R v Murgha - [2012] QCA 255

[2012] QCA 255

COURT OF APPEAL

MARGARET McMURDO P
HOLMES JA
HENRY J

CA No 119 of 2012
DC No 54 of 2012
DC No 164 of 2012
DC No 165 of 2012

THE QUEEN

MURGHA, Wungee Rex Applicant

BRISBANE

DATE 24/09/2012

JUDGMENT

THE PRESIDENT: On 10 May 2012 the applicant, Wungee Rex Murgha, pleaded guilty to unlawfully doing grievous bodily harm to his de facto partner at Palm Island on 9 July 2011. He also pleaded guilty to the related summary offence of breach of a domestic violence protection order. These offences were committed during the operational period of six suspended sentences. He was sentenced to three years imprisonment for the offence of grievous bodily harm. He was convicted but not otherwise punished in respect of the summary offence. The suspended periods of imprisonment were activated concurrently. His parole release date was set at 3 May 2013. In light of seven days presentence custody declared as time served under the sentence, this means his parole release date was after 12 months. He has applied for leave to appeal against his sentence on the ground that it is manifestly excessive.
He was represented at sentence but is now self-represented. He did not file any written outline of argument. In his oral submissions he emphasised that he wanted to be home for Christmas and that he would like to be released from prison after six months rather than 12.

He was 18 at the time of the offence and 19 at sentence. He had a criminal history. In November 2010, he was placed on 80 hours community service without conviction for endangering the safety of a person in a vehicle with intent; wilful damage of police property and failure to appear. In June 2011, he was found to have breached the community service order. The order was revoked and he was sentenced to an effective term of six months imprisonment to be suspended for one year. He was also convicted and sentenced to three months imprisonment for unlawful use of a motor vehicle; entering a dwelling within intent at night; assault and obstruct police officer; and failing to appear. Convictions were recorded and he was sentenced to an effective terms of six months imprisonment to be suspended for one year. In August and December 2011, after the commission of this offence, he was convicted but not further punished for breaches of bail.

The Prosecutor at sentence tendered a schedule of facts. The applicant was the respondent to a domestic violence protection order in favour of the complainant taken out on 22 February 2011. At around 8.30 pm on 9 July 2011, he and the complainant, who was four months pregnant, began to argue at home. She called him a "motherfucker". He went into the kitchen and picked up a knife. He pretended to throw the knife at her saying, "Don't think I'm gammin, I throw this knife at you." The complainant's grandmother told him to put the knife down and…

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 Murgha

Details

AGLC: R v Murgha [2012] QCA 255
Case: [2012] QCA 255
Decision Date: 24/09/2012

CaseChat Overview and Summary

In the case of R v Murgha, the applicant, Wungee Rex Murgha, appealed against his sentence of three years imprisonment for unlawfully causing grievous bodily harm to his de facto partner at Palm Island on 9 July 2011. The appeal was heard by the Queensland Court of Appeal, consisting of Margaret McMurdo P, Holmes JA, and Henry J. The applicant also pleaded guilty to the related offence of breaching a domestic violence protection order. The primary judge, in sentencing the applicant, activated six previously suspended sentences concurrently and set the parole release date at 3 May 2013.

The legal issue before the Court of Appeal was whether the sentence imposed by the primary judge was manifestly excessive. The applicant argued that the sentence should be reduced to allow him to be released from prison after six months rather than 12, so that he could be home for Christmas. The Court of Appeal needed to determine whether the sentence was appropriate in light of the seriousness of the offence, the applicant's young age, his early guilty plea, cooperation with the police, remorse, and prospects of rehabilitation, as well as the need for deterrence.

The Court of Appeal found that the sentence was not manifestly excessive. The offence was extremely serious, with the maximum penalty being 14 years imprisonment. The applicant had thrown a knife at his victim, who was four months pregnant, causing her to suffer a life-threatening injury. The offence was committed in breach of a domestic violence order and during the operational period of a series of suspended sentences. The Court of Appeal held that the primary judge had rightly identified the need for a deterrent sentence and that the applicant would benefit from a significant period on parole, which would encourage his rehabilitation. The Court of Appeal referred to R v Johnson and R v Baker to support its conclusion that the sentence imposed was not manifestly excessive. The application for leave to appeal was refused.

The Court of Appeal's decision in R v Murgha demonstrates the importance of considering the seriousness of the offence, the need for deterrence, and the prospects of rehabilitation when sentencing an offender. The Court of Appeal found that the primary judge had appropriately balanced these factors in determining the sentence. The Court of Appeal also emphasised the need for a deterrent sentence in cases of domestic violence, particularly on Palm Island, where the use of knives in such disputes is all too common. The Court of Appeal's decision in this case will provide guidance to sentencing courts when dealing with similar offences.

Orders