R v. Murray - [2008] QCA 340

SUPREME COURT OF QUEENSLAND

CITATION:

R v Murray [2008] QCA 340

PARTIES:

R
v
MURRAY, Keith William
(applicant)

FILE NO/S:

CA No 145 of 2008
DC No 1228 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

31 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2008

JUDGES:

Keane JA, Jones and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant was sentenced to terms of imprisonment totalling nine years concurrently for the offence of robbery whilst armed in company, and multiple offences of burglary, stealing and unlawful use of a motor vehicle – whether adequate allowance was made by the primary judge for the applicant's early plea and assistance to police – where the applicant confessed uncharged offences to police – where applicant had a lengthy criminal history – whether the sentence imposed was manifestly excessive in the circumstances

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, applied
R v Jayasuria [2004] QCA 238, considered
R v Perry [2002] QCA 345, distinguished
R v Shipman [2004] QCA 171, considered

COUNSEL:

C G Cassidy for the applicant
G J Cummings for the respondent

SOLICITORS:

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

KEANE JA: I have had the advantage of reading a draft of reasons for judgment prepared by Jones J. I agree with his Honour's reasons and the order proposed by his Honour.

JONES J: The Applicant seeks leave to appeal against sentences of imprisonment imposed for various offences as follows:-

Robbery whilst armed and in company (count 7) 9 years imprisonment

Burglary and stealing (counts 1, 2, 4, 5, 9-19, 22, 23) 5 years imprisonment

Burglary (counts 20 and 24) 5 years imprisonment

Attempted burglary (count 8) 1 year imprisonment

Unlawful use and attempted unlawful use of

a motor vehicle (counts 3, 6) 1 year imprisonment

The applicant was sentenced on 8 May 2008 having failed to appear on the three previous occasions on which the matter had been listed for sentence. The applicant, or his advisors, had indicated as early as 27 June 2007 that he would plead guilty to the offences and he was arraigned on an ex officio indictment. The sentencing proceeded on the basis of an early plea.

Behind the plea are factors favourable and unfavourable to the applicant. He has an appalling criminal history commencing when he was 17 years of age. The subject offences were committed when he was aged between 26-29 years. His criminal history details many convictions for offences of dishonesty – stealing, breaking and entering, unauthorised…

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 [2008] QCA 340
Case: [2008] QCA 340
Decision Date: 27 October 2008

CaseChat Overview and Summary

In the case of R v. Murray, the applicant, who had been sentenced to imprisonment for nine years concurrently for robbery while armed in company, multiple burglaries, stealing, and unlawful use of a motor vehicle, appealed against the sentence. The applicant argued that the primary judge had not adequately taken into account the early plea of guilty and the assistance provided to the police, including confessing to uncharged offences. The applicant's lengthy criminal history was also considered in the appeal. The appeal focused on whether the sentence imposed was manifestly excessive given the circumstances, including the applicant's early plea and cooperation with authorities.

The court had to determine whether the primary judge had appropriately assessed the mitigating factors of the applicant's early plea and the assistance provided to the police. Additionally, the court considered whether the sentence was excessive, taking into account the applicant's criminal history and the nature of the offences committed. The court needed to weigh the mitigating factors against the seriousness of the crimes and the need for deterrence and denunciation.

The court examined the sentencing principles and the factors considered by the primary judge. It noted that the primary judge had indeed acknowledged the applicant's early plea and assistance to the police, but also highlighted the seriousness of the offences and the need for a sentence that appropriately reflected these considerations. The court found that the sentence was not manifestly excessive, as it had adequately balanced the mitigating factors with the gravity of the crimes and the need to uphold public confidence in the justice system. Consequently, the court dismissed the application for leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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

Full text does not contain this section.

CITATION:	R v Murray [2008] QCA 340
PARTIES:	R v MURRAY, Keith William (applicant)
FILE NO/S:	CA No 145 of 2008 DC No 1228 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	31 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2008
JUDGES:	Keane JA, Jones and Atkinson JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant was sentenced to terms of imprisonment totalling nine years concurrently for the offence of robbery whilst armed in company, and multiple offences of burglary, stealing and unlawful use of a motor vehicle – whether adequate allowance was made by the primary judge for the applicant's early plea and assistance to police – where the applicant confessed uncharged offences to police – where applicant had a lengthy criminal history – whether the sentence imposed was manifestly excessive in the circumstances AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, applied R v Jayasuria [2004] QCA 238, considered R v Perry [2002] QCA 345, distinguished R v Shipman [2004] QCA 171, considered
COUNSEL:	C G Cassidy for the applicant G J Cummings for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent