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Murrell v The Queen

Murrell v The Queen

Case [2014] VSCA 337 18 December 2014

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2014 0036
S APCR 2014 0057

LLOYD ANTHONY MURRELL	Applicant
v
THE QUEEN	Respondent
S APCR 2014 0058
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
LLOYD ANTHONY MURRELL	Respondent

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JUDGES:	MAXWELL P, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2014
DATE OF JUDGMENT:	18 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 337
JUDGMENT APPEALED FROM:	DPP v Murrell (Unreported, County Court of Victoria, Judge Howard, 18 December 2013); DPP v Murrell (Unreported, County Court of Victoria, Judge Maidment, 13 March 2014).

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CRIMINAL LAW – Appeal – Sentence – Offender appeal – Crown appeal – Offender sentenced for two sets of offences – First sentence: conspiracy to commit armed robbery, aggravated burglary, burglary (3), theft (6), possession of firearms – Total sentence 14y, non-parole period 10y 6m – Prohibited person in possession of firearm – Judge applied incorrect maximum penalty – Crown concession of error – Double punishment – Resentenced on firearms charge – Second sentence: armed robbery, handling stolen goods – Sentence 7y 6m, new non-parole period 12y – Gravity of armed robbery – Victim impact – Prior convictions – Specific deterrence – Second sentence manifestly inadequate – Resentenced – Total effective sentence 17y 6m, new non-parole period 14y.

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APPEARANCES:	Counsel	Solicitors
For the Applicant/Respondent	Mr J P Dickinson QC with Ms N Karapanagiotidis	Leanne Warren & Associates
For the Crown/Applicant	Mr R A Elston QC with Ms A Hassan	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Priest JA. I would make the orders which his Honour proposes, for the reasons which he gives.

REDLICH JA:

I too have had the advantage of reading in draft the reasons for of Priest JA. I would make the orders which his Honour proposes, for the reasons which he gives.

PRIEST JA:

Introduction

On 18 December 2013, Lloyd Anthony Murrell — whom, for convenience, I will describe as the applicant — was sentenced by a judge of the County Court to be imprisoned for 14 years with a non-parole period of 10 years and six months for offences which occurred between 14 October 2011 and 2 November 2011 (‘the first sentence’). I will later set out the individual sentences and orders for cumulation, but the offences to which the first sentence related included conspiracy to commit armed robbery, aggravated burglary, burglary, theft of motor vehicles and firearms offences.

Some three months later, on 13 March 2014, another judge of the County Court sentenced the applicant on charges of armed robbery and handling stolen goods to be imprisoned for seven years and six months. The judge ordered that two years of the sentence be served cumulatively on the first sentence, leading to a total effective sentence of 16 years’ imprisonment, upon which he fixed a new non-parole period of 12 years (‘the second sentence’).

The applicant seeks leave to appeal against both…

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 Murrell v The Queen

Details

AGLC: Murrell v The Queen [2014] VSCA 337
Case: [2014] VSCA 337
Decision Date: 18 December 2014

CaseChat Overview and Summary

In the case of Murrell v The Queen, the offender appealed against his sentence, and the Crown appealed on the basis that the sentence was manifestly inadequate. Murrell had been sentenced for two separate sets of offences. For the first set, which included conspiracy to commit armed robbery, aggravated burglary, multiple instances of burglary and theft, and possession of firearms, Murrell was sentenced to a total of 14 years with a non-parole period of 10 years and 6 months. The court found that the judge had applied the incorrect maximum penalty for the firearms offence, an error conceded by the Crown. Additionally, the offender had been punished twice for the same conduct, necessitating a resentencing for the firearms charge.

The legal issues before the court included whether the judge had applied the correct maximum penalty for the firearms charge and whether the resentencing for the firearms charge should have been aggregated with the sentences for the other offences. The court also needed to determine if the sentence for the second set of offences, which included armed robbery and handling stolen goods, was manifestly inadequate. The offender argued that the sentence did not adequately reflect the gravity of the armed robbery, while the Crown argued that the sentence appropriately considered the offender's prior convictions and the need for specific deterrence.

The court found that the judge had indeed applied the incorrect maximum penalty for the firearms offence, but this did not affect the overall sentence as the Crown conceded the error. The court also held that the resentencing for the firearms charge should not have been aggregated with the sentences for the other offences. Regarding the second set of offences, the court determined that the sentence of 7 years and 6 months, with a new non-parole period of 12 years, was manifestly inadequate. The court considered the gravity of the armed robbery, the impact on the victim, the offender's prior convictions, and the need for specific deterrence. The court ultimately resentenced Murrell, resulting in a total effective sentence of 17 years and 6 months, with a new non-parole period of 14 years.

The final orders of the court were that the original sentence for the first set of offences was upheld, but with a correction to the maximum penalty for the firearms charge. The sentence for the second set of offences was quashed and replaced with a sentence of 7 years and 6 months, with a new non-parole period of 12 years, which was then aggregated with the corrected sentence for the first set of offences, resulting in a total effective sentence of 17 years and 6 months, with a new non-parole period of 14 years.

Orders