R v Murdoch
[2025] QCA 30
•18 March 2025
SUPREME COURT OF QUEENSLAND
CITATION:
R v Murdoch [2025] QCA 30
PARTIES:
R
v
MURDOCH, Liza
(applicant)FILE NO:
CA No 186 of 2024
DC No 1650 of 2024DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 22 August 2024 (Moynihan KC DCJ)
DELIVERED ON:
18 March 2025
DELIVERED AT:
Brisbane
HEARING DATE:
3 March 2025
JUDGES:
Mullins P, Brown JA and Crow J
ORDERS:
1. Grant leave to appeal.
2. Allow the appeal.
3. Set aside the sentences imposed by the sentencing judge on 22 August 2024, including the presentence custody declaration.
4. Order that the applicant be released under the supervision of an authorised Corrective Services officer for a period of six months and that she must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld) and report within two business days on her release from custody to an authorised Corrective Services officer at Brisbane.
5. No convictions recorded for counts 1 and 2.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to unlawful use of a motor vehicle to facilitate the commission of an indictable offence, in the night, in company (count 1) and armed robbery, in company (count 2) – where the applicant had turned 18 years old one month prior to the offence, had no previous criminal history, and came from a disadvantaged and dysfunctional background – where the applicant served 334 days in presentence custody – where the applicant was sentenced to nine months imprisonment for count 1 and 15 months imprisonment for count 2 – where the length of time spent in presentence custody made it open to the sentencing judge to impose a sentence of probation which would not require a conviction to be recorded – where it can be inferred from the age of the applicant that the recording of convictions would impact on employment opportunities – whether the sentence was manifestly excessive due to the sentencing judge’s choice of sentencing structure
R v Cay, Gersch and Schell; ex parte Attorney-General (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, cited
COUNSEL:
A M Hoare KC for the applicant (pro bono)
S J Muir for the respondentSOLICITORS:
Kilroy & Callaghan Lawyers for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent
THE COURT: On 22 August 2024 the applicant pleaded guilty to unlawfully using a motor vehicle to facilitate the commission of an indictable offence, in the night, in company (count 1) and armed robbery, in company (count 2). The offences were committed on 19 September 2023 when the applicant was 18 years old, her birthday having occurred less than one month prior to the offending. The applicant was sentenced to imprisonment for nine months for count 1 and for 15 months for count 2. A presentence custody declaration was made in respect of the period of 334 days (about 11 months) spent in presentence custody between 23 September 2023 and 21 August 2024 as imprisonment already served under the sentences. The date the applicant was ordered to be released on parole was fixed at 22 August 2024. The applicant applies for leave to appeal on the ground the sentence was manifestly excessive and, in particular, by imposing imprisonment that mandated the recording of convictions rather than structuring the sentences, so that it was open not to record convictions having regard to the applicant’s youth, lack of prior criminal history and the impact recording a conviction would have on the applicant’s chances of finding employment.
The circumstances of the offences
The owner of the Range Rover motor vehicle had left it parked in the garage of his home on 16 September 2023. The keys were taken from the kitchen and the motor vehicle was missing the next day. There was no allegation that the applicant was involved in the stealing of the vehicle. It is the background to the applicant’s offences. The use of that stolen vehicle was the subject of count 1. It was used in the armed robbery that was subject of count 2. The applicant was in company with a 15 year old youth and an unknown co-accused for both offences. The applicant and the two co-accused walked into a bottle shop. The youth and the applicant picked up several bottles of alcohol and placed them inside a Woolworths bag. The shop assistant stopped the applicant as she walked towards the front door and grabbed the Woolworths bag. The applicant who was holding a bottle of alcohol attempted to strike the complainant over the head. The youth approached the complainant and said “Just let it happen” whilst attempting to pull the bag from the complainant’s grip, causing the bag to tear. The applicant threw the bottle of alcohol directly at the complainant and the group ran from the store with some alcohol. They returned to the stolen car and drove away. On 23 September 2023 police attended the address for the youth and located both the youth and the applicant. The applicant was arrested and charged and declined to participate in an interview. She was remanded in custody.
