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R v Murchie

R v Murchie

Case [1999] NSWCCA 424 27 October 1999

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Reported Decision:
108 A Crim R 482

New South Wales

Court of Criminal Appeal

CITATION: REGINA v MURCHIE [1999] NSWCCA 424

FILE NUMBER(S): CCA 60392/98

HEARING DATE(S): 27 October 1999

JUDGMENT DATE:
27 October 1999

PARTIES :

REGINA v Richard MURCHIE

JUDGMENT OF: Simpson J at 1; Smart AJ at 41

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0693

LOWER COURT JUDICIAL OFFICER: Kinchington DCJ

COUNSEL: R D Ellis - Crown
J I Doris - Applicant

SOLICITORS: S E O'Connor - Crown
Neil J O'Connor & Associates - Applicant

CATCHWORDS:

ACTS CITED: Crimes Act 1900
Criminal Procedure Act 1986
Sentencing Act 1989

CASES CITED:
R v De Simoni 147 CLR 147 CLR 383
R v Henry and Ors unreported NSWCCA 107
R v Jurisic 1998 45 NSWLR 209
R v Letteri unreported NSWCCA 18 March 1992
R v Engert (1995) 84 A Crim R 67
R Fahda NSWCCA 267

DECISION: see page 10 - 11

IN THE COURT OF
CRIMINAL APPEAL

60392/98

SIMPSON J
SMART AJ

17 October 1999

REGINA v Richard MURCHIE

JUDGMENT

SIMPSON J :

1 The applicant seeks leave to appeal sentences imposed upon him by Kinchington DCJ in the District Court on 29 May 1998 following his pleas of guilty to three charges. The first was a charge of robbery in company, brought under s 97A of the Crimes Act 1900 and carries a maximum penalty of penal servitude for twenty years. That offence was committed on 26 June 1997.
2 The second offence was of assault and was committed on 11 July 1997. S 61 of the Crimes Act under which that charge was brought carries a maximum penalty of imprisonment for two years.
3 The third charge was of malicious damages and was committed also on 11 July 1997. S 195 of the Crimes Act provides a maximum penalty of penal servitude for ten years.
4 His Honour was also asked to take into account a single count under s 21 of the Criminal Procedure Act, 1986 that being a count of possession of a prohibited article.
5 On the first and most serious count and taking into account the matter on the Form 1, Kinchington DCJ sentenced the applicant to a total term of penal servitude for six years. He found that there were special circumstances justifying departure from the statutory ratio provided in s 5 of the Sentencing Act 1989 and divided the sentence into a minimum term of three years and an additional term of three years. He specified that the sentence was to commence on 11 July 1997, the date on which the applicant was arrested in relation to all matters. On the remaining two counts, his Honour sentenced the applicant to terms of twelve months' penal servitude or imprisonment to commence on the same date and therefore to be served concurrently.
6 The offence of robbery in company was committed during the day on 26 June 1997. In company with three other young men, the applicant…

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 Murchie

Details

AGLC: R v Murchie [1999] NSWCCA 424
Case: [1999] NSWCCA 424
Decision Date: 27 October 1999

CaseChat Overview and Summary

In the case of Regina v Murchie, the applicant sought leave to appeal against the sentences imposed by Kinchington DCJ in the District Court following his guilty pleas to three charges: robbery in company, assault, and malicious damage. The applicant also faced a count of possession of a prohibited article. The District Court sentenced the applicant to six years of penal servitude for the robbery charge, with a minimum term of three years and an additional term of three years, and concurrent sentences of twelve months for the other two charges. The applicant argued that the sentence was excessive, particularly in light of his diagnosed attention deficit hyperactivity disorder (ADHD) and the subjective circumstances of the case.

The legal issues before the Court of Criminal Appeal were whether the sentence imposed was outside the range properly available to the sentencing judge and whether the judge failed to give proper weight to the diagnosis of ADHD and its significance to the applicant's offending behaviour. The Court considered whether the sentence was consistent with the guideline sentence promulgated by the Court in relation to armed robbery, which the Court deemed applicable to the offence of robbery in company. The Court also examined whether the sentencing judge adequately balanced the principles of general deterrence and rehabilitation against the applicant's diagnosed condition.

The Court of Criminal Appeal found that the sentence was at the upper end of the appropriate range and that the sentencing judge had not sufficiently considered the impact of the applicant's ADHD on his culpability and potential for rehabilitation. The Court held that the failure to adequately weigh the diagnosis of ADHD and its implications constituted an error that rendered the sentence manifestly excessive. The Court granted leave to appeal, quashed the sentence for the robbery charge, and imposed a new sentence of five years, divided into a minimum term of two years and three months and an additional term of two years and nine months.

The Court did not interfere with the sentences for the other charges, finding that they were appropriate. The Court recommended that the parole authorities and Correctional Services authorities consider the applicant's eligibility for parole and involvement in programs preparatory to release.

Orders