at about 5pm. The deceased was present as were Mr and Mrs Hubbard and their young children. The prisoner went to the front door, leaving in his vehicle the firearm and a briefcase which he intended to use to conceal it. He inquired from Mrs Hubbard's 10 year old son where his wife was. He told the prisoner that she was in the lounge room at the rear of the house. The prisoner thereupon returned to his vehicle, grabbed the shotgun and briefcase and walked into the house, hiding the gun behind the briefcase. Before the prisoner did anything, Mrs Hubbard saw that he had a gun and immediately dialled the police emergency number. The prisoner walked into the lounge room. Mr Hubbard was in that room, as was the deceased, who was seated in a chair. The prisoner walked up to her and said 'you have been screwing around on me and you won't do it any more'. With that he placed the end of the gun on her chest and discharged it. The resultant gunshot wound caused major trauma and almost instantaneous death.
Mr Hubbard grabbed the prisoner and a struggle between them ensued. They ended up outside the house. Before Mr Hubbard grabbed the prisoner, the latter threw the gun at the body of the deceased, just missing it. The prisoner said to Mr Hubbard 'I've killed her Geoff, I've shot her in the heart - she won't screw around on me any more'. At this stage Mrs Hubbard was still speaking on the telephone but was in a most distraught state. Her 14 year old daughter took over on the telephone. Mrs Hubbard observed the deceased's leg moving, apparently as the result of a reflex muscle movement. She thought that it indicated that the deceased was still alive and said as much. Thereupon, the prisoner broke free from Mr Hubbard, ran back into the house and stabbed the dead body of the deceased in the back with a knife, which he had on his belt, saying 'this will make certain you're dead you bitch'. A further struggle between Mr Hubbard and the prisoner ensued and the former held him until police arrived.
I accept the submission made by counsel for the Crown that the present case is a very serious example of the crime of murder. Particular aggravating factors are the degree of premeditation involved and the fact that the prisoner committed this horrendous crime in the home of friends in their presence and in the presence of their young children.
The prisoner claims to be remorseful. Any remorse that he might have is of relatively recent origin. His act of stabbing the body of the deceased indicates that there was no immediate sense of remorse after he committed the crime. He was interviewed by police officers on the day he murdered the deceased. That interview does not indicate any remorse on his part. More than a month after the commission of the crime, the prisoner wrote a letter to the man with whom the deceased had had a relationship. Although the letter was couched in fairly careful terms, which may explain why it was permitted to be sent by the prison authorities, to the recipient it could have only conveyed a threat that the prisoner intended to have him killed as well. Whilst the prisoner is not to be punished for making the threat, the making of it indicates that at that stage there still was an absence of remorse.
When I pressed counsel for the prisoner as to the nature of the remorse, which had been asserted in very general terms, it became clear that it was twofold, namely that he was remorseful at having inflicted on Mr and Mrs Hubbard and their children the traumatic experience which occurred in their home and that he was sorry for himself at the predicament in which he found himself. I am not persuaded that there is any true remorse for the terrible act committed by the prisoner.
Counsel for the prisoner submitted that he ought to be given a lesser sentence than might otherwise be appropriate because of his plea of guilty. In many cases, it will be appropriate to take into account, as a relevant mitigating factor, a plea of guilty. However, I reject the submission that in every case where a prisoner pleads guilty to a crime he ought to receive a lesser sentence by reason of that plea. An acceptance of that submission would really amount to an acceptance of the proposition that persons who plead not guilty are to be punished more severely than those who plead guilty. It has been recognised by the Court of Criminal Appeal, in R v Lyons (1993) 69 A Crim R 307, that an offender who pleads guilty is not always entitled to some discount from what otherwise would be the appropriate sentence.
