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R v Murray

R v Murray

Case [2014] QCA 250 7 October 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Murray [2014] QCA 250

PARTIES:

R
v
MURRAY, Kerry Anne
(applicant)

FILE NO/S:

CA No 192 of 2014
DC No 19 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Warwick

DELIVERED ON:

7 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2014

JUDGES:

Fraser, Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the application for leave to appeal against sentence.

2.   Allow the appeal.

3.   Set aside the sentence imposed in the District Court.

4.   The applicant is sentenced to imprisonment for nine months with the parole release date fixed at 7 October 2014.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to assaulting a police officer whilst the police officer was acting in the execution of his duty with the circumstance of aggravation that the applicant spat on the police officer – where the applicant was sentenced to 15 months imprisonment to be released on parole after serving 5 months – where s 340(1)(b) of the Criminal Code was amended in 2012 to increase the maximum penalty for this offence to 14 years imprisonment – where the applicant is 19 years old and has a one year old child – where the absence of any comparable sentencing decision after the increase in the maximum penalty makes it necessary to refer to earlier cases – whether the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 340

Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; [2014] HCA 2, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Barry[2007] QCA 48, considered
R v Brown[2013] QCA 185, cited
R v CBI[2013] QCA 186, cited
R v Chong; Ex parte Attorney-General (Qld) (2008) 181 A Crim R 200; [2008] QCA 22, distinguished
R v King (2008) 179 A Crim R 600; [2008] QCA 1, considered
R v Laskus[1996] QCA 120, considered
R v McConachy[2011] QCA 183, cited
R v McLean (2011) 212 A Crim R 199; [2011] QCA 218, considered
R v Samad[2012] QCA 63, cited

COUNSEL:

R East for the applicant
J A Wooldridge for the respondent

SOLICITORS:

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

FRASER JA: On 14 July 2014 the applicant pleaded guilty to an offence that on 8 December 2013 she assaulted a police officer whilst the police officer was acting in the execution of his duty, with the circumstance of aggravation that the applicant spat on the police officer. The applicant was sentenced to imprisonment for 15 months with an order that she be released on parole on 13 December 2014,…

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 [2014] QCA 250
Case: [2014] QCA 250
Decision Date: 7 October 2014

CaseChat Overview and Summary

The applicant, Murray, appealed against the sentence imposed by the District Court, which found him guilty of assaulting a police officer in the execution of their duty. The offence was committed with the aggravating circumstance that Murray spat on the police officer. The District Court sentenced Murray to 15 months imprisonment, with release on parole after serving five months. Murray's appeal was predicated on the contention that the sentence was manifestly excessive. The Court of Appeal was required to consider whether the sentence imposed was disproportionate in light of the increased maximum penalty for the offence following an amendment to the Criminal Code in 2012.

The Court of Appeal was tasked with determining whether the sentence imposed by the District Court was manifestly excessive or inadequate. Murray argued that the sentence was manifestly excessive, particularly given the absence of any comparable sentencing decisions following the increase in the maximum penalty for the offence. The Court had to consider whether the sentence imposed was appropriate in all the circumstances, including Murray's age and the fact that he had a one-year-old child.

In determining the appeal, the Court of Appeal held that the sentence was manifestly excessive. The Court observed that the absence of any comparable sentencing decisions following the increase in the maximum penalty necessitated reference to earlier cases. The Court also considered Murray's age and the fact that he had a one-year-old child. The Court concluded that the sentence imposed was manifestly excessive and ordered that the sentence be set aside. The Court sentenced Murray to imprisonment for nine months, with the parole release date fixed at 7 October 2014.

The Court granted Murray's application for leave to appeal against sentence, allowed the appeal, set aside the sentence imposed by the District Court, and sentenced Murray to imprisonment for nine months with the parole release date fixed at 7 October 2014.

Orders

Orders of the court

1. Grant the application for leave to appeal against sentence.

2. Allow the appeal.

3. Set aside the sentence imposed in the District Court.

4. The applicant is sentenced to imprisonment for nine months with the parole release date fixed at 7 October 2014.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Murray [2014] QCA 250

Most Recent Citation

Queensland Police Service v Terare [2014] QCA 260

Cases citing this decision · 19 of 19 shown

Stevenson v Commissioner of Police
[2023] QDC 126 Para 14

…o relevant comparative decisions. In particular, the cases referred to and relied upon by the police prosecutor – R v King [2008] QCA 1, R v Murray [2014] QCA 250, Harris v the Queensland Police Service [2018] QDC 27, and R v Cooney [2019] QCA 166 – described by the learned Magistrate in his sentencing remarks as…
Department of Environment and Science v Tyre Transitions Pty Ltd
[2023] QDC 94 Para 19

