Regina v Murphy - [2006] NSWCCA 417

CITATION: Regina v Murphy [2006] NSWCCA 417

HEARING DATE(S): 20/11/2006; 24/11/2006

JUDGMENT DATE:
21 December 2006

JUDGMENT OF: James J at 1; Hidden J at 2; Hislop J at 28

DECISION: Crown appeal dismissed. Ms Murphy's application for leave to appeal refused.

CATCHWORDS: CRIMINAL LAW: - Crown appeal - application for leave to appeal by offender - ongoing supply of amphetamine - matters on form1 - 2 year sentence, NPP 15months - suspended but bond later revoked - exceptional case - whether sentence manifestly inadequate - whether conditions of bond appropriate

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999 (ss12,99)

CASES CITED: The Queen v Osenkowski (1982) 30 SASR 212
R v Henry (1999) 46 NSWLR 346

PARTIES: Regina (applicant/respondent)
Kathryn Rose Murphy (respondent/applicant)

FILE NUMBER(S): CCA 2006/2189

COUNSEL: W Dawe QC (Crown)
S J Odgers SC (respondent/applicant)

SOLICITORS: Solicitor for Public Prosecutions (Crown)
Legal Aid Commission (respondent/applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/71/0026

LOWER COURT JUDICIAL OFFICER: Norrish QC DCJ

LOWER COURT DATE OF DECISION: 25/08/2006

2006 / 2189

JAMES J
HIDDEN J
HISLOP J
Thursday 21 December 2006

Regina v Kathryn Rose Murphy

Kathryn Rose Murphy v Regina

Judgment

1 JAMES J: I agree with Hidden J.

2 HIDDEN J: This is a sad case, with a somewhat unusual history. Kathryn Rose Murphy pleaded guilty in the District Court at Wagga to a charge of ongoing supply of the prohibited drug, amphetamine, an offence under s25A of the Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of twenty years imprisonment. She asked that nine further charges, including two charges of ongoing supply of prohibited drugs, be taken into account on a Form 1.

3 On 25 August 2006 she was sentenced to imprisonment for two years with a non-parole period of fifteen months, but the sentence was suspended upon her entering into a bond to be of good behaviour and to observe certain conditions. The Director of Public Prosecutions appealed against that sentence on the ground that it is manifestly inadequate, and that appeal was listed for hearing on 20 November 2006.

4 In the meantime, she was found to be in breach of the bond which had been imposed in several respects. On 17 November 2006 the learned sentencing judge revoked the bond, so that she was required to serve the sentence the execution of which had been suspended. In the light of that development, it was foreshadowed in this Court on 20 November 2006 that she might apply for leave to appeal against the sentence originally imposed, and the proceedings were adjourned to 24 November 2006.

5 On that day the Crown prosecutor confirmed that the Director’s appeal was to proceed, notwithstanding that Ms Murphy had by then been committed to custody to serve the sentence which had been suspended. Equally, Mr Odgers SC, for Ms Murphy, confirmed that she wished to pursue an application for leave to appeal against the suspended sentence…

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 Regina v Murphy

Details

AGLC: Regina v Murphy [2006] NSWCCA 417
Case: [2006] NSWCCA 417
Decision Date: 21 December 2006

CaseChat Overview and Summary

In Regina v Murphy, the respondent was convicted of the ongoing supply of amphetamine. The court heard an appeal by the Crown in relation to the sentence imposed. The Crown sought leave to appeal the sentence imposed on the respondent, contending that it was manifestly inadequate. The respondent had previously been sentenced to two years imprisonment, which was suspended, with conditions, for a period of three years. The respondent later breached the conditions of the bond, leading to the revocation of the bond and the imposition of the original sentence. The Crown argued that the sentence was manifestly inadequate and sought leave to appeal.
The court had to decide whether the sentence imposed was manifestly inadequate and whether the conditions of the bond were appropriate. The court considered the principles of sentencing, the nature of the offence, and the need to deter the respondent and others from engaging in similar criminal conduct. The court also had to consider the proportionality of the sentence and whether the conditions of the bond were appropriate to the circumstances of the case.
The court found that the sentence was not manifestly inadequate and dismissed the Crown's application for leave to appeal. The court considered the nature of the offence, the respondent's criminal history, and the need to deter the respondent and others from engaging in similar criminal conduct. The court found that the sentence imposed was appropriate and proportionate to the offence committed. The court also found that the conditions of the bond were appropriate to the circumstances of the case and that the respondent had breached those conditions, leading to the revocation of the bond and the imposition of the original sentence. The court dismissed the Crown's application for leave to appeal and upheld the sentence imposed by the original sentencing court.

Orders