R v. Murgha

[2008] QCA 255

SUPREME COURT OF QUEENSLAND

CITATION:	R v Murgha [2008] QCA 255
PARTIES:	R v MURGHA, Neville Edward (applicant)
FILE NO/S:	CA No 108 of 2008 DC No 1 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	29 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2008
JUDGES:	Keane and Muir JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant pleaded guilty and was sentenced to two years imprisonment with a parole eligibility date set three months after the date of conviction for unlawful assault with bodily harm while armed with an offensive instrument and in company – where the assault occurred during the operational period of a suspended sentence for an offence of wounding – where the applicant was also ordered to serve the remaining 721 days of a three year sentence imposed for the wounding offence – where these two sentences were ordered to be served cumulatively – where the complainant was also the victim of two other offences for which the applicant has been convicted – where the applicant has had prior convictions for offences of violence – whether the sentenced imposed was manifestly excessive
COUNSEL:	The applicant appeared on his own behalf S G Bain for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

1. KEANE JA: I have had the advantage of reading the reasons of Muir JA.  I agree with his Honour's reasons and the order proposed by his Honour.

1. MUIR JA: The applicant was sentenced in the District Court in Townsville on 29 April 2008, after a plea of guilty, for the offence of unlawful assault with bodily harm while armed with an offensive instrument and in company, to two years imprisonment with a parole eligibility date set three months after the date of conviction.  At the same time he was ordered to serve the remaining 721 days of a sentence of three years, suspended for three years after serving 374 days, imposed for an offence of wounding and similar acts on 4 October 2006.  This sentence and the two year sentence were ordered to be served cumulatively.  The applicant appeals against his sentence on the grounds that it was manifestly excessive.

1. On 10 October 2001 the applicant was sentenced to 18 months imprisonment suspended after six months with an operational period of three years on a count of assault occasioning bodily harm whilst armed or pretending to be armed with a dangerous or offensive weapon.  He was also convicted on the same day of going armed so as to cause fear and sentenced to 12 months imprisonment suspended after six months.  On 10 December 2003 the applicant was convicted in the Magistrates Court of assault occasioning bodily harm.  On 8 June 2004 he was then convicted of breach of the suspended sentences imposed on 10 October 2001.  Terms of imprisonment of six months and of 12 months were imposed to be served concurrently and the whole of the 12 months balance of the suspended sentence was ordered to be served.  On 4 October 2006 the applicant was convicted of wounding his de facto spouse with a knife and was ordered to serve a term of imprisonment of three years suspended after serving 374 days for an operational period of three years.  The learned sentencing judge observed that the complainant’s resulting shoulder injury may have been a matter of good luck, as the complainant "turned her body when the blow was delivered".  In committing the offence the applicant breached a domestic violence protection order.  The complainant was also the victim of the offences for which the applicant was convicted on 10 October 2001 and 10 December 2003. 

1. The applicant was born on 1 November 1981 on Palm Island.  He remained a resident of Palm Island and the complainant was his de facto spouse.  He had three children with her aged between one and seven years of age. 

1. The subject offence occurred when, on 6 April 2007 at about 3 am, the complainant, who had been drinking, was approached by the applicant and another male.  The applicant abused her.  She went to walk away and was followed by the applicant, who, without provocation, hit her in the face.  She attempted to walk away but he followed her and again struck her in the face.  The applicant's co-accused, Pearson, then approached her and punched her in the face with his fist, abused her and struck her again.  The applicant then cut her in the neck with an object which has never been identified. 

1. After this assault, Pearson hit the complainant again, causing her to fall to the ground.  He kicked her a number of times to the body and head as she was prone.  The applicant, who was intoxicated at the time the offence was committed, is unable to say what object was used by him to cut the complainant.  The cut to the neck was about 4 centimetres long.  The complainant also had large bruises to her shoulder, bruising to her forehead and chin and a cut inside her lip. 

1. An aggravating feature of the assault is that it occurred during the operational period of a suspended sentence imposed for a similar offence.  The applicant also had prior convictions for offences of violence.

1. The applicant, in the past, has been given the benefit of suspended sentences which may be regarded as lenient.  He has failed to take advantage of his opportunities.  In the circumstances it was just to order that the whole of the balance of the suspended sentence be served.  It was appropriate also that the sentences be cumulative.  To order otherwise would have been to extend undue lenience and to ignore the necessity for personal and general deterrence.

1. The two year sentence, particularly when coupled with the generous recommendation cannot be regarded as excessive, let alone manifestly so.

1. I would dismiss the application.

1. DOUGLAS J:  I agree with the reasons for judgment of Muir JA and the order proposed by his Honour.