R v Murtaza - [2001] NSWCCA 336

CITATION: R v Murtaza [2001] NSWCCA 336 revised - 5/10/2001

FILE NUMBER(S): CCA 60198/01

HEARING DATE(S): 4/9/01

JUDGMENT DATE:
4 September 2001

PARTIES :

Regina
Shahbaz Murtaza

JUDGMENT OF: Hodgson JA at 1, 30, 32; Dowd J at 31; Carruthers AJ at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0927

LOWER COURT JUDICIAL
OFFICER : Davidson DCJ

COUNSEL : W G Dawe QC (Crown)
K R Newell (Respondent)

SOLICITORS: S E O'Connor
F McDonald

CATCHWORDS: Sentencing - Crown appeal against inadequacy of sentence - larceny by a servant - balance of subjective and objective circumstances - whether too much weight given to subjective circumstances.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Thomson and Haulton (2000) 49 NSWLR 383

DECISION: Appeal allowed. Judgment of Davidson DCJ on 30.3.01 set aside. New sentence: full time custody for a fixed period of 6 months, to begin on 4.9.01 and ending 3.3.02.

- 1 -IN THE COURT OF

CRIMINAL APPEAL

60198/01

HODGSON JA

DOWD J

CARRUTHERS AJ

Tuesday 4 September 2001

Regina v Murtaza

JUDGMENT

1 HODGSON JA: I will ask Carruthers AJ to deliver the first judgment.

2 CARRUTHERS AJ: This is an appeal by the Director of Public Prosecutions against a sentence imposed by his Honour Judge Davidson QC at the Sydney District Court on 30 March 2001 when the respondent, Shahbaz Murtaza, appeared for sentence on a charge of larceny as a clerk pursuant to s 156 of the Crimes Act 1900, to which charge he had earlier pleaded guilty.

3 Pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, his Honour made an order directing the respondent to enter into a good behaviour bond for a period of 3 years, subject to the respondent placing himself under the supervision and guidance of the Probation and Parole Service and a further condition that he undergo gambling and drug and alcohol counselling.

4 The notice of appeal was signed by the Director on 6 April and served on the respondent on 7 April 2001. The appeal originally came before this Court on 16 and 20 July. It was adjourned on the latter day on the application of the respondent by reason of his failure to take appropriate action to obtain legal aid. He now has the benefit of legal aid and is represented by Mr Newell of counsel.

5 The respondent was arrested on 30 April 1999. He was charged with stealing from his employer contrary to s 156, an offence for which the maximum penalty is 10 years imprisonment. He was released on unconditional bail.

6 On 23 November 2000, a year and 7 months after being apprehended and charged, the respondent was committed for trial.

7 On 8 December 2000 the respondent was arraigned in the District Court. He pleaded guilty to the charge on that date. Thus, the plea was not entered at the earliest opportunity, but…

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 Murtaza

Details

AGLC: R v Murtaza [2001] NSWCCA 336
Case: [2001] NSWCCA 336
Decision Date: 4 September 2001

CaseChat Overview and Summary

The appeal in R v Murtaza involved the respondent, Murtaza, who was convicted of multiple instances of theft from his employer. The Crown appealed against the sentence imposed by the trial judge, arguing that it was manifestly inadequate. The case was heard in the Court of Appeal, which was tasked with determining whether the sentence was appropriate in light of the offence's nature and circumstances.

The primary legal issue before the Court was whether the trial judge had appropriately balanced the subjective and objective circumstances of the case when imposing sentence. The Crown contended that the trial judge had given undue weight to the subjective circumstances of Murtaza's personal background, such as his family situation and previous good character, and had not sufficiently considered the objective circumstances, which included the seriousness of the offence and the need for general deterrence. The Court had to assess whether the sentence reflected an accurate understanding of the relevant sentencing principles and whether it was proportionate to the offence.

The Court of Appeal found that the trial judge had indeed placed too much emphasis on the subjective circumstances of Murtaza's case, thereby undervaluing the objective factors. In doing so, the Court highlighted that while personal background is relevant, it cannot overshadow the gravity of the offence and the need for appropriate punishment and deterrence. The Court concluded that the sentence was manifestly inadequate and remitted the matter to the trial judge for re-sentencing, ensuring that both subjective and objective factors were appropriately balanced. This decision underscores the importance of a balanced approach to sentencing, where both personal circumstances and the nature of the offence are given due consideration.

Orders