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Murray v The King

Murray v The King

Case [2024] NSWCCA 107 21 June 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Murray v R [2024] NSWCCA 107
Hearing dates: 8 May 2024
Date of orders: 21 June 2024
Decision date: 21 June 2024
Before: Bell CJ at [1];
Hamill J at [2];
Yehia J at [3]
Decision:
(1)   Grant leave to appeal and extend the time within which to appeal.
(2)   The appeal against sentence is allowed.
(3)   The sentence imposed by Judge Coleman SC is quashed and in lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 6 years commencing on 26 September 2021 and expiring on 25 September 2027 with a non-parole period of 3 years and 6 months expiring on 25 March 2025.

Catchwords:
CRIME – appeals – appeal against sentence – totality – whether the principle of totality was applied to overall terms of imprisonment – concurrency and accumulation where the applicant is serving a sentence for unrelated matters – error established – re-sentenced

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 24, 32, 47(2), 47(3)
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 10(b)

Cases Cited:
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Carroll v R [2015] NSWCCA 219
Christian v R [2021] NSWCCA 300
DB v R [2024] NSWCCA 18
Deakin v R [2014] NSWCCA 121
Elmir v R [2023] NSWCCA 260
Harris v R [2023] NSWCCA 44
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Close (1992) 31 NSWLR 743
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
Sausa v R [2023] NSWCCA 95
Warwick v R [2016] NSWCCA 183

Category: Principal judgment
Parties: Jamie Bruce Murray (Applicant)
Rex (Respondent)
Representation:
Counsel:
K Averre with H Thomas-Dubler (Applicant)
V Garrity (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/00342329; 2020/00369276; 2021/00244279; 2021/00244283
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 October 2022

Before:

Coleman SC DCJ

File Number(s):

2020/00342329; 2020/00369276; 2021/00244279; 2021/00244283

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Jamie Bruce Murray, was sentenced in the District Court for a set of 10 offences (“the subject offences”) on 14 October 2022 by Coleman SC DCJ. He received a sentence of an aggregate term of 6 years imprisonment with a non-parole period of 3 years and 6 months (“the aggregate sentence”). The aggregate sentence was backdated by 292 days to take into account the time that the applicant had spent in custody that was solely referable to the subject offences. The aggregate…

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 Murray v The King

Details

AGLC: Murray v The King [2024] NSWCCA 107
Case: [2024] NSWCCA 107
Decision Date: 21 June 2024

CaseChat Overview and Summary

The case of Murray v The King involved the appellant, who was serving concurrent sentences for two unrelated matters. The appeal was against the sentence imposed, specifically whether the principle of totality was correctly applied to the overall terms of imprisonment. The matter was heard in the High Court of Australia. The appellant argued that the trial judge did not properly consider the principle of totality in the sentencing process, which resulted in an unduly harsh cumulative sentence.

The primary legal issue was whether the trial judge had erred in not applying the principle of totality when sentencing the appellant. The principle of totality refers to the consideration of the cumulative effect of concurrent sentences, ensuring that the overall punishment does not exceed what would have been imposed if the sentences were consecutive. The appellant contended that the trial judge did not sufficiently take into account the effect of the concurrent sentences when determining the appropriate term of imprisonment. The court was required to examine the sentencing process and determine if an error had been made.

The High Court held that the trial judge did indeed err in not applying the principle of totality in the sentencing process. The court found that the judge had not adequately considered the cumulative effect of the concurrent sentences, which resulted in an unduly harsh overall term of imprisonment. The principle of totality must be applied to ensure that the cumulative effect of concurrent sentences does not exceed what would have been imposed if the sentences were consecutive. The court concluded that an error had been established and ordered a re-sentencing of the appellant.

The High Court ordered that the appellant be re-sentenced by the trial judge, who must now apply the principle of totality to determine the appropriate term of imprisonment. The court emphasised the importance of considering the cumulative effect of concurrent sentences to prevent unduly harsh overall terms of imprisonment. The trial judge must now re-evaluate the sentence, taking into account the principle of totality, and impose a sentence that appropriately reflects the cumulative effect of the concurrent sentences.

Orders