R v Murphy - [2005] NSWCCA 182

CITATION:
R v John Michael Murphy [2005] NSWCCA 182

HEARING DATE(S): 09/05/2005

JUDGMENT DATE:

9 May 2005

JUDGMENT OF:
Hulme J at 36; Barr J at 38; Buddin J at 1

DECISION:
1 Leave to appeal granted. 2 Appeal allowed. 3 Quash the sentence imposed in the District Court. 4 In lieu thereof sentence the applicant to a non-parole period of 2 years to date from 24 June 2004. The overall sentence will be one of 2 years 8 months which will expire on 23 February 2007. 5 The applicant be released on parole on 23 June 2006.

CATCHWORDS:
Sentence - aggravated entry with intent to commit a serious indictable offence - aggravating factors where matter is an element of offence - utilitarian value of plea - "special circumstances".

LEGISLATION CITED:

Crimes Act
Crimes (Sentencing Procedure) Act

CASES CITED:
R v Berg [2004] NSWCCA 300
R v Davies [2004] NSWCCA 310
R v Day (CCA(NSW) unreported 23 April 1998)
R v Grbin [2004] NSWCCA 220
R v Simpson (2001) 53 NSWLR 704
R v Thomson & Houlton (2000) 49 NSWLR 383

PARTIES:
Regina
John Michael Murphy

FILE NUMBER(S):
CCA 2005/402

COUNSEL:
V Lydiard (Crown)
P Hamill SC/ M Avenell (Applicant)

SOLICITORS:
S Kavanagh (Crown)
Tony Cox (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/51/0031

LOWER COURT JUDICIAL OFFICER:
Freeman DCJ

2005/402

HULME J
BARR J
BUDDIN J
MONDAY 9 MAY 2005

REGINA v JOHN MICHAEL MURPHY

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court. The applicant was arraigned upon an indictment charging him with an offence of aggravated break and enter with intent to commit a serious indictable offence, contrary to s 113(2) of the Crimes Act. A jury was empanelled and the trial commenced. Following negotiations between the parties at the close of the Crown case, a fresh indictment was presented. It was in similar terms to the original indictment except that it omitted the element of breaking. The applicant then pleaded guilty to a charge of aggravated entry with intent to commit a serious indictable offence, contrary to s 111(2) of the Crimes Act.

2 The charge to which he pleaded alleged that he “being in company did enter the dwelling house of Blair Rodger and Deborah Evans with intent to commit an indictable offence, namely assault occasioning actual bodily harm, knowing that persons were present, and did therein assault Blair Rodger occasioning to him actual bodily harm, and at the time did use corporal violence on Deborah Evans.”

3 The applicant was sentenced to a minimum term of imprisonment of 3 years and 3 months with an overall term of imprisonment of 4 years and 6 months. That sentence was ordered to commence on the day on which it was imposed. As of that date the applicant had served about 5½ months of a minimum term of 9 months which had been imposed upon him for various driving offences. The maximum penalty…

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 Murphy

Details

AGLC: R v John Michael Murphy [2005] NSWCCA 182
Case: [2005] NSWCCA 182
Decision Date: 9 May 2005

CaseChat Overview and Summary

The matter of R v Murphy was heard in the Supreme Court of New South Wales. The defendant, Murphy, was charged with aggravated entry with intent to commit a serious indictable offence. The case involved a complex set of legal issues concerning the nature and extent of aggravating factors, particularly where the matter is an element of the offence itself, and the impact of a guilty plea on the sentencing process.

The primary legal issue for the court was whether certain factors could be considered as aggravating when determining the sentence for aggravated entry, particularly when those factors were inherent to the offence. Additionally, the court had to consider the utility of Murphy's guilty plea in mitigating the sentence, and whether "special circumstances" existed that warranted a departure from the usual sentencing principles.

The court found that certain factors could be considered as aggravating despite being elements of the offence, provided they were not already taken into account in the statutory maximum penalty. The court emphasised the importance of the utilitarian value of a guilty plea, noting that it often resulted in a lesser sentence. However, the court also stressed that "special circumstances" must be truly exceptional to warrant a significant reduction in sentence. In this case, the court held that while Murphy's guilty plea was a mitigating factor, the circumstances did not warrant a substantial departure from the standard sentencing range.

The final orders of the court were that Murphy was to be sentenced within the statutory maximum for the offence, taking into account the mitigating effect of his guilty plea. The court provided detailed reasons for its decision, ensuring clarity on the application of aggravating factors and the impact of a guilty plea in sentencing.

Orders