R v Dean; R v Murphy; R v Jaffe - [2017] QCA 276

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dean; R v Murphy; R v Jaffe [2017] QCA 276

PARTIES:

In CA No 253 of 2016
R
v
DEAN, William Francis
(applicant)

In CA No 255 of 2016
R
v
MURPHY, Scott Stuart
(applicant)

In CA No 269 of 2016
R
v
JAFFE, Stephen Daniel
(applicant)

FILE NO/S:

CA No 253 of 2016
CA No 255 of 2016
CA No 269 of 2016
DC No 490 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

District Court at Southport – Date of Sentences: 16 September 2016 (Clare SC DCJ)

DELIVERED ON:

13 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2017

JUDGES:

Fraser and Philippides JJA and Flanagan J

ORDERS:

In CA No 253 of 2016

The application is granted to the extent that the sentence on the count of extortion is set aside and in lieu thereof a sentence of five years is imposed and the parole eligibility date of 12 November 2018 is varied to 12 November 2017.

In CA No 255 of 2016

The application for leave to appeal against sentence is refused.

In CA No 269 of 2016

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicants, Dean and Murphy, were sentenced following pleas of guilty to six years’ imprisonment for extortion, five years’ imprisonment for robbery in company, three years’ imprisonment for each of two counts of deprivation of liberty and one count of assault occasioning bodily harm in company and two years’ imprisonment for assault occasioning bodily harm – where the applicant, Jaffe, was sentenced following pleas of guilty to four years’ imprisonment for robbery in company and two years’ imprisonment for each of two counts of deprivation of liberty, one count of assault occasioning bodily harm in company and one count of assault occasioning bodily harm – where the complainant owed Murphy money and the offences were about recovery and retribution – where the applicant was taken to a remote location, tied up and made to walk through bush before being held in a large pipe for a protracted period – where a ratchet strap was tightened around the complainant’s mouth – where the complainant was punched by the applicants – where the offences were for Murphy’s benefit – where Murphy was a middle-aged man with a criminal record involving low level offending and had committed offences while on bail – where Dean procured others to commit offences and had taken amphetamine prior to his offending – where Dean was 37 years old with no criminal history – where Jaffe was 29 years old, suffered from mental illness and had a criminal record restricted to breaching reporting orders – whether the sentences were manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS –…

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.

Keep reading for free

Create a free CaseChat account to read R v Dean; R v Murphy; R v Jaffe and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] QCA 276
Decision Date: 13 November 2017

CaseChat Overview and Summary

In the case of R v Dean; R v Murphy; R v Jaffe, the applicants, Dean and Murphy, appealed against their sentences while Jaffe sought leave to appeal. Dean and Murphy were sentenced to imprisonment following pleas of guilty to multiple charges, including extortion, robbery, deprivation of liberty, and assault. Jaffe was also sentenced following pleas of guilty to robbery, deprivation of liberty, and assault. The applicants argued that their sentences were manifestly excessive or inadequate and failed to achieve the necessary differential treatment of their criminality. The court was required to determine whether the sentences were manifestly excessive or inadequate and whether the sentences appropriately differentiated between the applicants’ levels of criminality.

The court examined the circumstances of each applicant’s offending and considered the sentencing principles of deterrence, denunciation, and parity. The court found that the sentences imposed on Dean and Murphy were appropriate, taking into account the severity of the offences and the need for deterrence. The court also determined that the sentencing judge appropriately considered mitigating factors in Murphy’s case, such as his early guilty plea and the imposition of onerous bail conditions. Regarding Jaffe, the court found that the sentence imposed was appropriate, considering his lesser involvement in the offences and the significant mitigating features of the co-accused, Sensoy. The court held that the sentences did not fail to achieve the necessary differential treatment of the applicants’ criminality.

The court granted the application in part for Dean, setting aside the sentence on the count of extortion and imposing a sentence of five years with a varied parole eligibility date. The court refused the applications for leave to appeal against sentence for Murphy and Jaffe. The court found that the sentences imposed were appropriate and did not fail to achieve the necessary differential treatment of the applicants’ criminality. The court also held that there was no error in the calculation of the declared presentence custody for Murphy.

Orders

Orders of the court

In CA No 253 of 2016

The application is granted to the extent that the sentence on the count of extortion is set aside and in lieu thereof a sentence of five years is imposed and the parole eligibility date of 12 November 2018 is varied to 12 November 2017.

In CA No 255 of 2016

The application for leave to appeal against sentence is refused.

