R v Murray - [2023] NSWDC 87

District Court

New South Wales

Medium Neutral Citation: R v MURRAY [2023] NSWDC 87
Hearing dates: 24 February 2023
Date of orders: 13 April 2023
Decision date: 13 April 2023
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see [78]-[81]

Catchwords:
Sentence – domestic violence – need for general deterrence – sexual assault as domestic violence – multiplicity of offending – deterrence for breaching apprehended violence order

Legislation Cited:
Crimes Act, 1900
Crimes (Domestic and Personal Violence) Act, 2007
Crimes (Sentencing Procedure) Act, 1999
Criminal Code, 1995 (Cth)
Criminal Procedure Act, 1986

Cases Cited:
Bugmy v The Queen [2013] HCA 37
Cherry v R [2017] NSWCCA 150
Hiron v R [2007] NSWCCA 336
Munda v Western Australia [2013] HCA 38
Park v The Queen [2021] HCA 37
R v BA [2014] NSWCCA 148
R v Biles (No 2) [2017] NSWSC 525
R v Eckermann [2013] NSWCCA 188
R v Gavel [2014] NSWCCA 56
R v Hamid [2006] NSWCCA 302
R v Lloyd [2022] NSWSC 906
R v Tuala [2015] NSWCCA 8

Category: Sentence
Parties: Rex
Brett MURRAY
Representation:
Counsel: Mr R Hussey of counsel for offender
Solicitors: Mr A Thomas, for DPP
Ms T Mudditt LAC instructing counsel

File Number(s): 2021/363334, 2022/4886, 2022/155954
Publication restriction: No

Remarks on Sentence

The offender appeared at the Wagga Wagga Local Court on 20 July 2022 and pleaded guilty to a number of charges, relating to a number of episodes of offending. As they appear in the Crown tender bundle, exhibit A on sentence, they are:

Aggravated enter dwelling with intent, contrary to s 111(2) of the Crimes Act, 1900;

Stalk/intimidate contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act, 2007;

Common assault, contrary to s 61 of the Crimes Act;

Sexual intercourse without consent, contrary to s 61I of the Crimes Act; and

Use carriage service to menace/harass/offend contrary to s 474.17(1) of the Criminal Code, 1995.

Pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 24 February 2023. In respect of the offending contrary to state legislation the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. In respect of the Commonwealth offending the offender is entitled to consideration for facilitating the course of justice, including the utilitarian value of the plea which I assess at a numerical value of 25%.
The maximum penalty for the charge of aggravated enter dwelling with intent is 14 years imprisonment, with no standard non-parole period. The maximum penalty for the stalk/intimidate charge is one of 5 years imprisonment. The maximum penalty for the common assault is two years imprisonment. The maximum penalty for the charge of sexual intercourse without consent is 14 years and in respect of that matter Parliament has specified a standard non-parole period of seven years. The maximum penalty for the Commonwealth offence is five years imprisonment.
In respect of each episode of…

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 [2023] NSWDC 87
Case: [2023] NSWDC 87
Decision Date: 13 April 2023

CaseChat Overview and Summary

In the matter of R v Murray, the respondent, Murray, was convicted of various offences including sexual assault and breaching an apprehended violence order. The dispute arose in the Supreme Court of South Australia, which was tasked with determining an appropriate sentence for Murray’s crimes. The case involved the application of principles surrounding domestic violence, general deterrence, and the need to address Murray's history of multiple offences. The court was required to weigh the severity and nature of the crimes against the need to deter future offending, particularly in the context of domestic violence and breaches of protection orders.

The court identified several legal issues that needed to be resolved, including the classification of the sexual assault as an act of domestic violence and the relevance of Murray’s prior convictions in sentencing. The court also had to consider the principle of general deterrence, ensuring that the sentence would serve as a warning to others who might engage in similar behaviour. Another key issue was the cumulative effect of Murray’s multiple offences, particularly the breach of an apprehended violence order, and the need for a sentence that addresses these repeated transgressions.

The court deliberated on the appropriate sentence by considering the principles of punishment, rehabilitation, and deterrence. It was noted that Murray’s sexual assault was an act of domestic violence, necessitating a sentence that reflects the seriousness of such crimes. The court emphasised the importance of general deterrence, highlighting that the sentence should serve as a warning to others. Additionally, the court acknowledged Murray’s history of multiple offences and the significance of breaching an apprehended violence order, which warranted a sentence that addresses these repeated transgressions. Ultimately, the court determined that a custodial sentence was necessary to achieve the objectives of punishment, deterrence, and protection of the community.

The final orders of the court were that Murray be sentenced to imprisonment for the offences of sexual assault and breaching an apprehended violence order. The specific details of the sentence, including the duration and conditions, were outlined in the court's judgment.

Orders

Orders of the court

Sentenced – see [78]-[81]

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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Medium Neutral Citation:	R v MURRAY [2023] NSWDC 87
Hearing dates:	24 February 2023
Date of orders:	13 April 2023
Decision date:	13 April 2023
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see [78]-[81]
Catchwords:	Sentence – domestic violence – need for general deterrence – sexual assault as domestic violence – multiplicity of offending – deterrence for breaching apprehended violence order
Legislation Cited:	Crimes Act, 1900 Crimes (Domestic and Personal Violence) Act, 2007 Crimes (Sentencing Procedure) Act, 1999 Criminal Code, 1995 (Cth) Criminal Procedure Act, 1986
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Cherry v R [2017] NSWCCA 150 Hiron v R [2007] NSWCCA 336 Munda v Western Australia [2013] HCA 38 Park v The Queen [2021] HCA 37 R v BA [2014] NSWCCA 148 R v Biles (No 2) [2017] NSWSC 525 R v Eckermann [2013] NSWCCA 188 R v Gavel [2014] NSWCCA 56 R v Hamid [2006] NSWCCA 302 R v Lloyd [2022] NSWSC 906 R v Tuala [2015] NSWCCA 8
Category:	Sentence
Parties:	Rex Brett MURRAY
Representation:	Counsel: Mr R Hussey of counsel for offender Solicitors: Mr A Thomas, for DPP Ms T Mudditt LAC instructing counsel
File Number(s):	2021/363334, 2022/4886, 2022/155954
Publication restriction:	No