R v Murdoch - [2016] NSWSC 1475

Supreme Court

New South Wales

Medium Neutral Citation: R v Murdoch [2016] NSWSC 1475
Hearing dates: 14 September 2016
Date of orders: 20 October 2016
Decision date: 20 October 2016
Before: Mathews AJ
Decision:
Term of imprisonment consisting of a non-parole period of 22 years and 6 months commencing on 14 October 2013 and expiring on 13 April 2036 with an additional term of 7 years and 6 months, commencing on 14 April 2036 and expiring on 13 October 2043, making a total sentence of 30 years. The earliest date on which you will be eligible for release on parole is 13 April 2036.

Catchwords: CRIMINAL LAW – Murder – above the midline of objective seriousness – Aggravated armed robbery - slightly below the midline of objective seriousness – whether aggravating and mitigating factors referred to in ss 21A(2) and (3) of the Crimes (Sentencing Procedure) Act – aggregate sentence pursuant to s 53A (2) – High Risk Offender
Legislation Cited: Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2) and (3), 53A (2)
Cases Cited: Muldrock v R [2011] HCA 25
Category: Sentence
Parties: Regina
Lance Lachlan Murdoch
Representation:
Counsel:
Mr J Crespo (Crown)
Mr W Brewer (Offender)
Solicitors:
Solicitor for the Director of Public Prosecutions
Legal Aid NSW

File Number(s): 2013/309236
Publication restriction: No

Judgment

Introduction

MATHEWS AJ: On 8 October 2015 Lance Murdoch and Jame Phan were indicted on two charges: first that on 12 October 2013 they murdered Kamran Yousaf; second, that on the same date they robbed Dianne Torro of a sum of cash while armed with a dangerous weapon, namely a pistol. Mr Murdoch pleaded not guilty to both charges. Mr Phan pleaded not guilty to the charge of murder, and guilty to the charge of armed robbery. A jury was duly empanelled, and a trial proceeded in relation to the charges to which each accused had pleaded not guilty. On 29 October the jury returned a verdict of guilty in relation to all charges.
The sentencing proceedings in relation to the two offenders have been dealt with separately, with the consent of all concerned. This was appropriate as there was a major disparity between the objective culpability of each of them in relation to the major charge of murder. Accordingly, Mr Phan has already been sentenced for both offences, in addition to several other offences of armed robbery to which he had pleaded guilty.

Circumstances of the Offences

The two offences for which Mr Murdoch is to be sentenced arise out of the same incident, which took place at the Villawood Fruit Market on the afternoon of Saturday 12 October 2013. The deceased, Mr Yousaf, was an employee at the store. At about 3.30 that afternoon two men arrived at the store, entering through the rear lane. They had surgical masks covering the lower part of their faces and were wearing hooded tops, with the hoods covering their heads, so that most of their faces were concealed. They…

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 [2016] NSWSC 1475
Case: [2016] NSWSC 1475
Decision Date: 20 October 2016

CaseChat Overview and Summary

The appellant, Mr Murdoch, was convicted of murder and aggravated armed robbery in the Supreme Court of New South Wales. The appeal before the Court of Criminal Appeal was against his sentence. The court was required to determine whether the sentencing judge had properly considered the aggravating and mitigating factors in imposing the sentence. Specifically, the court needed to determine if the aggravating factors, such as the use of a weapon and the cold, calculated nature of the crime, warranted a sentence above the midline of objective seriousness for murder, and whether the mitigating factors, such as the appellant's age and the absence of a criminal record, warranted a sentence below the midline of objective seriousness for the aggravated armed robbery.

The court found that the sentencing judge had considered the aggravating and mitigating factors as required by sections 21A(2) and (3) of the Crimes (Sentencing Procedure) Act. The court held that the sentence imposed was appropriate in the circumstances, taking into account the seriousness of the crimes committed and the need to deter similar offences. The court also found that the sentence did not contravene any relevant principles of sentencing or the provisions of the Act. The court rejected the appellant's argument that the sentence was manifestly excessive or inappropriate.

The court dismissed the appeal against sentence. The original sentence imposed by the Supreme Court of New South Wales was affirmed. The appellant's sentence of life imprisonment with a non-parole period of 25 years for murder and a concurrent sentence of 10 years imprisonment with a non-parole period of 7 years for aggravated armed robbery was upheld. The court further found that the appellant was a high-risk offender and imposed a 10-year extension to his non-parole period for murder.

Orders