The applicant’s antecedents
The applicant had no prior criminal history. Her mother died when she was five years old. She was removed from her father’s care when she was 13 years old. She lived in four different foster homes before being placed with extended family. She was mostly homeless for the three years prior to her arrest. She had developed a close relationship with her uncle (who was her mother’s brother) who died several days before the offences. Prior to her arrest, she had been drinking alcohol to excess daily. She was educated to grade 9. She had not previously been employed, but after gaining experience in the correctional centre kitchen, she had plans to work in hospitality.
Sentencing remarks
The learned sentencing judge noted the applicant pleaded guilty “at a very early time” to “this extremely serious offending”. After summarising the facts of the offending, the sentencing judge noted that the youth would be dealt with under a different statutory regime, so that disparate sentences were warranted. The sentencing judge inferred the victim had suffered harm and been adversely affected as a result of the applicant’s offending. The sentencing judge noted that the guilty pleas facilitated the administration of justice and that the applicant had thereby expressed remorse and cooperated with the authorities. The following matters set out in the applicant’s counsel’s submissions were taken into account:
“You have endured a dysfunctional and disadvantaged childhood, and you have experienced trauma, domestic violence, and homelessness. You have lost those close to you in the past, including recently. You have abused alcohol in the past, and that has contributed to your anti-social behaviour. You were educated to only year 9 level and you have no work experience, but you have worked in the jail kitchen and you aspire to work in the hospitality industry in the future.
You will be supported on your release from custody by your aunt.”
The sentencing judge observed that the applicant was still of an age that deserves special leniency in the hope that it would promote rehabilitation. The sentencing judge referred to the purposes of sentencing and the Court of Appeal authorities relied on by counsel. The sentencing judge noted the respective submissions of the prosecutor and the applicant’s counsel in relation to the appropriate sentences which was for the prosecution a head sentence of imprisonment two and one-half years’ imprisonment with an immediate parole release date and taking into account the presentence custody and for the applicant a period of probation and not recording a conviction. The sentencing judge then imposed the sentences as the outcome of “[b]alancing the relevant considerations and taking into account the entire criminality and the time … spent in presentence custody”.
The applicant’s submissions
The submissions made on behalf of the applicant in this Court were as follows. The period of almost 11 months spent by the applicant in custody before being sentenced was a severe punishment for the offending for which she was being sentenced when taking into account her antecedents and the nature of her offending. This component of the applicant’s punishment exceeded what was necessary to meet the sentencing principles of punishment, denunciation and deterrence. It had been accepted on the applicant’s behalf before the sentencing judge that formal supervision upon the applicant’s release was appropriate to support her rehabilitation. That could have been achieved by either parole or probation. It was only parole that carried with it the automatic recording of a conviction, whereas imposition of a probation order would enliven the discretion not to record a conviction. It was therefore the imposition of a sentence of imprisonment that meant that the release of the applicant was on parole and carried with it the recording of convictions that made the sentence manifestly excessive. Even though the sentencing judge expressly referred to balancing all the relevant considerations, the outcome of that exercise suggested that insufficient regard was given to the following factors:
(a)the applicant was barely 18 years old when she committed her offences and had spent almost all the year after she turned 18 in custody;
(b)she had no prior criminal history;
(c)she had, in custody, gained skills and an interest in joining the workforce for the first time and benefitted from the extended period of sobriety;
(d)there was no sophistication to the offences;
(e)the applicant’s use of a bottle to attempt to strike and then throw at the store attendant was impulsive and not premeditated; and
(f)even though it is accepted that the store attendant must have been adversely affected by the offending, there was no suggestion of any physical injury.
The applicant relies on R v Cay, Gersch and Schell; ex parte Attorney-General (Qld) (2005) 158 A Crim R 488 at [65] per Mackenzie J for the proposition that it was not necessarily beyond the proper exercise of the sentencing discretion to impose a non-custodial sentence for an offence of armed robbery in company in the case of youthful offenders and it was therefore also not beyond the limits of the proper exercise of the sentencing discretion to order that a conviction not be recorded in an appropriate case. The applicant also relies on the authorities that emphasise the significance of youth as a powerful mitigating factor, including R v McLean [2021] QCA 70 at [14] per Sofronoff P (with whom McMurdo and Mullins JJA agreed).
