R v Benjamin James Murphy - [2018] NSWDC 203

District Court

New South Wales

Medium Neutral Citation: R v Benjamin James Murphy [2018] NSWDC 203
Hearing dates: 30 January 2018, 27 April 2018 and 30 April 2018
Date of orders: 08 June 2018
Decision date: 08 June 2018
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
1 The Offender is convicted.
2 The Offender is sentenced to 7 years imprisonment from 4 May 2016 to 3 May 2023.
3 The Offender is to serve a non-parole period of 4 years and 9 months to date from 4 May 2016 and to expire on 3 February 2021. Thereafter, the Offender is to serve an additional term of 2 years 3 months to date from 4 February 2021 and to expire on 3 May 2023.
4 The Offender’s earliest possible release date is 3 February 2021.

Catchwords:
CRIMINAL LAW – Offence committed whilst subject to conditional liberty – wounding or grievous bodily harm with intent
SENTENCING – Aggravating Factors – Offence was committed while the Offender was on conditional liberty in relation to an offence – offender has a record of previous convictions – remorse not established – commission of offence whilst under influence of illicit substances – plea of Guilty – utilitarian value of plea – 12.5% discount on sentence – medium risk of reoffending – prospects of rehabilitation guarded
Legislation Cited: Crimes Act 1900 (NSW) ss 33(1)(b), 192E(1)(a)
Crimes Act (Sentencing Procedure) Act 1999 (NSW) ss 12, 21A, 22, 28, 44
Cases Cited: R v Chisari [2006] NSWCCA 19
R v Pitt [2005] NSWCCA 304
WW v R [2012] NSWCCA 165
Alkanaan v R [2017] NSWCCA 56
R v Thompson; R v Houlton [2000] 49 NSWLR 383
R v Burkowski [2009] NSWCCA 102
R v Gerald Thomas Martin [2002] NSWSC 577
Category: Sentence
Parties: Regina (Crown)
Murphy (Offender)
Representation:
Counsel:
Ms S Gul (Crown)
Mr B Brassil (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Vanessa Jeavons & Associates Solicitors (Offender)

File Number(s): 2016/0070071
Publication restriction: N/A

REMARKS ON SENTENCE

Benjamin James Murphy appeared for sentence before me on 1 charge, being cause Grievous Bodily Harm with Intent to Cause Grievous Bodily Harm contrary to s 33(1)(b) of the Crimes Act 1900. [1]
1. Hereinafter referred to as the “1900 Act”
On 9 February 2017 the matter was initially listed for trial commencing on 25 September 2017. The trial dates were confirmed on 20 September 2017. On 25 September 2017 however, a plea of Guilty was entered before His Honour Judge Pickering SC. The matter was thereafter adjourned for sentence submissions on 17 November 2017. There were Orders made for preparation of reports.
That date was subsequently vacated and the matter first came before me in Parramatta on 30 January 2017. On the latter occasion, I was informed that a report from Justice Health had not yet been obtained. To facilitate this the matter was adjourned for sentence to 27 April 2018. On 19 April 2018, Dr Gerald Chew Consultant Psychiatrist from Justice Health informed the court that…

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 R v Benjamin James Murphy

Details

AGLC: R v Benjamin James Murphy [2018] NSWDC 203
Case: [2018] NSWDC 203
Decision Date: 08 June 2018

CaseChat Overview and Summary

In the case of R v Benjamin James Murphy, the defendant was convicted of committing an offence of wounding or grievous bodily harm with intent while he was subject to conditional liberty. The case was heard in the relevant Australian court, which was tasked with determining the appropriate sentence for Murphy, considering the various factors involved. The primary legal issues the court had to address included the impact of Murphy's conditional liberty status at the time of the offence, his previous criminal record, the absence of remorse, the influence of illicit substances during the offence, and the mitigating factor of his guilty plea. The court also had to consider the appropriate discount for the guilty plea and assess the risk of reoffending and rehabilitation prospects.

The court's reasoning involved a thorough examination of the aggravating and mitigating factors. It noted that Murphy had a history of previous convictions, indicating a pattern of criminal behaviour. The offence was committed while he was on conditional liberty, which increased the severity of the crime. Additionally, Murphy was under the influence of illicit substances, which further aggravated the situation. The court acknowledged the utility of Murphy's guilty plea, which warranted a 12.5% discount on the sentence. Despite this, the court found that Murphy had not demonstrated sufficient remorse. The risk of reoffending was deemed to be medium, and the prospects of rehabilitation were considered guarded. After weighing all these factors, the court determined that a custodial sentence was necessary to adequately address the offence and to protect the community.

The court sentenced Murphy to 7 years imprisonment, with a non-parole period of 4 years and 9 months. This means Murphy will be eligible for parole on 3 February 2021, provided he meets the necessary conditions. The remainder of his sentence will be served under supervision until 3 May 2023. The court's decision reflects a balanced approach, taking into account both the severity of the offence and the mitigating factors present in this case. The orders made by the court ensure that Murphy is held accountable for his actions while also considering the potential for rehabilitation and the protection of the community.

Orders

Orders of the court

1 The Offender is convicted.

2 The Offender is sentenced to 7 years imprisonment from 4 May 2016 to 3 May 2023.

3 The Offender is to serve a non-parole period of 4 years and 9 months to date from 4 May 2016 and to expire on 3 February 2021. Thereafter, the Offender is to serve an additional term of 2 years 3 months to date from 4 February 2021 and to expire on 3 May 2023.

4 The Offender’s earliest possible release date is 3 February 2021.

Background

Background to the litigation

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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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Medium Neutral Citation:	R v Benjamin James Murphy [2018] NSWDC 203
Hearing dates:	30 January 2018, 27 April 2018 and 30 April 2018
Date of orders:	08 June 2018
Decision date:	08 June 2018
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	1 The Offender is convicted. 2 The Offender is sentenced to 7 years imprisonment from 4 May 2016 to 3 May 2023. 3 The Offender is to serve a non-parole period of 4 years and 9 months to date from 4 May 2016 and to expire on 3 February 2021. Thereafter, the Offender is to serve an additional term of 2 years 3 months to date from 4 February 2021 and to expire on 3 May 2023. 4 The Offender’s earliest possible release date is 3 February 2021.
Catchwords:	CRIMINAL LAW – Offence committed whilst subject to conditional liberty – wounding or grievous bodily harm with intent SENTENCING – Aggravating Factors – Offence was committed while the Offender was on conditional liberty in relation to an offence – offender has a record of previous convictions – remorse not established – commission of offence whilst under influence of illicit substances – plea of Guilty – utilitarian value of plea – 12.5% discount on sentence – medium risk of reoffending – prospects of rehabilitation guarded
Legislation Cited:	Crimes Act 1900 (NSW) ss 33(1)(b), 192E(1)(a) Crimes Act (Sentencing Procedure) Act 1999 (NSW) ss 12, 21A, 22, 28, 44
Cases Cited:	R v Chisari [2006] NSWCCA 19 R v Pitt [2005] NSWCCA 304 WW v R [2012] NSWCCA 165 Alkanaan v R [2017] NSWCCA 56 R v Thompson; R v Houlton [2000] 49 NSWLR 383 R v Burkowski [2009] NSWCCA 102 R v Gerald Thomas Martin [2002] NSWSC 577
Category:	Sentence
Parties:	Regina (Crown) Murphy (Offender)
Representation:	Counsel: Ms S Gul (Crown) Mr B Brassil (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Vanessa Jeavons & Associates Solicitors (Offender)
File Number(s):	2016/0070071
Publication restriction:	N/A