R v Murray - [2005] QCA 188

SUPREME COURT OF QUEENSLAND

CITATION:

R v Murray [2005] QCA 188

PARTIES:

R
v
MURRAY, Rohan Lee
(applicant/appellant)

FILE NO/S:

CA No 43 of 2005
DC No 309 of 2004
DC No 412 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

3 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2005

JUDGES:

McPherson and Keane JJA and Mullins J
Judgment of the Court

ORDER:

1.    Application for leave to appeal against sentence granted

2.    Appeal allowed

3.    Set aside the sentence imposed in the District Court at Ipswich on 21 February 2005 for the offence of indecent assault

4. In lieu of that sentence impose the sentence of 15 months’ imprisonment and pursuant to s 161 of the Penalties and Sentences Act 1992 (Qld), declare that 240 days spent in pre-sentence custody from 27 June 2004 to 21 February 2005 be deemed time already served under the sentence

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CIRCUMSTANCES OF OFFENCE – where applicant convicted on own pleas of guilty to one count of indecent assault, one count of stealing and two street offences – where sentenced to two and a half years imprisonment with a recommendation for post-prison community-based release after serving nine months on count of indecent assault, 12 months imprisonment on count of stealing and convicted but not further punished with respect to street offences – where applicant seeks leave to appeal against sentence imposed on count of indecent assault – where offence involved the indecent assault of a woman in a public place – where applicant has significant criminal record – where offences committed in breach of a probation order and a three month suspended sentence – whether sentence manifestly excessive

R v AQ [2003] QCA 479; CA No 264 of 2003, 3 November 2003, cited
R v Brockfield [1993] QCA 348; CA No 229 of 1993, 21 September 1993, distinguished
R v Harper [2002] QCA 107; CA No 17 of 2002, 19 March 2002, cited
R v J [2002] QCA 48; CA No 3 of 2002, 22 February 2002, cited

COUNSEL:

A W Moynihan for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

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

THE COURT: On 21 February 2005, the applicant pleaded guilty to one count of stealing, and one count of indecent assault. He also pleaded guilty to committing a public nuisance and consuming liquor in public. On the stealing charge he was sentenced to 12 months’ imprisonment, and pre-sentence custody of 366 days from 18 February 2004 to 18 June 2004 and from 27 June 2004 to 21 February 2005 was declared as time served. On the indecent assault charge, he was sentenced to two and a half years’ imprisonment with a recommendation for consideration for post-prison community based release after serving nine months. Pre-sentence custody of 240 days…

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 [2005] QCA 188
Case: [2005] QCA 188
Decision Date: 3 June 2005

CaseChat Overview and Summary

The case of R v Murray involved the applicant, Murray, who was convicted on his own pleas of guilty to one count of indecent assault, one count of stealing, and two street offences. He was sentenced in the District Court at Ipswich to two and a half years imprisonment, with a recommendation for post-prison community-based release after serving nine months for the indecent assault, 12 months imprisonment for the stealing offence, and no further punishment for the street offences. Murray sought leave to appeal against the sentence imposed on the count of indecent assault, arguing that it was manifestly excessive.

The court had to decide whether the sentence for the indecent assault was manifestly excessive, considering the circumstances of the offence and Murray's criminal history. The court found that the sentence was manifestly excessive and granted leave to appeal against the sentence for the indecent assault. The appeal was allowed, and the sentence was set aside. In lieu of the original sentence, the court imposed a sentence of 15 months’ imprisonment and declared that 240 days spent in pre-sentence custody be deemed time already served under the sentence.

The final orders of the court were to grant the application for leave to appeal against the sentence, allow the appeal, set aside the original sentence for the indecent assault, and impose a new sentence of 15 months’ imprisonment with credit for 240 days already served. This decision highlights the importance of ensuring that sentences are proportionate to the offence and the offender's circumstances, and that appeals are considered when there is a possibility of manifest excessiveness.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Set aside the sentence imposed in the District Court at Ipswich on 21 February 2005 for the offence of indecent assault

4. In lieu of that sentence impose the sentence of 15 months’ imprisonment and pursuant to s 161 of the Penalties and Sentences Act 1992 (Qld), declare that 240 days spent in pre-sentence custody from 27 June 2004 to 21 February 2005 be deemed time already served under the sentence

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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CITATION:	R v Murray [2005] QCA 188
PARTIES:	R v MURRAY, Rohan Lee (applicant/appellant)
FILE NO/S:	CA No 43 of 2005 DC No 309 of 2004 DC No 412 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	3 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	1 June 2005
JUDGES:	McPherson and Keane JJA and Mullins J Judgment of the Court
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Set aside the sentence imposed in the District Court at Ipswich on 21 February 2005 for the offence of indecent assault 4. In lieu of that sentence impose the sentence of 15 months’ imprisonment and pursuant to s 161 of the Penalties and Sentences Act 1992 (Qld), declare that 240 days spent in pre-sentence custody from 27 June 2004 to 21 February 2005 be deemed time already served under the sentence
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CIRCUMSTANCES OF OFFENCE – where applicant convicted on own pleas of guilty to one count of indecent assault, one count of stealing and two street offences – where sentenced to two and a half years imprisonment with a recommendation for post-prison community-based release after serving nine months on count of indecent assault, 12 months imprisonment on count of stealing and convicted but not further punished with respect to street offences – where applicant seeks leave to appeal against sentence imposed on count of indecent assault – where offence involved the indecent assault of a woman in a public place – where applicant has significant criminal record – where offences committed in breach of a probation order and a three month suspended sentence – whether sentence manifestly excessive R v AQ [2003] QCA 479; CA No 264 of 2003, 3 November 2003, cited R v Brockfield [1993] QCA 348; CA No 229 of 1993, 21 September 1993, distinguished R v Harper [2002] QCA 107; CA No 17 of 2002, 19 March 2002, cited R v J [2002] QCA 48; CA No 3 of 2002, 22 February 2002, cited
COUNSEL:	A W Moynihan for the applicant/appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent