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R v Murphy

R v Murphy

Case [2023] NSWDC 562 15 December 2023

Assault Occasioning Actual Bodily Harm

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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

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

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

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.

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.
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.
In…

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] NSWDC 562
Case: [2023] NSWDC 562
Decision Date: 15 December 2023

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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Citations

AGLC Citation

R v Murphy [2023] NSWDC 562

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Cases cited in this decision · 20 of 20 shown

Tonga, Samuel v R
[2023] NSWCCA 120 Para 59

…Stanley v DPP there have been two decisions in the New South Wales Court of Criminal Appeal, namely Zheng v R [2023] NSWCCA 64 and Tonga, Samuel v R [2023] NSWCCA 120.…
Zheng v R
[2023] NSWCCA 64 Para 59

…Since Stanley v DPP there have been two decisions in the New South Wales Court of Criminal Appeal, namely Zheng v R [2023] NSWCCA 64 and Tonga, Samuel v R [2023] NSWCCA 120.…
Stanley v DPP (NSW)
[2023] HCA 3 Para 56

…r less and that the court should order that any sentence be served by way of Intensive Correction Order. I observe, again, that since Stanley v DPP [2023] HCA 3 that has become the default submission in many sentence matters.…
R v Hassenein Naderi
[2022] NSWDC 534 Para 36

…der’s moral culpability is accordingly reduced. I note what I said about what have become known as the “ Bugmy factors” in R v Hassenein Naderi [2022] NSWDC 534 at [85]-[104], but in particular at [100]-[101]:…
Carly Anne Coles v Director of Public Prosecutions
[2022] NSWSC 960 Para 27

…There have been similar pronouncements in respect of offenders who contravene apprehended domestic violence orders. Bellew J in R v Lloyd [2022] NSWSC 960 said at [20]-[21]:…
Moiler v R
[2021] NSWCCA 73 Para 48

…At the sentence hearing I reminded counsel of the decision of the Court of Criminal Appeal in Moiler v R [2021] NSWCCA 73, where Button J at [58]-[59] said:…
Cherry v R
[2017] NSWCCA 150 Para 25

…iolence include Vragovic v R [2007] NSWCCA 46 at [33], Hiron v R [2007] NSWCCA 336 at [32] and R v Eckermann [2013] NSWCCA 188 at [55]. In Cherry v R [2017] NSWCCA 150 at [78] Johnson J (Macfarlan JA, Harrison J agreeing) said:…
R v Biles (No 2)
[2017] NSWSC 525 Para 26

…Fagan J in his remarks on sentence in R v Biles (No. 2) [2017] NSWSC 525 at [60] said:…
R v Mahon
[2015] NSWSC 25 Para 65

…milarly: R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at [41]; R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [65] – [88]; R v Mahon [2015] NSWSC 25 at [101] – [103]. Darryl Biles’ sentence must be sufficient to convey clearly the Court’s denunciation of his crime: R v Dunn [2004] NSWCCA 41; 144 A Cri…
Bugmy v The Queen
[2013] HCA 37 Para 36

…Clearly, as was made clear at the sentence hearing, the factors enunciated by the High Court in Bugmy v the Queen [2013] HCA 37 are enlivened to a significant extent. The offender has suffered many deprivations, in particular the lack of a proper and appropriate upbringing. The offender’s moral culpability is ac…
R v Eckermann
[2013] NSWCCA 188 Para 25

…errence in matters relating to domestic violence include Vragovic v R [2007] NSWCCA 46 at [33], Hiron v R [2007] NSWCCA 336 at [32] and R v Eckermann [2013] NSWCCA 188 at [55]. In Cherry v R [2017] NSWCCA 150 at [78] Johnson J (Macfarlan JA, Harrison J agreeing) said:…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194

…07 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 R v Hamid [2006] NSWCCA 302 R v Hassenein…
McCullough v R
[2009] NSWCCA 94 Para 20

…ury the more objectively serious the matter will be. See for example R v Mitchell & Gallagher (2007) 177 A Crim R 94 at [27]. However, McCullough v R [2009] NSWCCA 94 is authority for the proposition that the manner in which the injuries were inflicted, the reason for the infliction of the injuries and the circumst…
Hiron v R
[2007] NSWCCA 336 Para 25

…ppeal that speak of the need for general deterrence in matters relating to domestic violence include Vragovic v R [2007] NSWCCA 46 at [33], Hiron v R [2007] NSWCCA 336 at [32] and R v Eckermann [2013] NSWCCA 188 at [55]. In Cherry v R [2017] NSWCCA 150 at [78] Johnson J (Macfarlan JA, Harrison J agreeing) said:…
Vragovic v R
[2007] NSWCCA 46 Para 25

…decisions of the Court of Criminal Appeal that speak of the need for general deterrence in matters relating to domestic violence include Vragovic v R [2007] NSWCCA 46 at [33], Hiron v R [2007] NSWCCA 336 at [32] and R v Eckermann [2013] NSWCCA 188 at [55]. In Cherry v R [2017] NSWCCA 150 at [78] Johnson J (Macfarla…
R v Hamid
[2006] NSWCCA 302 Para 24

…The Court of Criminal Appeal in a number of cases going back to at least R v Hamid [2006] NSWCCA 302 at [86] has expressed the need for general deterrence in sentencing domestic violence offenders. Ms Blake on behalf of the offender argues that there is a causal connection between a mental condition suffered by the…
R v Dunn
[2004] NSWCCA 41

…015] NSWSC 25 at [101] – [103]. Darryl Biles’ sentence must be sufficient to convey clearly the Court’s denunciation of his crime: R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at [47].”…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 7

…ication under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported (2002) 56 NSWLR 146.…
Regina v Mitchell
[2002] NSWCCA 270 Para 20

…ng Actual Bodily Harm is generally a result offence i.e. the more serious the injury the more objectively serious the matter will be. See for example R v Mitchell & Gallagher (2007) 177 A Crim R 94 at [27]. However, McCullough v R [2009] NSWCCA 94 is authority for the proposition that the manner in which the injuries were inflict…
R v Edigarov
[2001] NSWCCA 436

…domestic violence towards female partners are to attract sentences of sufficient severity to deter others who might offend similarly: R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at [41]; R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [65] – [88]; R v Mahon [2015] NSWSC 25 at [101] – [103]. Darryl Bile…

Legislation cited in this decision · 0

No legislation cited in this case.

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