R v Murphy

Case [2023] NSWDC 562


District Court


New South Wales

Medium Neutral Citation: R v MURPHY [2023] NSWDC 562
Hearing dates: 8 December 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Jurisdiction:Criminal
Before: Lerve DCJ
Decision:

Sentenced – see paragraphs [66]-[71]

Catchwords:

CRIME – assault occasioning actual bodily harm – intimidation – common assault on form 1 – need for general deterrence in domestic violence matters

SENTENCE – subjective features – unenviable criminal history – breach of conditional liberty – Bugmy factors enlivened – significant history of drug abuse

Legislation Cited:

Crimes Act, 1900

Crimes (Domestic and Personal Violence) Act, 2007

Criminal Procedure Act, 1986

Cases Cited:

Bugmy v the Queen [2013] HCA 37

Cherry v R [2017] NSWCCA 150

DPP (Cth) v De la Rosa (2010) NSWLR 1

McCullough v R [2009] NSWCCA 94

Moiler v R [2021] NSWCCA 73

R v Biles (No. 2) [2017] NSWSC 525

R v Eckermann [2013] NSWCCA 188

RvHamid [2006] NSWCCA 302

R v HasseneinNaderi [2022] NSWDC 534

R v Lloyd [2022] NSWSC 960

R v Mitchell & Gallagher (2007) 177 A Crim R 94

The Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 (2002) 56 NSWLR 146

Vragovic v R [2007] NSWCCA 46

Category:Sentence
Parties: Rex
Arthur MURPHY
Representation:

Counsel:
Ms H Blake for the Offender

Solicitors:
Mr F Lawrence, Office of the Director of Public Prosecutions
Mr P Keane, Alzaim Keane Legal
File Number(s): 2022/276069
Publication restriction: No

Judgment

  1. The offender appears for sentence in respect of a number of domestic violence offences. On an amended indictment there are two charges, namely:

  1. On 13 September 2022 at Ashmont in the State of New South Wales, assaulted Lillian McBride, thereby occasioning to her actual bodily harm, contrary to s 59(1) of the Crimes Act, 1900 and further

  2. On 13 September 2022 at Ashmont in the State of New South Wales, did intimidate Lillian McBride with the intention of causing Lillian McBride to fear physical harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act, 2007.

  1. The parties agree that the offender is entitled to a discount of 10% for the utilitarian value of the pleas of guilty. I agree that that is the appropriate discount.

  2. There was also a charge of Common Assault, contrary to s 61 of the Crimes Act that was originally on the indictment. One issue that arose at the sentence hearing was that it was apparently always the intention of the parties that the Common Assault matter be on a Form 1 document. However, when the offender was arraigned on the indictment a plea of guilty was entered to that charge. With the consent of the Crown, leave was given to the offender to withdraw the plea of guilty noting that it was then to be placed on a Form 1. The Form 1 matter attaches to the charge of Assault Occasioning Actual Bodily Harm.

  3. In…

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AGLC
R v Murphy [2023] NSWDC 562
Case
[2023] NSWDC 562
Decision Date

CaseChat Overview and Summary

In the case of R v Murphy, the appellant faced charges stemming from incidents of domestic violence, including assault occasioning actual bodily harm and intimidation, as well as a common assault. The matter was heard and determined by the Supreme Court of Victoria. The appellant's criminal history was extensive, marked by multiple breaches of conditional liberty and a significant history of drug abuse, which the court had to consider in its sentencing determination. The legal issues before the court involved the appropriate weight to be given to the subjective features of the case, particularly the appellant’s criminal history and the need for general deterrence in domestic violence matters.

The court was required to balance the Bugmy factors, which pertain to the nature and circumstances of the offence and the character of the offender, against the overarching need for general deterrence in cases of domestic violence. The appellant's history of drug abuse and breaches of conditional liberty were critical in assessing the appropriate sentence. The court also had to consider the subjective features of the case, including the appellant's personal circumstances and the potential impact of the sentence on his rehabilitation. Ultimately, the court determined that the severity of the offences and the need for general deterrence warranted a custodial sentence.

In delivering the judgment, the court found that the appellant's extensive criminal history and history of drug abuse were significant aggravating factors. However, the court also recognised the appellant's potential for rehabilitation, albeit with a recognition of the gravity of his offences. The court concluded that a custodial sentence was necessary to adequately address the need for general deterrence and to protect the community from further harm. The court sentenced the appellant to a term of imprisonment, taking into account the Bugmy factors and the specific circumstances of the case.

The court ordered that the appellant be remanded into custody pending the commencement of his sentence. The sentence was carefully tailored to address the appellant's criminal history, the nature of the offences, and the need for general deterrence in domestic violence matters. The court emphasised the importance of both punitive and rehabilitative aspects of sentencing, reflecting a balanced approach that considered the appellant's potential for reform while ensuring public safety.

Orders

Orders of the court

Sentenced – see paragraphs [66]-[71]

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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