In CA No 269 of 2016

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Furthermore, the respondent submitted that the sentencing did recognise mitigating features in favour of Murphy, in a meaningful way. A parole eligibility date was set in advance of the half way point of the sentence, at 29 months not 36 months. It cannot be doubted that the sentencing judge was cognisant of the circumstances and timing of the entered plea and it was not submitted that this evidenced remorse. Further, although the described onerous conditions of bail had been breached on a number of occasions, as the respondent submitted, weight was given to the factor of their imposition. Murphy’s further offending did not support any significant claim to being of otherwise good character. Although Murphy’s counsel suggested that imprisonment had caused financial disruption through financial mismanagement, it was not suggested that any particular financial hardship would be occasioned to his family as a consequence of incarceration. That factor did not claim much weight as a mitigating factor. Moreover, I accept the respondent’s submission that there was an advanced date set for parole eligibility which indicated that the sentencing judge did give appropriate weight to relevant mitigating factors, in circumstances where the sentencing judge was also properly focused on deterrence.Declaration Counsel for Murphy contended that there was error in the calculation of the declared presentence custody but that appears to have been in Murphy’s favour and the matter was not pressed.The application by JaffeParity It was submitted on behalf of Jaffe that the conclusion that Jaffe’s conduct was merely on “a rung below” the more serious criminality of Dean and Murphy, and commensurate with that of Sensoy, failed to properly achieve the necessary “differential treatment of person according to differences between them relevant to the scope, purpose and subject matter of the law.” Counsel submitted that it was uncontroversial that Jaffe’s criminality was the most marginal of the four men as to counts 1 and 2, Jaffe procured Davies to telephone the complainant, and then drove her and the principal offenders to the service station, where he remained for a time. Jaffe did not have any contact with the complainant on arrival, nor was there any allegation that he enabled, encourage or assisted his co-offenders in their dealings with the complainant beyond mere presence. As to the remaining counts, he was not present for the violence perpetrated on the complainant. Nevertheless, Jaffe did return to the tunnel and was involved in punching the complainant and did not intervene when Dean tightened the strap around his mouth. He also stood in the way to prevent any prospect of the complainant escaping. I cannot accept that the relevant head sentences imposed on Jaffe and Sensoy gave rise to any justifiable sense of grievance on Jaffe’s part. Jaffe and Sensoy both received four year sentences for the robbery charge. It was appropriate that the significant mitigating features of Sensoy’s youth and much earlier pleas of guilty, reflected in the immediate suspension of the term, were reflected in the sentences imposed on Sensoy.

CITATION:	R v Dean; R v Murphy; R v Jaffe [2017] QCA 276
PARTIES:	In CA No 253 of 2016 R v DEAN, William Francis (applicant) In CA No 255 of 2016 R v MURPHY, Scott Stuart (applicant) In CA No 269 of 2016 R v JAFFE, Stephen Daniel (applicant)
FILE NO/S:	CA No 253 of 2016 CA No 255 of 2016 CA No 269 of 2016 DC No 490 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	District Court at Southport – Date of Sentences: 16 September 2016 (Clare SC DCJ)
DELIVERED ON:	13 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2017
JUDGES:	Fraser and Philippides JJA and Flanagan J
ORDERS:	In CA No 253 of 2016 The application is granted to the extent that the sentence on the count of extortion is set aside and in lieu thereof a sentence of five years is imposed and the parole eligibility date of 12 November 2018 is varied to 12 November 2017. In CA No 255 of 2016 The application for leave to appeal against sentence is refused. In CA No 269 of 2016 The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicants, Dean and Murphy, were sentenced following pleas of guilty to six years’ imprisonment for extortion, five years’ imprisonment for robbery in company, three years’ imprisonment for each of two counts of deprivation of liberty and one count of assault occasioning bodily harm in company and two years’ imprisonment for assault occasioning bodily harm – where the applicant, Jaffe, was sentenced following pleas of guilty to four years’ imprisonment for robbery in company and two years’ imprisonment for each of two counts of deprivation of liberty, one count of assault occasioning bodily harm in company and one count of assault occasioning bodily harm – where the complainant owed Murphy money and the offences were about recovery and retribution – where the applicant was taken to a remote location, tied up and made to walk through bush before being held in a large pipe for a protracted period – where a ratchet strap was tightened around the complainant’s mouth – where the complainant was punched by the applicants – where the offences were for Murphy’s benefit – where Murphy was a middle-aged man with a criminal record involving low level offending and had committed offences while on bail – where Dean procured others to commit offences and had taken amphetamine prior to his offending – where Dean was 37 years old with no criminal history – where Jaffe was 29 years old, suffered from mental illness and had a criminal record restricted to breaching reporting orders – whether the sentences were manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS –…