Murray v The Queen

Case [2006] NTCCA 9

Murray v The Queen [2006] NTCCA 09

PARTIES:   MURRAY, Eric James

v

THE QUEEN

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

JURISDICTION:   CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:   CA 11 of 2005 (20320761)

DELIVERED:   10 May 2006

HEARING DATES:   23 February 2006

JUDGMENT OF:   MARTIN (BR) CJ, MILDREN & THOMAS JJ

APPEAL FROM:   R v Murray, Sentencing Remarks, Riley J, 18 April 2005

CATCHWORDS:

CRIMINAL LAW

Appeal against sentence – indefinite sentences incorrectly imposed on all counts – appeal allowed – appellant re-sentenced – fixed term imposed.

Sentencing Act (NT), subdivision 4 of Division 5, s 51, s 52, s 53, s 55, s 55A, s 62, s 63, s 65, s 65(1), s 65(8), s 65(9), s 66, s 67, s 70, s 71, s 72, s 73, s 74, s 74(3)(a), s 74(3)(c), s 112

Fox and Freiberg, Sentencing, 2nd ed, Oxford University Press, Melbourne, 1999; Pearce and Geddes, Statutory Interpretation in Australia, 5th ed, Butterworths, Sydney, 2001

Green v The Queen (1999) 9 NTLR 138; applied

Chester v The Queen (1988) 165 CLR 611; McGarry v The Queen (2001) 207 CLR 121; Buckley v The Queen (2006) 224 ALR 416; Saxon v The Queen (1998) 1 VR 503; followed

Pearce v The Queen (1998) 194 CLR 610; referred to

REPRESENTATION:

Counsel:

Appellant:   S Cox QC

Respondent:   D Lewis

Solicitors:

Appellant:   Northern Territory Legal Aid Commission

Respondent:   Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:   Mil06374

Number of pages:   57

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

Murray v The Queen [2006] NTCCA 09

No. CA 11 of 2005 (20320761)

BETWEEN:

ERIC JAMES MURRAY

Appellant

AND:

THE QUEEN

Respondent

CORAM:     MARTIN (BR) CJ, MILDREN & THOMAS JJ

REASONS FOR JUDGMENT

(Delivered 10 May 2006)

Martin (BR) CJ:

Introduction

  1. On 21 January 2005 the appellant was found guilty by a jury of seven crimes committed between 29 September and 2 October 2003. On each count the learned sentencing Judge sentenced the appellant to an indefinite term of imprisonment deemed to have commenced on 3 October 2003. His Honour specified a single nominal sentence of 28 years. In arriving at that period, his Honour indicated he had considered the following provisional periods as appropriate for the individual crimes:

Count 1 Threatening to kill 1 year
Count 2 Deprivation of liberty 3 years and 6 months concurrently with count 1
Count 4 Aggravated Assault 2 years concurrently with counts 1 and 2
Counts 3, 5, 8 and 9 Unlawful sexual intercourse without consent 14 years on each count concurrently with counts 1, 2 and 4 and concurrently with each other to the extent of 7 years on each count (cumulative total 28 years)

  1. The appellant appeals against the indefinite sentences on the basis that indefinite sentences could not be imposed with respect to the crimes in counts 1,…

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Murray v The Queen [2006] NTCCA 9
Case
[2006] NTCCA 9
Decision Date

CaseChat Overview and Summary

The appellant, Murray, appealed against his indefinite sentences for several counts of serious sexual offences, arguing that such sentences were not applicable to the crimes in counts 1, 2 and 4. Furthermore, Murray contended that the imposition of indefinite sentences was inappropriate, and that the total nominal sentence of 28 years was excessively long. The appeal was heard by the court, which had to determine whether the indefinite sentences imposed were legally sound and appropriate given the nature of the crimes and the circumstances surrounding them.

The primary legal issue before the court was whether the imposition of indefinite sentences for the crimes in counts 1, 2, and 4 was permissible under the relevant statutory provisions. Additionally, the court needed to assess whether the sentences were appropriate in light of the appellant's crimes and the principles of sentencing. The court also had to consider whether the total nominal sentence of 28 years was manifestly excessive.

The court found that the imposition of indefinite sentences on counts 1, 2 and 4 was not legally permissible, as the relevant statutory provisions did not allow for such sentences in these circumstances. The court also considered the nature and severity of the crimes, and concluded that while the crimes were heinous, the imposition of indefinite sentences was not an appropriate response. The court held that a fixed-term sentence was more suitable, taking into account the appellant's criminal history and the need for rehabilitation. The court further determined that the total nominal sentence of 28 years was excessive, and re-sentenced the appellant to a fixed term that reflected the appropriate balance between punishment, deterrence, and rehabilitation.

The court's final orders were that the appeal be allowed, the indefinite sentences on counts 1, 2 and 4 be quashed, and the appellant be re-sentenced to fixed terms for each of the counts, with the total nominal sentence being reduced to an appropriate level. The court also directed that the sentences be served concurrently, taking into account the appellant's age and health.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against the indefinite sentences on the basis that indefinite sentences could not be imposed with respect to the crimes in counts 1, 2 and 4. Irrespective of that technical error, the appellant submitted that the imposition of indefinite sentences was not an appropriate disposition. In addition it was contended that the total nominal sentence of 28 years is manifestly excessive. Facts of offending The trial before the jury occupied nine days. The appellant was found not guilty of two counts of unlawful sexual intercourse with the victim without her consent, but was convicted on the remaining counts to which I have referred. The factual findings of the sentencing Judge upon which sentence was based were as follows:“The circumstances of the offending are clear. At the time you were aged 57 years and your victim was aged 17 years. She was living with a family in Moulden. She had met you through friends and she had been to your unit on a couple of occasions.On 29 September 2003 she had been at a nearby residence with friends and had gone to your unit to obtain a cigarette. She then returned to her friends at the nearby residence. A little later she went back to your unit to obtain further cigarettes. You invited her in and then locked the door behind her.Whilst she was in the unit you produced a criminal record which related to yourself and which included convictions for murder and rape. You showed her that record and made her read through the document. She became frightened and asked to go home. You then directed her attention to the final page of the document where she found a handwritten note. The note said, ‘Don’t make any sound. Don’t you try anything. Don’t you talk. You just sit there and shut up. If you try anything I will hurt you bad. You go that?’In the process of producing this material to her you pushed her into a chair and grabbed the handlebar of a bike which was located on the table and pushed it against her neck or cheek. You grabbed her left breast and twisted it. She, of course, was extremely frightened. You left the room and came back with torn pieces of sheet which you used to tie her up. You were also carrying weapons which included sharpened tent pegs. She was tied and gagged.You then sat next to her and started rubbing her leg on the upper thigh. You were saying dirty things to her. She was unable to respond because she was tied and gagged. You then untied her and told her to take her clothes off. She did so because she was scared. You obtained some baby oil and put that on your penis. You placed her hands above her head and raped her vaginally.She told you that she was feeling sick and you obtained a bucket in which she could vomit. She then asked if she could have a shower and you permitted her to do so, although you stayed with her. She sat in the shower with her head down being sick.On the occasion of raping her you had her suck your penis, lick your nipples and lick a scar that you have on your chest. That happened repeatedly during the course of the episodes that followed over the next few days and is part of the context in which the offending occurred.On that night she made a desperate attempt to escape. You had left her alone in the shower and she ran naked through the back door and out into the yard. She tried to jump the fence. You chased after her and caught her, pulling her off the fence. You had her on the ground and held something sharp to her throat. You told her, ‘If you move I’ll kill you’. You then dragged her inside the house and punched her in the face and the head. She described this as ‘full on’ punching. You hit her with a bar on her legs and stomach area and the injuries suffered in that attack are obvious in the photographs.You stood her against the wall and grabbed her by the throat and punched her in the face. You said words to the effect of, ‘Nobody can hear you. Nobody can see you. Nobody knows where you are. I’ll do whatever I want with you’. The impact that had upon her was to be expected. She was terrified. Later you went to sleep. She remained tied up and she did not sleep.During the course of the following day, 30 September 2003, you again raped her. She was tied up throughout the day. She complained at having been raped upon at least two occasions at your unit on that day, but you have only been charged with and found guilty of one rape. I will deal with you in relation to that offence alone.Evidence of other acts with which you have not been charged has only been received in order to place all of the occurrences into a context. You will only be sentenced for the offences of which you have been found guilty.At about 8pm on 30 September 2003 you told your victim that the two of you were going into Mindil Beach on your pushbike. You gathered some things to take with you and then rode off with her on the crossbar of the bike. You rode to the pipeline that runs along the Stuart Highway and you stopped there. This was near to BP Palms. You laid out a blanket and the two of you stayed there overnight.Ms T alleged that you raped her on that occasion by making her suck your penis, but the jury found you not guilty of that particular charge and the allegation will be ignored for sentencing purposes.The following morning, being 1 October 2003, the two of you continued on the journey to Darwin on the pushbike. You travelled into St Vincent de Paul in Stuart Park where you had breakfast. At this stage Ms T had bruises all over her face