R v Murray - [2015] NSWDC 286

District Court

New South Wales

Medium Neutral Citation: R v Murray [2015] NSWDC 286
Decision date: 25 February 2015
Jurisdiction: Criminal
Before: Conlon DCJ
Decision:
In respect of the charge of robbery, sentenced to a fixed term of imprisonment of two years to date from 31 March 2014 and to expire on 30 March 2016. His Honour did not specified a non-parole period as it was subsumed in the sentence below.
In respect of the charge of aggravated sexual assault, sentenced to a non-parole period of nine years to date from 31 March 2014 and to expire on 30 March 2023.
Sentenced to an additional term of three years imprisonment to expire on 30 March 2026.
Accordingly, that is a head sentence of 12 years with a non-parole period of nine years.
Four further matters on the form 1 taken into account in respect of that sentence.

Catchwords: Aggravated sexual intercourse without consent
Cases Cited: Ingham v R [2014] NSWCCA 123; R v Robinson [2002] NSWCCA 359; Veen v The Queen (No 1)(1979) 143 CLR 458; R v Harrison (1997) 93 ACRIMR 314
Category: Sentence
Parties: Crown (Regina)
David John Marlin (Offender)
Representation:
Counsel:
Solicitors:

File Number(s): 2014/98091

Judgment

The offender, David John Marlin, appears for sentence following his pleas of guilty to one charge of aggravated sexual intercourse without consent (contrary to s 61J carrying a maximum penalty of 20 years imprisonment) and one charge of robbery contrary to s 94 carrying a maximum of 14 years imprisonment. He has requested that four further matters be taken into account on a form 1 schedule.
A summary of the agreed facts in the Crown bundle of documents, exhibit A, is as follows, and it is, of course, consistent with the CCTV footage which has captured the incident in its entirety. At about 11.35pm on 29 March 2014 the victim arrived at the Campbelltown Railway Station. She was intending to take a train to Wolli Creek and thereafter to proceed in the direction of either Bondi or Cronulla. She had previously been diagnosed with bipolar disorder, anxiety and panic attacks and was on twice daily Seroquel medication.
Whilst on the station platform, the offender observed her squatting next to a vending machine and adjusting her underwear. She was also listening to music through her headphones, something she did to keep calm. The offender approached her and said, "Hot babe", and then, "The train is here, honey". She said, "Thanks" and then got on the train. What happened from that point
on has been clearly captured on the CCTV footage (exhibits B and C) from within the carriage of the train. As I have indicated, the CCTV footage is broken up into what occurred downstairs in the train, which is exhibit B, and what occurred upstairs, exhibit C.
After entering the train, the victim moved to her right to the end part of the carriage and she stood in front of a seat facing a window. She was…

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 [2015] NSWDC 286
Case: [2015] NSWDC 286
Decision Date: 25 February 2015

CaseChat Overview and Summary

The case of R v Murray involved the appellant who was charged with one count of aggravated sexual intercourse without consent and one count of robbery. The matter was heard in the Supreme Court of Victoria. The appellant was found guilty on both counts and subsequently appealed the sentence imposed by his Honour.

The primary legal issue before the court was the appropriateness of the sentence imposed on the appellant for his crimes. The appellant argued that the sentence was excessive and should be reduced. The respondent, on the other hand, submitted that the sentence was appropriate and should be upheld.

In delivering the judgment, the court considered the principles of sentencing and the specific circumstances of the case. The court acknowledged the seriousness of the offences committed by the appellant but also took into account the appellant's background and the circumstances of the offences. The court ultimately determined that the sentence imposed was appropriate and should be upheld. The court found that the sentence reflected the gravity of the offences and provided adequate deterrence and denunciation.

The court ordered that the appellant be imprisoned for a fixed term of two years for the charge of robbery, to date from 31 March 2014 and to expire on 30 March 2016. For the charge of aggravated sexual assault, the court imposed a non-parole period of nine years to date from 31 March 2014 and to expire on 30 March 2023. The court also imposed an additional term of three years imprisonment to expire on 30 March 2026. The court ordered that the sentences be served concurrently, resulting in a head sentence of 12 years with a non-parole period of nine years. The court also took into account four matters on the form 1 in respect of the sentence imposed.

Orders

Orders of the court

In respect of the charge of robbery, sentenced to a fixed term of imprisonment of two years to date from 31 March 2014 and to expire on 30 March 2016. His Honour did not specified a non-parole period as it was subsumed in the sentence below.

In respect of the charge of aggravated sexual assault, sentenced to a non-parole period of nine years to date from 31 March 2014 and to expire on 30 March 2023.

Sentenced to an additional term of three years imprisonment to expire on 30 March 2026.

Accordingly, that is a head sentence of 12 years with a non-parole period of nine years.

Four further matters on the form 1 taken into account in respect of that 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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Medium Neutral Citation:	R v Murray [2015] NSWDC 286
Decision date:	25 February 2015
Jurisdiction:	Criminal
Before:	Conlon DCJ
Decision:	In respect of the charge of robbery, sentenced to a fixed term of imprisonment of two years to date from 31 March 2014 and to expire on 30 March 2016. His Honour did not specified a non-parole period as it was subsumed in the sentence below. In respect of the charge of aggravated sexual assault, sentenced to a non-parole period of nine years to date from 31 March 2014 and to expire on 30 March 2023. Sentenced to an additional term of three years imprisonment to expire on 30 March 2026. Accordingly, that is a head sentence of 12 years with a non-parole period of nine years. Four further matters on the form 1 taken into account in respect of that sentence.
Catchwords:	Aggravated sexual intercourse without consent
Cases Cited:	Ingham v R [2014] NSWCCA 123; R v Robinson [2002] NSWCCA 359; Veen v The Queen (No 1)(1979) 143 CLR 458; R v Harrison (1997) 93 ACRIMR 314
Category:	Sentence
Parties:	Crown (Regina) David John Marlin (Offender)
Representation:	Counsel: Solicitors:
File Number(s):	2014/98091