Citation: Regina v Eric Leonard Murray [2000] NSWCCA 159
Court: New South Wales Court of Criminal Appeal
Date: 3 May 2000
Judge(s): Hulme J; Carruthers AJ
Background
The applicant, a 68-year-old man in poor health, pleaded guilty in the Sydney District Court to two counts of receiving stolen goods and two counts of possessing shortened firearms. The receiving charges related to jewellery later identified as proceeds of two separate armed home invasions. Police executing a search warrant at the applicant's home also found two loaded, shortened pump-action shotguns hidden beneath a wardrobe drawer, accompanied by a balaclava and shotgun shells.
McGuire DCJ sentenced the applicant to cumulative minimum terms totalling three years' imprisonment, followed by an additional term of 18 months. The applicant sought leave to appeal, contending the sentences were excessive given his age, serious medical conditions, lengthy crime-free period, and the fact that comparable matters are often dealt with in the Local Court.
Legal Issues
- Whether the sentences imposed by the District Court were outside the proper exercise of the sentencing discretion, having regard to the applicant's age, poor health, and the fact that such offences could have been dealt with summarily in the Local Court
- The weight to be given to subjective circumstances, including age and ill-health, against the objective seriousness of the offences
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the application. Carruthers AJ, delivering the primary judgment, accepted that the applicant had a strong subjective case. He had no prior convictions for 25 years, these were his first indictable offences, and his personal circumstances, including a prior heart attack, circulatory and gastrointestinal disease, carotid artery occlusion, severe depression, and diminished cognitive function, were serious matters.
However, Carruthers AJ held that the objective seriousness of both the receiving and the firearms possession offences overtook those subjective considerations. The presence of two loaded, shortened shotguns alongside a balaclava pointed to a high degree of criminal purpose. Statistical evidence showing that the sentences fell in the higher range for such offences did not, in context, render them excessive. The Court noted that where deterrence is required, subjective circumstances must sometimes yield.
Carruthers AJ observed that the Sentencing Act 1989 (s 25A) contained provisions allowing correctional authorities to take the applicant's health into account as an exceptional and extenuating circumstance, which provided some comfort on that aspect. Hulme J agreed with the orders but expressly declined to rely on that point, adding that absent the applicant's age, he would have considered the sentences "woefully inadequate" given the maximum penalty of ten years for possession of a single shortened firearm and the circumstances of discovery.
Orders Made
- Application for leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that strong subjective circumstances, including advanced age and serious ill-health, do not automatically reduce a sentence where the objective gravity of the offending is high.
- The fact that charges could have been dealt with in the Local Court does not, of itself, establish that a District Court sentence is excessive.
- Where deterrence is an appropriate sentencing consideration, courts have repeatedly affirmed that subjective factors must sometimes yield to that objective.
- Hulme J's remarks, while not forming a majority rationale, signal a view that the courts and legislature may need to impose substantially higher sentences for possession of loaded, shortened firearms if community protection is to be taken seriously.
- Under s 25A of the Sentencing Act 1989, correctional authorities retain a mechanism to address a prisoner's deteriorating health as an exceptional and extenuating circumstance, a consideration the Court acknowledged though did not unanimously rely upon.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 188
- Firearms Act 1996 (NSW), s 62(1)(b)
- Sentencing Act 1989 (NSW), s 25A
Cases:
- Thurgar (1990) 51 A Crim R 109