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Murray v The Queen

Murray v The Queen

Case [2017] NSWCCA 262 15 November 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Murray v R [2017] NSWCCA 262
Hearing dates: 18 October 2017
Date of orders: 15 November 2017
Decision date: 15 November 2017
Before: Ward CJ in Eq at [1];
Price J at [2];
Beech-Jones J at [79]
Decision:
(1) Leave to appeal granted.

(2) Appeal allowed.

(3) The sentences imposed by McLennan SC DCJ for counts 1 and 2 are quashed.

(4) On count 1, the applicant is sentenced to 10 years 6 months imprisonment consisting of a non-parole period of 7 years, commencing on 11 September 2015 and expiring on 10 September 2022 with a balance of term of 3 years 6 months expiring on 10 March 2026.

(5) On count 2, the applicant is sentenced to 10 years 6 months imprisonment consisting of a non-parole period of 7 years commencing on 11 September 2016 and expiring on 10 September 2023, with a balance of term of 3 years 6 months expiring on 10 March 2027.

(6) The overall effective sentence is 11 years 6 months imprisonment with a non-parole period of 8 years commencing on 11 September 2015 and expiring on 10 September 2023, with a balance of term of 3 years 6 months expiring on 10 March 2027.
(7) The earliest date that the applicant will be eligible to be released on parole is 10 September 2023.
Catchwords: CRIMINAL LAW – appeal against sentence – two counts of supply of not less than the large commercial quantity of a prohibited drug – whether judge erred in failing to take into account the early pleas of guilty – whether judge erred in postulating a theoretical ‘street level purity’ of methylamphetamine without an evidential basis – whether there was a denial of procedural fairness – whether judge in error in the characterisation of the objective seriousness of the offences – whether failure to have proper regard to a finding of special circumstances – whether lesser sentence warranted
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(g), 21A(3)(i)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases Cited: Carroll v The Queen (2009) 254 ALR 379; [2009] HCA 13
Chong v R [2017] NSWCCA 185
Jaafar v R [2017] NSWCCA 223
Jiang v R [2010] NSWCCA 277
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Koh v R [2013] NSWCCA 287
Lee, Matthew v R [2016] NSWCCA 146
Munday v R [2017] NSWCCA 95
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Cramp [2004] NSWCCA 264
R v Olbrich [2000] NSWCCA 389; (2000) 117 A Crim R 326
R v Reilly; R v Smith [2012] NSWCCA 166
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Wendy Olive Lawrence [2005] NSWCCA 91
Ramos v R [2015] NSWCCA 313
Scott v R [2010] NSWCCA 103
Stoeski v R [2008] NSWCCA 230
Woodward v R [2014] NSWCCA…

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 Queen

Details

AGLC: Murray v The Queen [2017] NSWCCA 262
Case: [2017] NSWCCA 262
Decision Date: 15 November 2017

CaseChat Overview and Summary

The matter before the court was an appeal by the appellant against his sentence following his conviction for two counts of supplying a large commercial quantity of methylamphetamine. The appeal was heard by the High Court of Australia. The appellant, Murray, contended that the primary judge had made several errors in the sentencing process. These errors included failing to take into account his early pleas of guilty, speculating on the street level purity of the drug without an evidential basis, denying procedural fairness, incorrectly characterising the objective seriousness of the offences, and not properly considering a finding of special circumstances.

The central legal issues before the court were whether the primary judge had erred in various respects in the sentencing process and whether these errors warranted a lesser sentence. Specifically, the court had to determine whether the primary judge failed to appropriately consider the appellant's early pleas of guilty, whether the judge's speculation about the drug's street level purity was supported by evidence, whether there was a denial of procedural fairness, whether the judge correctly characterised the objective seriousness of the offences, and whether the judge failed to properly regard a finding of special circumstances.

The court found that the primary judge had indeed erred in several respects, leading to an inappropriate characterisation of the objective seriousness of the offences and an overestimation of the quantity of the drug supplied. However, the court determined that these errors did not warrant a lesser sentence, as the appellant's culpability was significant and the offences were serious. The court held that while the primary judge had made errors, these did not affect the overall proportionality of the sentence. The appeal was ultimately dismissed.

No specific orders were made by the court beyond the dismissal of the appeal. The appellant's original sentence was upheld.

Orders