…lly result in more severe penalties.[50] [48] R v Pham (2015) 256 CLR 550 at [27]. [49] Penalties and Sentences Act 1992 , s 9(2)(b). [50] R v Murray [2014] QCA 250 at [16].…
WPT v QPS
[2021] QDC 250 Para 7

…ric [2003] QCA 132; R v Holden [2006] QCA 416; R v Pootchemunka (Unreported, QDC, 3 October 2011, Harrison DCJ); R v Brown [2013] QCA 185; R v Murray [2014] QCA 250; R v Benson [2014] QCA 188; R v MCL [2017] QCA 114; and R v Adcock [2021] QDC 116.…
McLean v Workers' Compensation Regulator
[2021] QDC 22 Para 1

…courts.[15] [14] Explanatory Memorandum – Workers’ Compensations and Rehabilitation and Other Legislation Amendment Bill 2013. [15] R v Murray [2014] QCA 250 at [16] – [17].…
R v Cooney
[2019] QCA 166

…R 600; [2008] QCA 1, discussed R v Mathieson [2005] QCA 313, discussed R v Murray (2014) 245 A Crim R 37; [2014] QCA 250, discussed R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, applied R v Taylor [2004] QCA 447, discussed Royall v The Queen (1990) 172 CLR 378; [1991] HCA 27, applied Veen v The Queen [No 2] (1988) 1…
Avery & Ors v Queensland Police Service
[2019] QDC 21

…ckson [2011] QCA 103 R v KAR & Ors [2018] QCA 211 R v Lovell [1999] 2 Qd R 79 R v MCL [2017] QCA R v Mules [2007] QCA 47 R v Murray [2014] QCA 250 R v Pham [2017] QCA 43 R v Prentice [2003] QCA 34 R v Roberts [2018] EWCA Crim 2739 R v Spina [2012] QCA 179 R v Taylor (1999) 106 A Crim R 578 R v Ungvari [2010] QCA…
R v Hannan; Ex parte
[2018] QCA 201 Para 13

…as found to be not manifestly excessive provides no support for the sentence imposed upon the applicant.” [28](2014) 245 A Crim R 37; [2014] QCA 250 at [18]. [29]With whom Gotterson and Morrison JJA concurred. [30][1996] QCA 120.…
R v LAL
[2018] QCA 179 Para 4

…ract higher penalties but that is not necessarily so for those at the lower end. See R v Samad [2012] QCA 63 at [30] and R v Murray [2014] QCA 250 at [16]. R v Briese During submissions at first instance, the applicant’s counsel agreed with his Honour that it was not proper for his Honour to first decide whether…
Murray v Commissioner of Police
[2018] QDC 96 Para 1

…rs which are not present in the case of this mature offender with a lengthy criminal history, including two serious offences involving violence. [8][2014] QCA 250.…
R v Formenton
[2018] QCA 77 Para 29

…pon cases decided when the maximum penalty was lower. [48] Markarian v The Queen (2005) 228 CLR 357 at [31], referred to by Fraser JA in R v Murray [2014] QCA 250 at [16]. [49] R v Murray at [16], referring in particular to R v CBI [2013] QCA 186 at [19].…
Harris v Queensland Police Service
[2018] QDC 27 Para 6

…Magistrate, nonetheless, noted that a deterrent sentence was called for. He placed significant emphasis on the Court of Appeal decision of R v Murray [2014] QCA 250 in arriving at the sentence imposed. This is a very useful comparative decision, bearing in mind the recent genesis of the offence the subject of the…
R v Squires
[2018] QCA 8 Para 16

…[5][2014] QCA 250 per Fraser JA at [16].…
Addo v Senior Constable Jacovos
[2016] QDC 271 Para 1

…t does not mean that sentences ought be necessarily higher or proportionally increased.[22] [21] Criminal Law Amendment Act 2012. [22] R v Murray [2014] QCA 250 at [16] per Fraser JA.…
Greenwood v Tom
[2016] QDC 196

…g 12 months would likely result in imprisonment, was sufficiently severe to be a salutary deterrent to him and to others like him. The Queen v Murray [2014] QCA 250 concerned an attendance by police officers response to a domestic disturbance. The applicant was one of a number of people yelling and swearing in th…
Ross v Commissioner of Police
[2015] QDC 315 Para 1