from the beating you gave her. At your insistence she wore, at various stages, a jumper with a hood over it in order to hide the bruising. You had breakfast at St Vincent de Paul, but your victim did not.She did not report you to anyone or seek assistance from anyone because she was, understandably, scared. She had by that stage seen your criminal record, including offences of rape and murder; she had seen the threatening note; she had been raped and she had been savagely assaulted. You instilled into her a vivid sense of fear and an overwhelming sense of hopelessness. Her attempt at escape had resulted in a brutal beating. I do not have any difficulty in accepting that she was too frightened to do anything about her situation other than comply with your wishes. This remained the situation throughout her ordeal.One threat that you made to her included that you would cut her into bits and put her in a bag. She would be placed in a bin where no-one would find her. She said she did as she was told because she did not want to end up being ‘another person on the “missing” page’. Throughout the ordeal you offered glimmers of hope that you would set her free. That prospect also contributed to her ongoing compliance with your wishes.After the breakfast at St Vincent de Paul’s you travelled down to the Botanic Gardens. You went to Mindil Beach and you also went to the museum. Ms T made an allegation that you raped her in bushland in that area but the jury found you not guilty of that count. Again, I will ignore that allegation for the purposes of sentencing.After leaving the bushland you travelled to an area near the Trailer Boat Club where you had a discussion with a social worker who happened to be at the club. He was called to give evidence in the course of the trial. He was, he said, immediately concerned about the condition of Ms T and asked whether she was all right. He described her face as being blue from bruising and said her eyes were closed up with swelling. She was swaying. You told him she had been assaulted by girls and you assured him that you were looking after her and that you would be taking her home. He accepted your assurances.The man allowed Ms T to use his mobile phone and after one unsuccessful attempt she rang and left a message on the answering machine of her ex-boyfriend. You had told her, on a number of occasions, that if she should be asked she should explain her bruising and condition by saying that she had been mobbed at Casuarina. You told her she could make the telephone call if she did not tell anyone what had happened to her, but rather said that she had been mobbed at Casuarina. The message she left on the answering machine was consistent with your instruction to her. The information you gave to the social worker was to like effect. The social worker was convinced by you and did not report the matter.Thereafter you took Ms T to an area near Vesty’s Beach and again you laid out your blanket and made your victim lick your nipples and your scars. She was vomiting at this stage, and you told her that if she did not stop being sick you would have to kill her. You said you would hang or stab her.You stayed at that spot overnight and you were found guilty of one count of rape at that location. This was a penile/vaginal rape. During the course of the night you told her you might sell her as a hooker. She was asking whether she could go home.The following morning, 2 October 2003, you went back to the Botanic Gardens and waited until St Vincent de Paul was open. You then went there for breakfast. Ms T continued to feel sick. Thereafter, the two of you travelled on the pushbike along the bike track back out to BP Palms. You stopped at two locations near BP Palms. At the second spot you laid a blanket down and again insisted that she lick your scars and nipples and suck your penis. You then put baby oil on your private parts and raped her again. The rape of which you were convicted was penile/vaginal penetration.Your victim continued to ask if she could go home. She asked if she could go to BP Palms in order to return to her family. You insisted that you both go to the bus interchange at Palmerston. Prior to your arrival at the bus interchange you again told her that in explanation of her injuries she was to say that she had been mobbed at Casuarina. You threatened that if she said anything of your offending you would come back and kill her. She was extremely frightened of you, and with ample justification.On the journey from Darwin to Palmerston you had stopped at a Mobil service station where some trainee policemen were buying food. Ms T sought the key to the toilets and went to the toilet to be sick. She did not tell the police or anyone else of her predicament. I accept that she was too frightened and overwhelmed to do so. She did not trust anyone.When you were at the bus interchange two of her friends and another girl entered in the waiting room. You seated yourself nearby. The girls were concerned by her condition and asked her what was wrong. She told them that she had been mobbed at Casuarina. They did not find her story convincing. They thought she was about to cry and that she wanted to be somewhere else. She asked them about the next bus and was told that it was about to leave. She then got on the bus, leaving you behind.She went to where she had been living. When she got home her young friend was present, saw the bruising and asked what had happened. In accordance with your instructions Ms T said that she had been mobbed but then immediately broke down and told her friend that she had been raped. It was only after she had left you behind at the bus interchange and she was in the relatively safe environment of her home that she broke down and first discussed what had occurred.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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