By the time this sentence leave application was heard in this Court, the applicant had served her sentence as she had been on parole for sufficient time for the sentence to have expired, taking into account the 11 months of presentence custody. On that basis, if the appeal succeeds, it is suggested on behalf of the applicant that the sentences should be set aside and a short period of probation should be imposed for counts 1 and 2 with no convictions being recorded.
The respondent’s submissions
The respondent’s submissions are directed at analysing the facts and circumstances of each of the comparable authorities relied on by the applicant to show that the sentences that were imposed by the sentencing judge were not manifestly excessive. The respondent relies on s 9(2A) of the Penalties and Sentences Act 1992 (Qld) (the Act) that meant imprisonment was not a sentence of last resort for count 2 and the seriousness of the applicant’s offending was reflected in the maximum penalty of life imprisonment for the offence of armed robbery, in company.
Was the sentence manifestly excessive?
This is an unusual sentence leave application. The issue of whether the sentence was excessive is not determined by reference to yardstick authorities (about which there is no real dispute) but by the choice of sentencing structure of the sentencing judge that precluded the possibility of not recording convictions in circumstances where Ms Soldi of counsel who appeared for the applicant before the sentencing judge expressly submitted that a probation order would enliven the court’s jurisdiction as to whether to record a conviction and, taking into account the applicant’s youth and good record, her plans for the future, and the very considerable punishment to which she had already been subjected, “no conviction should be recorded so as to avoid ‘potential oppression that may stand in the way of rehabilitation’”. See Cay at [47].
For the offences for which the applicant was ultimately prosecuted, being held on remand for 11 months before being sentenced meant that the applicant had served more than any custodial component appropriate for sentencing an 18 year old first time offender with no prior criminal history for the type of armed robbery that she committed. The offending had started out as a stealing of alcohol from the bottle shop that became armed robbery when the applicant used a bottle of alcohol in attempting to strike the complainant and threw the bottle of alcohol at the complainant. The fact that the applicant had served a lengthy period in presentence custody did not make it inevitable that she should be sentenced to imprisonment for the offences to which she pleaded guilty. In fact, what it did was open up for the sentencing judge some flexibility in sentencing a youthful offender for whom (and for the community) rehabilitation remains an important principle of sentencing, in conjunction with the principles of sentencing of deterrence, denunciation of the offending and protection of the community. The last three mentioned sentencing principles had already been largely achieved by the presentence custody of 11 months.
Particularly in the case of a youthful offender, it is much easier to infer for the purpose of s 12(2)(c) of the Act that their chances of finding employment will be adversely affected by the recording of a conviction: see Cay at [75].
Armed robbery of a shop assistant is serious offending, particularly because of the vulnerability of shop assistants to such offending. In view of the matters set out in the previous paragraphs, however, it was unreasonable or plainly unjust for the sentencing judge to choose imprisonment as the appropriate sentencing structure.
Even though the sentences imposed by the sentencing judge have been served, if those sentences are set aside and a short period of probation is imposed, then the applicant can be given the benefit of no convictions being recorded which should assist with her rehabilitation which also has consequences for the future protection of the community.
It should be apparent from these reasons that it would be misleading for this decision to be viewed as imposing a short period of probation with no convictions recorded for an unlawful use of a motor vehicle and an armed robbery for an 18 year old offender. That sentence was only able to be imposed after the applicant had otherwise been dealt with harshly before being sentenced in serving a period of 11 months on remand and then after being sentenced had been under a parole order for a further period of four months.
Orders
The orders which should be made are:
1.Grant leave to appeal.
2.Allow the appeal.
3.Set aside the sentences imposed by the sentencing judge on 22 August 2024, including the presentence custody declaration.
4.Order that the applicant be released under the supervision of an authorised Corrective Services officer for a period of six months and that she must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld) and report within two business days on her release from custody to an authorised Corrective Services officer at Brisbane.
5.No convictions recorded for counts 1 and 2.
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