…The Solicitor then proceeded though the authorities, including the cases referred to by the prosecutor. He referred to R v Murray [2014] QCA 250, and in particular Queensland Police Service v Terare [2014] QCA 260 which is specifically referred to in the 6 discretionary errors referred to in Mr Ross’s outline; R…
R v Schoner
[2015] QCA 190 Para 1

…o some of the earlier cases. [38] Criminal Code and Civil Liability Amendment Act 2007 (Qld) s 4. [39] R v CBI [2013] QCA 186 at [19]; R v Murray [2014] QCA 250 at [16]; in each case per Fraser JA.…
R v Lappan
[2015] QCA 180 Para 26

…r [29]; and R v Taylor and Leigep [30]. Williams , Marshall , Taylor and Taylor and Leigep were identified as cases involving the use of a knife. [27][2014] QCA 250 at [16]. [28]Referring to Devlyn at [32]. [29][2004] QCA 447. [30][1997] QCA 159.…
Walker v Maroney
[2015] QDC 87

…, 195 Teelow v Commissioner of Police [2009] 2 Qd R 489 Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; Murray v R [2014] QCA 250 Lankester [2010] WACIC 13 Salmon v Town of Cottesloe [2004] WASCA 66 COUNSEL: R Frigo for the appellant A Sinclair for the respondent SOLICITORS: Appellant: OMB Lawyers Re…
Queensland Police Service v Terare
[2014] QCA 260 Para 1

…penalty has been increased from seven to 14 years imprisonment. [35][2013] QCA 186, Fraser JA, [19]; Gotterson JA and Mullins J agreeing; R v Murray [2014] QCA 250, Fraser JA [16], Gotterson and Morrison JJA agreeing. [36] R v King (2008) 179 A Crim R 600, Holmes JA, [16].…

View all 19 citing cases →

Cases cited in this decision · 17 of 17 shown

R v Benson
[2014] QCA 188 Para 1

…ximum penalty for the particular offence of which the applicant was convicted will lead to more severe penalties for that offence (see R v Benson [2014] QCA 188 at [36] per Morrison JA), “[i]t does not necessarily follow from the fact of an increase in the maximum penalty that all such offences committed after th…
Barbaro v The Queen
[2014] HCA 2

…he sentence was manifestly excessive Criminal Code 1899 (Qld), s 340 Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; [2014] HCA 2, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Barry [2007] QCA 48, considered R v Brown [2013] QCA 185, cited R v CBI [2013] QCA 186, cited R…
R v CBI
[2013] QCA 186 Para 1

…nces at all levels (see R v SAH [2004] QCA 329 at [12] – [13].) The respondent’s counsel endorsed the following remarks I made in R v CBI [2013] QCA 186 at [19] about an increase in a different maximum penalty:…
R v Brown
[2013] QCA 185 Para 1

…ier cases, if only to shed light upon the circumstances in which the increased maximum was enacted. The relevant decisions were analysed in R v Brown [2013] QCA 185. It is not useful in this case to refer to decisions in which the penalty reflected spitting at a police officer as well as other significant assault…
R v Samad
[2012] QCA 63 Para 1

…all such offences committed after the amendment came into effect should attract a higher penalty than they previously would have” ( R v Samad [2012] QCA 63 at [30] per Wilson AJA). Nor should a doubling of the maximum penalty necessarily result in a doubling of sentences at all levels (see R v SAH [2004] QCA 329…
R v McLean
[2011] QCA 218

…] QCA 1, considered R v Laskus [1996] QCA 120, considered R v McConachy [2011] QCA 183, cited R v McLean (2011) 212 A Crim R 199; [2011] QCA 218, considered R v Samad [2012] QCA 63, cited COUNSEL: R East for the applicant J A Wooldridge for the respondent SOLICITORS: Legal Aid Queensland for the applicant Directo…
R v McConachy
[2011] QCA 183 Para 1

…Nor was there any other evidence that the applicant’s child would suffer exceptional hardship upon her incarceration, such as in R v McConachy [2011] QCA 183. The respondent’s counsel submitted that the applicant’s motherhood could not overwhelm the requirement that retribution and deterrence be taken into accou…
R v. Chong; ex parte A-G (Qld)
[2008] QCA 22 Para 1

…od of incarceration beyond that for which the applicant contended was negligible. This case was unlike R v Chong; ex parte Attorney General (Qld) [2008] QCA 22, in which a mother sentenced on Mornington Island was given immediate parole in circumstances in which she was still breast feeding her child, the breast…
R v King
[2008] QCA 1

…v Chong; Ex parte Attorney-General (Qld) (2008) 181 A Crim R 200; [2008] QCA 22, distinguished R v King (2008) 179 A Crim R 600; [2008] QCA 1, considered R v Laskus [1996] QCA 120, considered R v McConachy [2011] QCA 183, cited R v McLean (2011) 212 A Crim R 199; [2011] QCA 218, considered R v Samad [2012] QCA…
R v Barry
[2007] QCA 48 Para 1

…hich the penalty was wholly or at least very substantially attributable to spitting at a police officer, namely, R v Laskus [1996] QCA 120, R v Barry [2007] QCA 48, R v King (2008) 179 A Crim R 600, and R v McLean (2011) 212 A Crim R 199. In each of those cases the offender pleaded guilty.…
R v Hamilton
[2006] QCA 122 Para 1

…her in selecting, say, nine months, the judge started from too high a level of penalty.” He referred to Laskus , Barry , and R v Hamilton [2006] QCA 122 (in which an assault upon police officers which involved swinging punches, hitting the complainant officer in the head and torso, and spitting, attracted a sente…
Markarian v The Queen
[2005] HCA 25

…s 340 Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; [2014] HCA 2, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Barry [2007] QCA 48, considered R v Brown [2013] QCA 185, cited R v CBI [2013] QCA 186, cited R v Chong; Ex parte Attorney-General (Qld) (2008) 181 A Crim R 2…
R v SAH
[2004] QCA 329 Para 1

…t [30] per Wilson AJA). Nor should a doubling of the maximum penalty necessarily result in a doubling of sentences at all levels (see R v SAH [2004] QCA 329 at [12] – [13].) The respondent’s counsel endorsed the following remarks I made in R v CBI [2013] QCA 186 at [19] about an increase in a different maximum pe…
House v R
[1936] HCA 40 Para 1

…there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”: House v The King (1936) 55 CLR 499 at 505.…
R v Laskus
[1996] QCA 120 Para 1

…ss only the decisions in which the penalty was wholly or at least very substantially attributable to spitting at a police officer, namely, R v Laskus [1996] QCA 120, R v Barry [2007] QCA 48, R v King (2008) 179 A Crim R 600, and R v McLean (2011) 212 A Crim R 199. In each of those cases the offender pleaded guilt…
Zirilli v The Queen
[2014] HCA 212 Para 1

…nt had served more than two months in custody. The submission about the available range of sentences should be disregarded. In Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372 at 377 [28], French CJ, Hayne, Kiefel and Bell JJ (Gageler J dissenting) held that a “conclusion that an error has (or has not) been made n…
House v The King
63 WN 176 Para 1

…“that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”: House v The King (1936) 55 CLR 499 at 505.…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Murray [2014] QCA 250
PARTIES:	R v MURRAY, Kerry Anne (applicant)
FILE NO/S:	CA No 192 of 2014 DC No 19 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Warwick
DELIVERED ON:	7 October 2014
DELIVERED AT:	Brisbane
HEARING DATE:	3 October 2014
JUDGES:	Fraser, Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal against sentence. 2. Allow the appeal. 3. Set aside the sentence imposed in the District Court. 4. The applicant is sentenced to imprisonment for nine months with the parole release date fixed at 7 October 2014.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to assaulting a police officer whilst the police officer was acting in the execution of his duty with the circumstance of aggravation that the applicant spat on the police officer – where the applicant was sentenced to 15 months imprisonment to be released on parole after serving 5 months – where s 340(1)(b) of the Criminal Code was amended in 2012 to increase the maximum penalty for this offence to 14 years imprisonment – where the applicant is 19 years old and has a one year old child – where the absence of any comparable sentencing decision after the increase in the maximum penalty makes it necessary to refer to earlier cases – whether the sentence was manifestly excessive Criminal Code 1899 (Qld), s 340 Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; [2014] HCA 2, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Barry[2007] QCA 48, considered R v Brown[2013] QCA 185, cited R v CBI[2013] QCA 186, cited R v Chong; Ex parte Attorney-General (Qld) (2008) 181 A Crim R 200; [2008] QCA 22, distinguished R v King (2008) 179 A Crim R 600; [2008] QCA 1, considered R v Laskus[1996] QCA 120, considered R v McConachy[2011] QCA 183, cited R v McLean (2011) 212 A Crim R 199; [2011] QCA 218, considered R v Samad[2012] QCA 63, cited
COUNSEL:	R East for the applicant J A Wooldridge for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent