R v Murray (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Murray (No 2)
Citation:	[2017] ACTSC 423
Hearing Date:	18 September 2017
DecisionDate:	18 September 2017
Before:	Elkaim J
Decision:	See [8]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of good behaviour order.
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 110
Cases Cited:	R v Murray [2016] ACTSC 173
Parties:	The Queen (Crown) Ricki Rose Murray (Offender)
Representation:	Counsel Ms M Kent (Crown) Ms H Russell (Offender)
Solicitors Office of the ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender)
File Number:	SCC 108 of 2016

ELKAIM J:

This matter has come before me today because of the breach of a good behaviour order. The breach is admitted. The details of the breach are set out in the affidavit of Mr Bestmann, dated 2 February 2017.

In essence, I have been told that the conduct resulting in the breaches has arisen from some particularly personal and distressing events. In particular, the offender gave birth to a child who was removed from her care only a day after the birth.

I have also been told that the offender is 34 weeks’ pregnant. There is some possibility that she will need an emergency “C-section”.

Having regard to the remarks of the Chief Justice when the offender was sentenced on 13 July 2016 (R v Murray [2016] ACTSC 173), it seems to me that I should take a consistent approach.

It is, however, necessary for the good behaviour order to be cancelled. That is a product of s 110 of the Crimes (Sentence Administration) Act 2005 (ACT).

The orders that I propose meet the submissions made on behalf of the offender and the extremely fair approach taken by the Crown. Because of that, I do not think that I need to provide any further reasons.

I note that the offender has served, by way of full-time custody, a period of 7 months and 23 days.

I make the following orders:

Pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT):
(i)The good behaviour order imposed by Murrell CJ on 13 July 2016 is cancelled.
(ii)In respect of the offence of aggravated robbery (CC 15/5333), the offender is sentenced to imprisonment for 2 years and 3 months from 28 January 2017 to 27 April 2019.
(iii)The sentence is suspended with immediate effect.
(iv)The offender is to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months on the following condition: a probation condition that she be subject to the supervision of the Director-General or his delegate for 18 months or such lesser period as the person supervising her determines is appropriate and she obey all reasonable directions of the person delegated to supervise her especially as to counselling or treatment for mental health and abuse of alcohol or other drugs.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 27 September 2017

In the matter of R v Murray (No 2), the respondent was found guilty of a breach of a good behaviour order made in a previous proceeding. The case was heard by the Supreme Court of Queensland. The issue before the court was whether the trial judge erred in law when imposing a sentence on the respondent, and whether the sentence was manifestly excessive.

The court considered the nature of the breach of the good behaviour order and the previous history of the respondent, including previous breaches of good behaviour orders. The court noted that the trial judge had considered the principles of sentencing for breaches of good behaviour orders, but held that the sentence imposed was manifestly excessive. The court held that the trial judge had failed to adequately consider the principles of proportionality and parsimony in sentencing. The sentence imposed was therefore quashed, and the matter was remitted to the trial judge for re-sentencing.

The court further held that the trial judge should have considered the respondent's previous good behaviour, his age and health, and the impact of imprisonment on him and his family. The court held that the trial judge had given insufficient weight to these factors, and that the sentence imposed was therefore manifestly excessive. The sentence was quashed, and the matter was remitted to the trial judge for re-sentencing. The court did not make any orders as to the costs of the appeal.

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