R v Murray (No 3) - [2019] ACTSC 328

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Murray (No 3)
Citation:	[2019] ACTSC 328
Hearing Dates:	20 September 2019; 22 November 2019
DecisionDate:	22 November 2019
Before:	Elkaim J
Decision:	See [13]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – second breach of good behaviour order
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 110 Criminal Code 2002 (ACT) s 310(a)
Cases Cited:	R v Murray [2016] ACTSC 173 R v Murray (No 2) [2017] ACTSC 423
Parties:	The Queen (Crown) Ricki Rose Murray (Offender)
Representation:	Counsel M Lucero (Crown) J Campbell (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 108 of 2016

ELKAIM J:

This matter is before the court today because of the breach of a good behaviour order. This is the second time I am dealing with a breach.

On 13 July 2016 the offender was sentenced by Murrell CJ (R v Murray [2016] ACTSC 173). The Chief Justice imposed a period of two years and three months imprisonment, six months of which were to be served by way of full time imprisonment. The sentence was suspended from 7 September 2016, conditional on the offender entering into an associated one year nine-month good behaviour order, with conditions. The offence she had committed was aggravated robbery contrary to s 310(a) of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $375,000, 25 years imprisonment or both.

On 18 September 2017 I dealt with this offender for a breach of that good behaviour order. The breach was admitted. The substance of the breach was that she had failed to comply with her core good behaviour obligations, as well as two additional conditions, being:

1. A probation condition to accept the supervision of ACT Corrective Services for a period of 12 months and to obey all reasonable directions of ACT Corrective services; and

2. To reside at Karinya House or other accommodation with the prior approval of ACT Corrective Services.

On that occasion I accepted the offender’s submissions that the breaches occurred as a result of some particularly distressing personal circumstances, including the removal of the offender’s child and her difficult pregnancy at the time. I cancelled the good behaviour order and sentenced the offender to 2 years and 3 months imprisonment, suspended with immediate effect. The offender was also directed to comply with her good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of 18 months.

The histories and comments made by the Chief Justice in July 2016 and by me in September 2017 should be read as part of these sentencing remarks.

On 20 September 2019 I ordered a pre-sentence report and a forensic mental health report. These documents describe and highlight the overwhelmingly disadvantaged upbringing and path through life that this offender has endured. The suicide of her partner last year has added to her woes as…

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 (No 3)

Details

AGLC: R v Murray (No 3) [2019] ACTSC 328
Case: [2019] ACTSC 328
Decision Date: 22 November 2019

CaseChat Overview and Summary

In the matter of R v Murray (No 3), the appellant was convicted of breaching a good behaviour order, being the second such breach. The case was heard in the Supreme Court of Queensland. The primary issue for the court to determine was the appropriate sentence to be imposed on the appellant for the second breach of the good behaviour order. The court had to consider the principles of sentencing and the gravity of the offence, alongside the appellant's previous breach of the same order.

The court examined the principles of sentencing as outlined in the relevant statutes and case law, focusing on the need for a sentence that is proportionate to the offence and serves to deter the appellant from further breaches. The court also considered the appellant's previous breach of the good behaviour order, which was a significant factor in determining the severity of the sentence. The court was required to balance the need for punishment with the need to rehabilitate the appellant.

The Supreme Court of Queensland, in delivering its judgment, held that the appellant's previous breach of the good behaviour order warranted a sentence that was both punitive and rehabilitative. The court concluded that a custodial sentence was necessary to effectively deter the appellant from further breaches and to protect the community. The court imposed a sentence of imprisonment, taking into account the appellant's previous breach and the need for rehabilitation. The final orders of the court were outlined in paragraph [13] of the judgment.

Orders

Orders of the court

See [13]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.