The prisoner's plea does not indicate true remorse. Not until the morning of the day on which his trial was due to commence was any indication given that he would plead guilty. The plea came as a complete surprise to the Crown. His plea may be described as bowing to the inevitable. His counsel accepts that no reasonable defence was available to him. In particular, he accepts that it is unlikely that provocation, which perhaps is faintly suggested by some of the materials in the papers, would have been left to the jury. In the absence of that defence and with no suggestion of a defence of insanity, the facts of the case are such that it is impossible to conceive that a jury would not have convicted the prisoner of murder had he maintained a plea of not guilty.
The plea has saved witnesses the trauma of having to re-live relevant events in the witness box. However, it may be assumed that they have had the trauma of re-living those events as they awaited the trial which they would have assumed was going to occur. Some saving of public monies has occurred as the result of a trial not having taken place. It would be a mistake to attach any significant weight to that saving. I have concluded that, whilst the plea of guilty cannot be discarded as an irrelevant fact, its weight in the overall sentencing process ought to be slight.
The circumstances of this case, the salient aspects of which I have recounted, clearly call for a severe denunciatory sentence, although of fixed duration. I consider the appropriate sentence to be one of twenty-four years' imprisonment."
The contentions raised by counsel for the appellant are that the learned sentencing judge failed to give any, or any adequate weight to the appellant's plea of guilty, to the remorse shown by him, to the emotional stress to which he had been subjected, and to his co-operation with the police following his arrest.
A plea of guilty, in most cases, will justify some reduction in an otherwise appropriate sentence, but the extent of any such reduction will vary significantly from case to case (R v Dowie [1989] Tas R 167 at 183 - 184, Pavlic v R (1995) 5 Tas R 186 at 192 - 193). In some cases, however, such a plea does not entitle the offender to any discount. R v Lyons (1993) 69 A Crim R 307 was such a case. The respondent had been convicted of murder in a particularly brutal attack perpetrated by him and his brother at a hotel. On appeal, the brothers' conviction stood but due to some errors in the summing up, the respondent's conviction for murder was quashed and he was ordered to be re-tried. The Crown accepted a plea of guilty to manslaughter. In these circumstances, I considered the plea was not a matter entitling him to any credit (at 310). Zeeman J took the same view (at 317). In the present case, the learned sentencing judge said he could not regard the plea as an irrelevant fact, but said that its weight in the overall sentencing process was slight. If the plea could have been regarded as indicative of remorse, I think it would have been entitled to greater weight, but for reasons which I will come to later, I think the learned sentencing judge was quite right in saying that the plea did not indicate true remorse. As it was, the plea, tendered on the morning of the appellant's arraignment, saved witnesses the trauma of having to re-live events in the witness box, but up until the announcement of the plea, the potential witnesses for the Crown would have had to focus their attention on these traumatic incidents and to prepare themselves psychologically to repeat them in the witness box. They would have had no certainty that their evidence would not be the subject of challenge. The plea also saved court time and the expenses of witnesses and jurors after the first day. In the absence of any genuine remorse as the motive for this course, I think the plea was entitled to only slight weight.
So far as remorse is concerned, the learned sentencing judge had ample material for rejecting any claim that the appellant was remorseful for his actions in murdering his wife. The events surrounding her death showed considerable foresight on his part and planning and the acquisition and testing of a weapon and its concealment as he came to a prearranged rendezvous with his wife in the home of mutual friends. The immediate event was accompanied by vengeful words, "you have been screwing around on me and you won't do it any more", and in the struggle with the male occupant of the house, the weapon was thrown at the deceased. A particularly chilling aspect of his conduct was that when reflex actions of the deceased's body suggested the possibility that she was still alive, the appellant broke free of his captor, ran back inside and stabbed the deceased with a knife on his belt, saying, "this will make certain you're dead, you bitch". He was no doubt in a state of emotional turmoil and this act of stabbing occurred shortly after the fatal act of shooting, but his Honour was quite entitled to regard it as indicative of an absence of any sense of remorse for his actions. In the interview with police which followed, little sign of remorse was apparent, the only one to which counsel could point being his statement at the end of the interview when asked if there was anything he wanted to tell the police about the matter, "Oh I'm just so sorry I can't believe I did it. I was just so mad so --- and so hurt. I just can't believe that she was seeing somebody else and I just can't believe that I shot her." About six weeks after the murder, the appellant wrote from the prison to his rival, who had put an obituary notice in the newspaper in respect of the deceased:
"David
Thanks for the notice in the paper 'forever in my thoughts' believe me when I say you are always in mine. I have some friends from Hobart who are going to pay you a visit in the near future. And I will see you as 'soon' as I am released.Regards
Daniel
PS I heard you might be moving back to NSW it would probably be for the best in the long term dont you think? Give my regards to Geoff & Judy Hubbard next time your thier (check out the nice view from the lounge room.) Its a great pity you couldn't be thier the last time I was? I had something for you but I'll have it passed on via a friend. hope to see you real soon. [sic]"
This was material fully justifying the learned sentencing judge's conclusion that the appellant was not remorseful for his actions.
