R v Murphy - [2023] QCA 98

SUPREME COURT OF QUEENSLAND

CITATION:

R v Murphy [2023] QCA 98

PARTIES:

R
v
MURPHY, Damain Douglas
(applicant)

FILE NO/S:

CA No 282 of 2022
DC No 2599 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 6 December 2022 (Jarro DCJ)

DELIVERED ON:

12 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2023

JUDGES:

Bond and Flanagan and Boddice JJA

ORDERS:

1.   Application for leave to appeal against sentence granted.

2.   Appeal allowed.

3.   Set aside the sentences imposed in the District Court on 6 December 2022 in relation to Counts 1 – 4 and in lieu impose the following sentences:

(a)   Count 1: order that the applicant be imprisoned for a period of two years and six months;

(b) Counts 2 – 4: convicted not further punished.

4.   The parole release date be fixed at 12 May 2023.

5. Pursuant to s 159A of the Penalties and Sentences Act 1992 it is stated that the applicant was held in pre-sentence custody for 533 days between 24 November 2021 to 11 May 2023. The Court declares that 533 days of pre-sentence custody be imprisonment already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of entering a dwelling and unlawfully depriving the complainant of her personal liberty (Count 1), three counts of common assault (Counts 2 – 4) and one summary offence of indecent act – where the applicant was sentenced to three and a half years imprisonment for Count 1, eight months imprisonment for each of Counts 2, 3 and 4 which was to be served concurrently with the sentence imposed for Count 1, and convicted but not further punished for the indecent act – where the respondent accepted that it was not appropriate for the applicant to receive separate, albeit concurrent, penalties for Counts 2, 3 and 4 as they formed particulars of the deprivation of liberty offence – whether the sentencing judge erred in imposing concurrent sentences of imprisonment for each of Counts 2, 3 and 4 – whether granting leave to appeal against sentence in respect of Counts 2, 3 and 4 results in the applicant being granted leave to appeal against sentence in respect of Count 1

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to three and a half years imprisonment for Count 1, which involved entering a dwelling and unlawfully depriving the complainant of her personal liberty – where the offending in relation to Count 1 was not premeditated, did not involve the use of a weapon, and was not engaged in for the purposes of committing a robbery or any offence of a sexual nature – where the offending in relation to Count 1 could…

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 Murphy [2023] QCA 98
Case: [2023] QCA 98
Decision Date: 12 May 2023

CaseChat Overview and Summary

In the case of R v Murphy, the applicant appealed against his sentence on multiple grounds, which the Court of Appeal considered. The applicant had pleaded guilty to various charges, including entering a dwelling and unlawfully depriving the complainant of her personal liberty, three counts of common assault, and a summary offence of an indecent act. The sentencing judge imposed a three and a half years imprisonment term for the first count and eight months imprisonment for each of the remaining counts, which were to be served concurrently. The applicant contested the imposition of separate, concurrent penalties for the counts of common assault, arguing it was not appropriate. The central legal issues revolved around whether the sentencing judge erred in imposing concurrent sentences for the counts of common assault and whether the overall sentence was manifestly excessive or inadequate.

The Court of Appeal reviewed the principles governing the imposition of concurrent sentences and noted that the sentences for counts of common assault should not be separate from the deprivation of liberty offence. The court recognised that the applicant's sentence for the primary offence was significant, yet it was not categorised as a "home invasion." It was further emphasised that the offences were not premeditated, involved no weapon, and were not for the purposes of robbery or sexual offence. The Court found that the sentence for the primary offence was manifestly excessive and that the imposition of concurrent sentences for the counts of common assault was incorrect. Consequently, the Court granted leave to appeal against the sentence, finding the original sentence to be manifestly excessive and the imposition of concurrent sentences for the counts of common assault to be erroneous.

In light of these findings, the Court of Appeal allowed the appeal, set aside the original sentences, and imposed new sentences. The new sentence for the first count was reduced to two years and six months imprisonment, and the applicant was convicted but not further punished for the counts of common assault. The Court also fixed the parole release date and declared that the time the applicant had spent in pre-sentence custody should be counted as time already served under the new sentence. This outcome ensures the sentences align more appropriately with the nature and circumstances of the offences committed.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Set aside the sentences imposed in the District Court on 6 December 2022 in relation to Counts 1 – 4 and in lieu impose the following sentences:

(a) Count 1: order that the applicant be imprisoned for a period of two years and six months;

(b) Counts 2 – 4: convicted not further punished.

4. The parole release date be fixed at 12 May 2023.

5. Pursuant to s 159A of the Penalties and Sentences Act 1992 it is stated that the applicant was held in pre-sentence custody for 533 days between 24 November 2021 to 11 May 2023. The Court declares that 533 days of pre-sentence custody be imprisonment already served under the sentence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Murphy [2023] QCA 98
PARTIES:	R v MURPHY, Damain Douglas (applicant)
FILE NO/S:	CA No 282 of 2022 DC No 2599 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 6 December 2022 (Jarro DCJ)
DELIVERED ON:	12 May 2023
DELIVERED AT:	Brisbane
HEARING DATE:	5 May 2023
JUDGES:	Bond and Flanagan and Boddice JJA
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal allowed. 3. Set aside the sentences imposed in the District Court on 6 December 2022 in relation to Counts 1 – 4 and in lieu impose the following sentences: (a) Count 1: order that the applicant be imprisoned for a period of two years and six months; (b) Counts 2 – 4: convicted not further punished. 4. The parole release date be fixed at 12 May 2023. 5. Pursuant to s 159A of the *Penalties and Sentences Act 1992* it is stated that the applicant was held in pre-sentence custody for 533 days between 24 November 2021 to 11 May 2023. The Court declares that 533 days of pre-sentence custody be imprisonment already served under the sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of entering a dwelling and unlawfully depriving the complainant of her personal liberty (Count 1), three counts of common assault (Counts 2 – 4) and one summary offence of indecent act – where the applicant was sentenced to three and a half years imprisonment for Count 1, eight months imprisonment for each of Counts 2, 3 and 4 which was to be served concurrently with the sentence imposed for Count 1, and convicted but not further punished for the indecent act – where the respondent accepted that it was not appropriate for the applicant to receive separate, albeit concurrent, penalties for Counts 2, 3 and 4 as they formed particulars of the deprivation of liberty offence – whether the sentencing judge erred in imposing concurrent sentences of imprisonment for each of Counts 2, 3 and 4 – whether granting leave to appeal against sentence in respect of Counts 2, 3 and 4 results in the applicant being granted leave to appeal against sentence in respect of Count 1 CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to three and a half years imprisonment for Count 1, which involved entering a dwelling and unlawfully depriving the complainant of her personal liberty – where the offending in relation to Count 1 was not premeditated, did not involve the use of a weapon, and was not engaged in for the purposes of committing a robbery or any offence of a sexual nature – where the offending in relation to Count 1 could…