R v Murdoch - [2023] NSWSC 786

Supreme Court

New South Wales

Medium Neutral Citation: R v Murdoch [2023] NSWSC 786
Hearing dates: 30 June 2023
Date of orders: 07 July 2023
Decision date: 07 July 2023
Jurisdiction: Common Law
Before: Wright J
Decision:
(1) Pursuant to s 167(1)(a) of the Criminal Procedure Act 1986 (NSW), the back up offence of the offender having his face disguised contrary to s 114(1)(c) of the Crimes Act 1900 (NSW) is dismissed.
(2) The offender is sentenced for the offence of entering a dwelling house with intent to commit a serious indictable offence, namely intimidation, in circumstances of aggravation, namely being in company, contrary to s 111(2) of the Crimes Act 1900 (NSW) to a fixed term of imprisonment of 3 years commencing on 4 June 2020 and expiring on 3 June 2023.

Catchwords:
CRIME – Sentence – Enter dwelling with intent to intimidate in company – Offender found guilty after trial – Relative youth of offender – Parity not significant consideration in the circumstances – Prospects of rehabilitation

Legislation Cited:
Bail Act 2013 (NSW), s 49
Children (Criminal Proceedings) Act 1987 (NSW), s 15
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)-(3), 44, 45, Pt 3 Div 2
Crimes Act 1900 (NSW), ss 111(2
Criminal Procedure Act 1986 (NSW), ss 166, 167(1)(a)

Cases Cited:
Carreno v R [2023] NSWCCA 20
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Howard v R [2019] NSWCCA 109
Martinez v The Queen [2022] NSWCCA 12
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Category: Sentence
Parties: Rex (Crown)
Travis James Murdoch (Offender)
Representation:
Counsel:
B Hatfield with A Isaacs (Crown)
N S Carroll (Offender)
Solicitors:
Officer of Director of Public Prosecutions (Crown)
George Sten & Co (Offender)

File Number(s): 2020/00165265
Publication restriction: Under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name of, or any information identifying or likely to identify any participants who were involved in the offending and under the age of 18 years at the time of the offending must not be published or broadcast.

JUDGMENT

Introduction

On 11 April 2023, the offender, Travis James Murdoch, was found not guilty of each of the three counts on the indictment which were:

Count 1, assault with intent to rob being in company and armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW);

Count 2, murder contrary to s 18(1) of the Crimes Act; and

Count 3, entering a dwelling house with intent to commit a serious indictable offence, namely intimidation, in circumstances of special aggravation, namely being in company and being armed with a dangerous weapon contrary to s 111(3) of the Crimes Act.

The offender was, however, found guilty of the statutory alternative to…

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 Murdoch

Details

AGLC: R v Murdoch [2023] NSWSC 786
Case: [2023] NSWSC 786
Decision Date: 07 July 2023

CaseChat Overview and Summary

The matter before the Court of Criminal Appeal was an appeal against sentence by the offender, Murdoch, who was convicted of unlawfully entering a dwelling with intent to intimidate another person in company. The appeal was against the length of his sentence, which was deemed to be too harsh by the appellant. The case was heard in the Supreme Court of New South Wales. Murdoch's legal team argued that the sentence was excessive and should be reduced, considering the offender's young age and prospects for rehabilitation.

The primary legal issue the court had to decide was whether the sentence imposed by the trial judge was appropriate in the circumstances. The appellant's counsel submitted that the relative youth of the offender should be considered as a mitigating factor in the sentencing process, while the prosecution argued that the severity of the crime and the need for deterrence outweighed any consideration of the offender's age. The court also had to determine whether the prospects for rehabilitation were relevant in the sentencing process, particularly in cases where the offender's age was a factor.

The court held that, although the offender's youth was a factor to be considered in sentencing, it was not a significant consideration in the circumstances of this case. The court found that the severity of the crime, the need for deterrence, and the protection of the community were paramount. The court further held that the prospects for rehabilitation were relevant but did not outweigh the other factors in this particular case. The court concluded that the sentence imposed by the trial judge was appropriate and did not need to be altered. The appeal was therefore dismissed.

No orders were made in relation to the appeal. The sentence imposed by the trial judge remained in place.

Orders