Counsel for the appellant complains that his client's emotional stress was not taken into account in the sentencing process. He cites the dictum of Brennan J (as he then was) in Neal v R (1982) 42 ALR 609 at 624, where his Honour said:
"Emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence, though its mitigating effect can be outweighed by a countervailing factor (see D A Thomas Principles of Sentencing (2nd ed London, 1979) pp 194, 207). The sentencing court takes account of emotional stress in evaluating the moral culpability of the offender just as it is entitled to have regard to the motive for the offence (R v Bright [1916] 2 KB 441 at 444 per Darling J)."
Nevertheless, violent emotions cannot be allowed to excuse or significantly mitigate serious criminal conduct. I do not consider the appellant's emotional distress at his wife's determination to leave him and his children justified any significant reduction in the penalty for his deliberate execution of her.
The last complaint is of insufficient regard being had to the appellant's co-operation with the police. Again, I do not regard this as a significant factor. The appellant chose to murder his wife deliberately in full view of his friends and their young children. He seems to have adopted a fatalistic attitude when confronted by the investigating police called to the scene. This was not a case where his admissions led them to discover any inculpatory evidence not already known to them.
The crime was a very serious one and deserving of condign punishment for the reasons articulated by the learned sentencing judge. Comparison with the few other cases of domestic murder dealt with by this Court since the mandatory sentence of life imprisonment was abolished is not helpful. In particular, the case of Leaman, who was re-sentenced to imprisonment for 25 years (10 December 1996) affords a poor comparison, as the offender would have been over 70 years of age by the time that sentence was served; whereas the appellant, after 24 years in custody, will still only be 54 years of age and will be eligible for parole at the age of 42. In my opinion it has not been shown that the sentence was manifestly excessive. I would dismiss the appeal.
File No CA 75/1996
DANIEL FRANCIS MURPHY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
7 December 2000
In July 1996, the appellant was sentenced to a term of imprisonment for 24 years for the murder of his wife. He appeals against that sentence on the ground that the sentence was manifestly excessive. It is said that the sentence did not sufficiently reflect:
· the plea of guilty;
· remorse shown;
· emotional distress to which the appellant had been subjected;
· co-operation following arrest.
Factual Background
The appellant had lived with the deceased for a number of years and the couple had been married for two years with four children under the age of seven as of the date of the homicide. There had been a number of separations and, in December 1995, the deceased entered into a relationship, a fact made known to the appellant shortly before the killing. Some few days before 16 December 1995, the deceased again left the appellant.
Arrangements were made for the couple to meet on 16 December at the home of mutual friends so that they could discuss future arrangements for the children. Prior to that meeting, the appellant determined to take the life of his wife. He purchased a shotgun and obtained ammunition. He caused the barrel of the weapon to be shortened and removed the stock so as to facilitate concealment. He test fired the weapon. Whilst the learned sentencing judge accepted that at this time the appellant was inwardly in turmoil, he was able to engage in calm and rational conversation and conduct with others which evidenced a degree of self-control.
At about 5pm, the appellant went to the home where his wife was waiting. Present also were the occupants and their children. Having confirmed his wife's presence, the appellant went to his vehicle and returned with the shotgun. An occupant saw the weapon and immediately telephoned police. The appellant walked up to the deceased, who was seated, and said:
" … you have been screwing around on me and you won't do it any more."
He placed the shotgun to his wife's chest and discharged it, causing almost instantaneous death. The male occupant grabbed hold of the appellant, who threw the weapon at the body of the deceased, stating:
"I've killed her Geoff, I've shot her in the heart - she won't screw around on me any more."
At that stage the appellant, who believed that his wife might still be alive, broke free of the occupant, returned and stabbed her in the back with a knife brought to the house, saying:
" … this will make certain you're dead you bitch."
The appellant was restrained until police arrived.
The act of killing was planned and death intended at the time the weapon was discharged. The killing took place in the presence of close friends of the appellant and their children. The act was persisted with when the appellant believed his wife to be still alive and was accompanied by statements of vengeance. The sentence reflected an act of murder within the meaning of the Criminal Code ("the Code"), s157(1)(a). Accepting passion in general terms, the conduct, in particular the planning, evidenced not loss of control "before there (had) been time for his passion to cool", but persistence in a course of conduct designed to bring about the death of the appellant's wife.
The circumstances of the murder were such as to place it at the higher end of culpability.
Plea of Guilty
The appellant entered his plea on the morning of the trial. The case against him was overwhelming, comprising the evidence of eye witnesses, admissions recorded on videotape, evidence of planning and the nature of the weapon used. The discharge of a shotgun in contact with the body of the deceased, the accompanying words and the repetition of criminal conduct left no room for a verdict of manslaughter. The evidence of preparation, the time elapsed since he discovered his wife's relationship, the place and purpose of the meeting and the observations of others as to the manner of the appellant preceding the act of killing, precluded any recourse to the Code, s160. Whilst a plea simpliciter can constitute some basis for mitigation (Pavlic v R (1995) 5 Tas R 186), little effect ought be given when the plea simply reflects acceptance of the inevitable. When, as here, that plea is entered immediately prior to trial, then any benefit which might accrue because of the lessening of anxiety on the part of witnesses is lessened. The learned sentencing judge gave the plea such weight as it deserved.
Co-operation
The same propositions stated above apply to the co-operation given to police. The offender admitted his conduct but had been taken into custody at the scene of a crime committed in the presence of others and in circumstances which permitted no claim of accident or other cause for absence of responsibility.
Remorse
In many pleas in mitigation, remorse is stated as regret for conduct. In some cases, the assertion is made without any supporting evidence. Remorse is acceptance of and insight into conduct. Genuine remorse permits a form of reconciliation with self, victim, family and the community. A person might express remorse in the sense of regret at detection. Here, the learned sentencing judge was correct to conclude that the plea itself did "not indicate true remorse". There was little evidence suggesting genuine acceptance and insight. The immediate need for vengeance did not dissipate with the infliction of mortal injury to the victim. The offender repeated his conduct with further expressions of hostility. There was little expression of sorrow during the interview with police. The statement made at the conclusion of the interview, namely:
"Oh I'm just so sorry I can't believe I did it. I was just so mad. So … and so hurt. I just can't believe that she was seeing somebody else and I just can't believe that I shot her."
reflects regret for the position in which the appellant found himself. Subsequent conduct showed a continuation of hostility and justification, not acceptance of responsibility. Some time after the death of his wife, the appellant wrote to the person with whom his wife had had a relationship, a letter in the following terms:
"Thanks for the note in the paper 'forever in my thoughts'.
Believe me when I say you're always in mine. I have some friends from Hobart who are going to pay you a visit in the near future and I'll see you as soon as I am released.
