R v Murphy - [2011] QCA 363

SUPREME COURT OF QUEENSLAND

CITATION:

R v Murphy [2011] QCA 363

PARTIES:

R
v
MURPHY, Nathan Lee
(applicant)

FILE NO/S:

CA No 184 of 2011
DC No 20 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

13 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2011

JUDGES:

Muir JA and Margaret Wilson AJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.        Application for leave to appeal against sentence granted.

2.        Appeal against sentence allowed.

3.        Sentence varied by reducing to six months the term of imprisonment.

4.        The sentence is to be served cumulatively upon the existing term of imprisonment now being served.

5.        The applicant is eligible for parole on 16 April 2012.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded not guilty to a charge of sexual assault – where the applicant was found guilty after a trial – where the applicant was sentenced to 15 months’ imprisonment cumulative on a five year sentence he was then serving – where the parole eligibility was set at about twenty-one and a half months after the date of sentence – whether the sentence of 15 months was manifestly excessive – whether the parole eligibility date made the sentence manifestly excessive

Corrective Services Act 2006 (Qld), s 209
Penalties and Sentences Act 1992 (Qld), s 156A, s 160D, s 160F

R v Hatch [1999] QCA 495, considered
R v Keevers; R v Filewood [2004] QCA 207, considered

COUNSEL:

J J Allen for the applicant
S P Vasta for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

[1] MUIR JA: I agree with the reasons of Margaret Wilson AJA and with the proposed orders.

[2] MARGARET WILSON AJA: The applicant pleaded not guilty to a charge of sexual assault. He was tried before a jury who returned a verdict of guilty. On 16 June 2011 he was sentenced to 15 months’ imprisonment cumulative on a five year sentence he was then serving. The sentencing judge fixed his parole eligibility date as 1 April 2013.

[3] The applicant seeks leave to appeal against the sentence on the ground it was manifestly excessive. His counsel submitted that the term of 15 months’ imprisonment was itself manifestly excessive, and that the sentencing judge erred in fixing the parole eligibility date.

The circumstances of the offence

[4] At some time between 5.30 am and 6.00 am on 6 February 2011 the female complainant was sleeping in her bedroom beside her boyfriend when she was woken by two male intruders who had come into the room and jumped on the bed. One of them, Ashley Leese, who was known to her, began to wrestle with her boyfriend. The other man, the applicant,…

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 [2011] QCA 363
Case: [2011] QCA 363
Decision Date: 13 December 2011

CaseChat Overview and Summary

The appellant, Murphy, appealed against his sentence for a conviction of sexual assault. The case was heard in the Court of Criminal Appeal, where Murphy contended that the sentence of 15 months' imprisonment, cumulative on a five-year sentence he was already serving, was manifestly excessive. Additionally, he argued that the setting of parole eligibility at approximately 21 and a half months after the date of sentence exacerbated the perceived excessiveness of the sentence.

The court was tasked with determining whether the sentence was indeed manifestly excessive and whether the parole eligibility date contributed to this perception. The appeal hinged on whether the sentence imposed was disproportionate to the offence and whether the parole eligibility date rendered the sentence manifestly excessive. The court considered the principles of sentencing proportionality and the cumulative impact of the sentence on the appellant's existing imprisonment term.

The Court of Criminal Appeal found that the original sentence was manifestly excessive, taking into account the cumulative effect on the appellant's existing imprisonment term and the parole eligibility date. The court granted leave to appeal and allowed the appeal, varying the sentence by reducing the term of imprisonment to six months, to be served cumulatively upon the existing term. The court set the new parole eligibility date as 16 April 2012. This decision reflects a careful balancing of the principles of sentencing and the appellant's cumulative imprisonment term.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. Sentence varied by reducing to six months the term of imprisonment.

4. The sentence is to be served cumulatively upon the existing term of imprisonment now being served.

5. The applicant is eligible for parole on 16 April 2012.

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 [2011] QCA 363
PARTIES:	R v MURPHY, Nathan Lee (applicant)
FILE NO/S:	CA No 184 of 2011 DC No 20 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Gympie
DELIVERED ON:	13 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2011
JUDGES:	Muir JA and Margaret Wilson AJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. Sentence varied by reducing to six months the term of imprisonment. 4. The sentence is to be served cumulatively upon the existing term of imprisonment now being served. 5. The applicant is eligible for parole on 16 April 2012.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded not guilty to a charge of sexual assault – where the applicant was found guilty after a trial – where the applicant was sentenced to 15 months’ imprisonment cumulative on a five year sentence he was then serving – where the parole eligibility was set at about twenty-one and a half months after the date of sentence – whether the sentence of 15 months was manifestly excessive – whether the parole eligibility date made the sentence manifestly excessive Corrective Services Act 2006 (Qld), s 209 Penalties and Sentences Act 1992 (Qld), s 156A, s 160D, s 160F R v Hatch [1999] QCA 495, considered R v Keevers; R v Filewood [2004] QCA 207, considered
COUNSEL:	J J Allen for the applicant S P Vasta for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent