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R v Murrell

R v Murrell

Case [2012] NSWCCA 90 9 May 2012

Criminal Liability

Sentencing

Robbery

Aggravated Break and Enter

Intimidation

Armed with an Offensive Weapon

Non-Parole Period

Partial Concurrency

Manifestly Inadequate Sentence

Criminal Law

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This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: R v Murrell

Medium Neutral Citation: [2012] NSWCCA 90

Hearing Date(s): 10 October 2011

Decision Date: 09 May 2012

Jurisdiction:

Before:
McClellan CJ at CL
Latham J
Harrison J

Decision:
Appeal dismissed

Catchwords:
CRIMINAL LAW - Crown appeal - sentencing - robbery in company (s 97(1) Crimes Act 1900 (NSW)) - aggravated break and enter and intimidate whilst armed with an offensive weapon (s 112(2) of the Crimes Act 1900 (NSW)) - whether sentence adequately reflects objective seriousness - whether non-parole period reflects objective gravity of s 112 (2) offence - whether an excessive degree of partial concurrency was applied - whether each sentence and aggregate sentence were manifestly inadequate - the sentence for the break and enter offence fails to adequately reflect the objective gravity of offence even when taking into consideration the relevant subjective factors - the accumulation of the sentences falls considerably short of the total criminality - residual discretion exercised - appeal dismissed.

Legislation Cited:
Crimes Act (1900)
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Muldrock v the Queen [2011] HCA 39
Muldrock v The Queen [2005] HCA ; 228 CLR 357
R v Koloamatangi [2011] NSWCCA 288
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Zreika v The Queen [2012] NSWCCA 44
R v Henry & Ors, [1999] NSWCCA 111
R v MAK & MSK [2006] NSWCCA 381
Green v The Queen ; Quinn v The Queen [2011] HCA 49

Texts Cited:

Category: Principal judgment

Parties:
Regina - (Crown Applicant)
Aaron Leigh Murrell - (Respondent)

Representation

- Counsel:
Counsel
J Girdham (Crown Applicant)
C Smith - (Respondent)

- Solicitors:
Solicitors
S Kavanagh - (Solicitor for Public Prosecutions) - (Crown Applicant)
B Sandland - (Legal Aid Commission) (Respondent)

File number(s):
2009/51025
2010/222921

Decision Under Appeal

- Court / Tribunal:

- Before: ML Sides QC DCJ

- Date of Decision: 25 April 2011

- Citation:

- Court File Number(s) 2009/510252010/222921

Publication Restriction:

JUDGMENT

McCLELLAN CJ at CL : I agree with Latham J.
LATHAM J : The Director of Public Prosecutions appeals against the sentences imposed on the respondent, Aaron Leigh Murrell, on 25 February 2011, in respect of a robbery in company offence (s 97(1) of the Crimes Act 1900) and a count of aggravated break and enter and intimidate whilst armed with an offensive weapon (s 112(2) of the Crimes Act (1900). The former offence carries a maximum penalty of 20 years imprisonment. The latter offence carries a maximum penalty of 20 years imprisonment and carries a standard non parole period of 5 years.
There were two further offences taken into account on a Form 1 when the respondent was sentenced for the aggravated break and enter. Those two charges consisted of possessing a prohibited drug (a small quantity of methylamphetamine) and possessing equipment to administer a prohibited drug, being a "crack pipe".
The respondent…

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 Murrell

Details

AGLC: R v Murrell [2012] NSWCCA 90
Case: [2012] NSWCCA 90
Decision Date: 09 May 2012

CaseChat Overview and Summary

The case of R v Murrell involved an appeal by the Crown against the sentences imposed on the respondent, Murrell, who had been found guilty of robbery in company and aggravated break and enter and intimidate whilst armed with an offensive weapon. The sentences were handed down by the NSW Supreme Court, presided over by Hamill J. The Crown appealed on the basis that the sentences did not adequately reflect the objective seriousness of the crimes and questioned the application of partial concurrency, resulting in what was argued to be an excessive reduction in the overall sentence.

The legal issues before the court centred on whether the sentences imposed were proportionate to the objective gravity of the offences committed, particularly focusing on the break and enter offence. Additionally, the court considered whether the non-parole period for the break and enter offence adequately reflected its gravity, and whether the degree of partial concurrency applied was appropriate. The Crown also challenged whether the aggregate sentence was manifestly inadequate, arguing that it failed to sufficiently account for the total criminality involved in the offences.

The court addressed these issues by examining the principles of sentencing and the relevant case law. It found that while the sentences for individual offences were within the range of appropriate penalties, the sentence for the break and enter offence did not adequately reflect its objective gravity, particularly when considering the respondent's subjective factors. The court further determined that the aggregate sentence fell considerably short of the total criminality involved. As a result, the court exercised its residual discretion and increased the sentences, dismissing the appeal. The increased sentences were deemed to better reflect the objective seriousness of the crimes and the total criminality involved.

Orders