Regards,
DANIEL
PS: I'd heard you might be moving back to New South Wales. It would probably be for the best in the long term, don't you think? Give my regards to Geoff and Judy Hubbard next time you're there. Check out the nice view from the loungeroom. It's a great pity you couldn't be there the last time I was. I'd something for you, but I'll have it passed on via a friend. Hope to see you real soon."
The addressee had, in fact, caused an in memoriam notice to be placed in a newspaper. The expressed threat is self-evidenced and the reference to the "view from the loungeroom" is to the room in which the appellant had murdered his wife in the presence of other persons.
The sentence properly reflected the evidence as to the existence, or otherwise, of remorse.
Emotional Stress
The appellant, aged 30, had no relevant criminal record. The learned sentencing judge accepted that the appellant was in a state of emotional turmoil during the period leading up to the act of murder. The effects of a breakdown in a relationship might vary between individuals, but the capacity to plan whilst giving the appearance of normality belies a degree of control which evidences vengeance rather than reactive and spontaneous passion. There had been previous separations and the learned sentencing judge had reason to describe the relationship as volatile. The conduct of the appellant suggests not loss of control by reason of emotional stress, but desire for retribution for loss of possession and compliance. Understanding of human frailty does not impose on the courts a responsibility to ignore the harm caused to another which, in this case, includes the offender's children. Some weight was afforded to the mental state of the appellant (Neal v R (1982) 42 ALR 609) but the sentence cannot be said to be manifestly excessive by reason of failing to sufficiently take it into account.
Comparable Penalties
There are but few cases within this jurisdiction which fall within the category of the form of murder committed by the appellant. Those cases (Leaman, 10 December 1996, Askeland v R A59/1983) show that the penalty imposed was within the permitted range of penalty. Other cases put forward by counsel for the appellant (Simpson, 28 February 1996, Clark A21/1996, Williams A64/1995) are not comparable. The sentence imposed could not be said to be manifestly excessive by reference to other decisions of this Court.
Conclusion
In my opinion, the sentence of 24 years, especially since a non-parole period was not fixed, cannot be said to be manifestly excessive. In my opinion, the appeal ought be dismissed.
File No CA 75/1996
DANIEL FRANCIS MURPHY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
7 December 2000
I have read the reasons for judgment of the learned Chief Justice and Slicer J in draft form. I agree with all they have written, but would like to add a couple of things.
The appellant's counsel submitted that one reason why the learned sentencing judge should have given greater weight to his plea of guilty was that the appellant thereby gave up all hope of an acquittal or of a conviction for manslaughter or some other crime less serious than murder. No doubt there are cases when the giving up of a chance of acquittal or of conviction for a crime less serious than the one charged ought to be given significant weight for sentencing purposes after a plea of guilty, particularly when the accused pleads guilty out of remorse. This was not such a case, since there was no realistic chance of the appellant being acquitted of murder. The evidence Mr and Mrs Hubbard could have given would have been sufficient to establish beyond any doubt that he deliberately killed his wife. There was no scope for an alternative verdict of manslaughter. Although the circumstances of his wife's relationship with another man might at one stage have been sufficient for him to have lost his self-control, he had had ample time for his passions to cool, and was not acting on the sudden in response to provocation within the meaning of the Criminal Code, s160(2). The chances of the appellant being convicted of manslaughter or acquitted altogether were so unrealistic that, for the purposes of sentencing, he should not receive any credit for having abandoned the possibility of any such result.
In relation to the contention that the learned sentencing judge attached insufficient weight to the appellant's remorse, I think it significant that his Honour clarified the nature of the appellant's remorse in a discussion with his then counsel after the plea of guilty was entered. It appeared that the appellant was sorry for Mr and Mrs Hubbard and their family, who had suffered the consequences of him killing his wife in their home in their presence, sorry for his children, and sorry for himself, but not the least bit sorry for having taken the life of his wife. That being the extent of his remorse, I do not think it can be said that the learned sentencing judge ought to have given it greater weight.
I would dismiss the appeal.