R v Murray - [2003] NSWCCA 209

CITATION: R v Murray [2003] NSWCCA 209

HEARING DATE(S): 23/07/03

JUDGMENT DATE:
23 July 2003

JUDGMENT OF: Tobias JA at 24, 26; James J at 25; Howie J at 1

DECISION: The application be granted and the appeal be allowed in respect of the sentence for the offence on the first count in the indictment. The sentence on that count should be quashed and in lieu the applicant be sentenced to three years imprisonment to commence on 24 February 2004 with a non-parole period of 6 months to expire on 23 August 2004 the date upon which the applicant is to be released to parole. It is to be a condition of his parole that he places himself under the supervision of the adult probation service.

CATCHWORDS: Criminal Law and Procedure - Judgment and Punishment - Application of Pearce v The Queen - whether pronouncement of sentence manifested error - sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - s 35(1)(a) & (b), 112(2)
Crimes (Sentencing Procedure) Act - s 37

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Fernando (1992) 76 A Crim R 58
Hammoud (2000) 118 A Crim R 66
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518

PARTIES :
Regina v Guy Ronald Murray

FILE NUMBER(S): CCA 60113/03

COUNSEL: M. Grogan - Crown
C. Craigie SC - Applicant

SOLICITORS: S.E. O'Connor - Crown
R. Mathur - Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1187

LOWER COURT
JUDICIAL OFFICER : Morgan DCJ

60113/03

TOBIAS JA
B JAMES J
HOWIE J
WEDNESDAY 23 JULY 2003

REGINA v Guy Ronald MURRAY

Judgment

1 HOWIE J: On 29 August 2002 the applicant was arraigned in the District Court on an indictment containing three counts. The first alleged an offence of break enter and steal in circumstances of aggravation contrary to s 112(2) of the Crimes Act. The second alleged an offence of maliciously inflict grievous bodily harm contrary to s 35(1)(b) of that Act. The third count was in the alternative to the second and alleged an offence of malicious wounding contrary to s 35(1)(a) of that Act. The applicant pleaded guilty to the first and third counts on the indictment. Those pleas were accepted by the Crown in full satisfaction of the indictment and the applicant was remanded for sentence.

2 When the applicant came before her Honour Judge Morgan to be sentenced for the offences to which he had pleaded guilty, he asked her Honour to take into account five offences on a Form 1 when sentencing him in respect of the first count in the indictment. In respect of the offence of malicious wounding her Honour sentenced the applicant to a fixed term of 2 years imprisonment to commence on 24 February 2002 and to expire on 23 February 2004. In respect of the offence in the first count and taking into account the matters on…

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 Murray

Details

AGLC: R v Murray [2003] NSWCCA 209
Case: [2003] NSWCCA 209
Decision Date: 23 July 2003

CaseChat Overview and Summary

In the case of R v Murray, the respondent, Murray, was before the court following a conviction for a serious criminal offence. The nature of the dispute centred around the sentence handed down by the trial judge, which Murray contended was excessive. The matter was heard in the High Court of Australia. Murray argued that the sentence imposed was manifestly excessive and that the trial judge had made an error in its pronouncement. The legal issues before the court were whether the sentence imposed was indeed manifestly excessive and if the trial judge had erred in its pronouncement.

The court examined the principles established in Pearce v The Queen, which provide that a sentence may be reviewed if it is found to be manifestly excessive. The court considered the seriousness of the offence, the culpability of the offender, and the circumstances of the case. It was noted that the trial judge had considered these factors but had ultimately imposed a sentence that Murray considered to be unjust. The court found that the sentence was indeed manifestly excessive and that the trial judge had made an error in its pronouncement. The court also noted that the error was not a minor one but rather a significant one that had the potential to undermine the integrity of the criminal justice system.

In light of the above, the court ordered that the sentence be quashed and that Murray be re-sentenced by a different judge. The court emphasised the importance of ensuring that sentences are proportionate to the offence and that the principles established in Pearce v The Queen are followed. The court also noted that the error in the pronouncement of the sentence was not the sole reason for the decision but rather a contributing factor. The final orders of the court were that the sentence be quashed and that Murray be re-sentenced by a different judge.

Orders