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R v Murray

R v Murray

Case [2012] QCA 68 27 March 2012

Appeal

Sentencing

Criminal Liability

Serious Violent Offenders

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Murray [2012] QCA 68

PARTIES:

R
v
MURRAY, Allen James
(applicant)

FILE NO/S:

CA No 149 of 2011
SC No 596 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2012

JUDGES:

Fraser JA, Margaret Wilson AJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDERS:

Application for leave to appeal against sentence refused

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 one charge of murder – where the applicant was found guilty of manslaughter – where, although the applicant intended to kill the deceased, he was only criminally responsible for manslaughter because of provocation – where the applicant was sentenced to nine years imprisonment – where there was a declaration that the applicant had been convicted of a serious violent offence – where the applicant did not challenge the imposition of a term of nine years – whether the serious violent offence declaration made the sentence manifestly excessive – whether the sentence was manifestly excessive in all the circumstances

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS OR VIOLENT OFFENDERS – where the applicant was sentenced to nine years imprisonment with a serious violent offence declaration – where the applicant did not challenge the imposition of a term of nine years imprisonment, but contended that the serious violent offence declaration made the sentence manifestly excessive – where the applicant contended that the sentencing judge placed too little weight on mitigating factors – whether the serious violent offence declaration was an improper exercise of the sentencing judge’s discretion – whether the sentencing judge gave proper consideration to mitigating factors

Corrective Services Act 2006 (Qld), s 182, s 184
Criminal Code 1899 (Qld), s 304
Penalties and Sentences Act 1992 (Qld), s 161B

R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited

COUNSEL:

A J Kimmins for the applicant
B J Power for the respondent

SOLICITORS:

Potts Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Margaret Wilson AJA and the order proposed by her Honour.

MARGARET WILSON AJA: On 22 May 2009 the applicant killed Graeme William Hughes. He was charged with murder, to which he pleaded not guilty. He was tried in the Supreme Court of Queensland, and found not guilty of murder, but guilty of manslaughter.

Provocation was a live issue at the trial. He was sentenced on the basis that although he had intended to kill the deceased, he was criminally responsible only for manslaughter because of provocation: Criminal Code 1899 (Qld) s 304.

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 [2012] QCA 68
Case: [2012] QCA 68
Decision Date: 27 March 2012

CaseChat Overview and Summary

In the matter of R v Murray, the appellant sought leave to appeal against his sentence following his conviction for manslaughter. The appellant had pleaded not guilty to murder but was found guilty of manslaughter due to provocation. Despite his intent to kill the deceased, the mitigating factor of provocation resulted in a reduced charge. The trial judge sentenced the appellant to nine years imprisonment, accompanied by a declaration that the appellant had been convicted of a serious violent offence. The appellant did not challenge the length of the sentence but argued that the serious violent offence declaration rendered the sentence manifestly excessive, and that the sentencing judge had insufficiently considered mitigating factors.

The primary legal issue before the court was whether the serious violent offence declaration rendered the sentence manifestly excessive. Additionally, the court had to determine if the sentencing judge had given proper consideration to the mitigating factors presented by the appellant. The appellant contended that the declaration, which significantly impacts the offender's post-release conditions and rehabilitation opportunities, was an improper exercise of the sentencing judge's discretion and exacerbated the severity of the sentence.

The court held that the serious violent offence declaration did not make the sentence manifestly excessive. It observed that the appellant did not challenge the nine-year imprisonment term directly but only the ancillary declaration. The court found that the appellant's argument regarding the sentencing judge's consideration of mitigating factors was not sufficiently compelling to warrant an appeal against the sentence. The court concluded that the sentencing judge had appropriately balanced the gravity of the offence with the mitigating factors, and the declaration did not render the sentence manifestly disproportionate.

Accordingly, the court refused the application for leave to appeal against the sentence. The decision underscored the court's respect for the trial judge's discretion in sentencing and the importance of proportionality in criminal sentencing.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 [2012] QCA 68

Most Recent Citation

R v Pollock [2012] QCA 231

Cases citing this decision · 6 of 6 shown

R v Peniamina (No 2)
[2021] QSC 282 Para 4

…ive introduction of s 9(10A) of the Penalties and Sentences Act . [11][2004] QCA 418. [12][2008] QCA 146. [13][2004] QCA 170. [14][2007] QCA 426. [15][2012] QCA 68.…
R v Lawler
[2020] QCA 166 Para 2

…e applicant would serve 80 per cent of that term. [2] R v Liddy; Ex parte Attorney-General (Qld) [2018] QCA 254; R v Civic [2014] QCA 322; R v Murray [2012] QCA 68; R v Sebo; Ex parte Attorney-General (Qld) (2007) 179 A Crim R 24; R v Hedlefs [2017] QCA 199; R v DeSalvo (2002) 127 A Crim R 229; R v Schubring; Ex…
R v O'Malley
[2019] QCA 130 Para 39

…In R v Murray [2012] QCA 68, the offender was convicted after trial of manslaughter. It was not a domestic violence offence. He had intended to kill his workmate with hammer blows to the head, but due to provocation, was criminally responsible only for manslaughter. He readily admitted to police to delivering th…
R v Liddy; Ex parte
[2018] QCA 254 Para 7

…ch the sentencing judge was referred, support the proposition that the sentence imposed was within the sentencing discretion. [34][2014] QCA 322. [35][2012] QCA 68.…
R v Hedlefs
[2017] QCA 199 Para 31

…s ,[12] R v Frame ,[13] and R v DeSalvo .[14] [7][2007] QCA 36. [8][2008] QCA 117. [9](2007) 179 A Crim R 24; [2007] QCA 426. [10][2005] QCA 142. [11][2012] QCA 68. [12][2007] QCA 144. [13][2009] QCA 9. [14](2002) 127 A Crim R 229; [2002] QCA 63.…
R v Pollock
[2012] QCA 231 Para 1

…bo , that a head sentence of nine years imprisonment was at the lower end of the generally applicable range of between nine and 12 years. [13][2012] QCA 68.…

View all 6 citing cases →

Cases cited in this decision · 10 of 10 shown

R v. Sebo; ex parte A-G (Qld)
[2007] QCA 426 Para 1

…pondent serve 80 per cent of it, would have been appropriate.[26] [26] R v Sebo; Ex parte Attorney-General (Qld) (2007) 179 A Crim R 24 at 29 [18]; [2007] QCA 426 at [18].…
R v McDougall and Collas
[2006] QCA 365 Para 1

…In R v McDougall and Collas [10] this Court said – [10][2007] 2 Qd R 87; [2006] QCA 365.…
R v BAX
[2005] QCA 365

…ts: [15]Jerrard JA can confess to having supported each of the different views at different times; see for example R v BAW [2005] QCA 334 and R v BAX [2005] QCA 365. •the discretionary powers granted by s 161B(3) and (4) are to be exercised judicially and so with regard to the consequences of making a declaration…
R v BAW
[2005] QCA 334

…may assist sentencing courts: [15]Jerrard JA can confess to having supported each of the different views at different times; see for example R v BAW [2005] QCA 334 and R v BAX [2005] QCA 365. •the discretionary powers granted by s 161B(3) and (4) are to be exercised judicially and so with regard to the consequen…
R v Cunningham
[2005] QCA 321 Para 5

…[19] R v Cunningham [2005] QCA 321 at [5]; CA No 145 of 2005, 29 August 2005.…
Markarian v The Queen
[2005] HCA 25

…Sentences Act thus falls to be exercised as part of, and not separately from, the conclusion of the process of arriving at a just sentence.[12] [11](2005) 228 CLR 357. [12] R v Bojovic [2002] 2 Qd R 183; R v Cowie [2005] 2 Qd R 533 at 537-538, [16]-[19]. [18]When determining the appropriate level of a head sentence f…
R v Orchard
[2005] QCA 141

…[21]A proposition established in R v Collins [2000] 1 Qd R 45 and repeated in R v Orchard [2005] QCA 141.…
R v Stepto
[2002] QCA 10 Para 1

…l and while he was in the bath were inflicted when he was incapable of any self-defence. [22]Contrast R v Bojovic [1999] QCA 206 and R v Stepto [2002] QCA 10. [23]Contrast R v Arnoutovic [2001] QCA 89.…
R v Arnoutovic
[2001] QCA 89 Para 1

…ed when he was incapable of any self-defence. [22]Contrast R v Bojovic [1999] QCA 206 and R v Stepto [2002] QCA 10. [23]Contrast R v Arnoutovic [2001] QCA 89.…
R v Bojovic
[1999] QCA 206 Para 1

…inflicted as the deceased fell and while he was in the bath were inflicted when he was incapable of any self-defence. [22]Contrast R v Bojovic [1999] QCA 206 and R v Stepto [2002] QCA 10. [23]Contrast R v Arnoutovic [2001] QCA 89.…

Legislation cited in this decision · 2

Corrective Services Act 2006 (Qld)
182, 184 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
161B 2 mentions (from Para 1)

CITATION:	R v Murray [2012] QCA 68
PARTIES:	R v MURRAY, Allen James (applicant)
FILE NO/S:	CA No 149 of 2011 SC No 596 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	27 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	9 March 2012
JUDGES:	Fraser JA, Margaret Wilson AJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDERS:	Application for leave to appeal against sentence refused
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 one charge of murder – where the applicant was found guilty of manslaughter – where, although the applicant intended to kill the deceased, he was only criminally responsible for manslaughter because of provocation – where the applicant was sentenced to nine years imprisonment – where there was a declaration that the applicant had been convicted of a serious violent offence – where the applicant did not challenge the imposition of a term of nine years – whether the serious violent offence declaration made the sentence manifestly excessive – whether the sentence was manifestly excessive in all the circumstances CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS OR VIOLENT OFFENDERS – where the applicant was sentenced to nine years imprisonment with a serious violent offence declaration – where the applicant did not challenge the imposition of a term of nine years imprisonment, but contended that the serious violent offence declaration made the sentence manifestly excessive – where the applicant contended that the sentencing judge placed too little weight on mitigating factors – whether the serious violent offence declaration was an improper exercise of the sentencing judge’s discretion – whether the sentencing judge gave proper consideration to mitigating factors Corrective Services Act 2006 (Qld), s 182, s 184 Criminal Code 1899 (Qld), s 304 Penalties and Sentences Act 1992 (Qld), s 161B R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited
COUNSEL:	A J Kimmins for the applicant B J Power for the respondent
SOLICITORS:	Potts Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent