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Court of Criminal Appeal 23 July 2003

R v Murray

[2003] NSWCCA 209

Assault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE JUDGMENT AND PUNISHMENT APPLICATION OF PEARCE V THE QUEEN SENTENCE MANIFESTLY EXCESSIVE.

Citation: R v Murray [2003] NSWCCA 209
Court: NSW Court of Criminal Appeal
Date: 23 July 2003
Judge(s): Tobias JA, James J, Howie J

Background

The applicant pleaded guilty in the District Court to break, enter and steal in circumstances of aggravation (entering a dwelling knowing persons were present) and malicious wounding. Both offences arose on the same night in February 2002, when the applicant broke into a neighbour's home, stole a television set, and then attacked the homeowner with a length of pipe, causing a facial laceration and a fracture of the eye socket. Five further matters were listed on a Form 1 to be taken into account on sentencing for the first count.

Judge Morgan sentenced the applicant to a fixed term of two years for the malicious wounding, followed by four years and six months (with a two-year non-parole period) for the break, enter and steal. The total effective sentence was six years and six months, with a minimum custodial period of four years.

The applicant was 20 years old at the time of sentencing, was serving his first adult prison term, and was of Aboriginal descent. He had a history of alcohol abuse and suffered several physical disabilities, including blindness in one eye and deafness in one ear.

  • Whether the sentencing judge erred in her application of the totality principle and the principles in Pearce v The Queen when constructing the cumulative sentences.
  • Whether the sentencing judge failed to give adequate weight to the applicant's background as an Aboriginal person, as required by the principles in R v Fernando.
  • Whether the sentences imposed were manifestly excessive having regard to the objective seriousness of the offences and the applicant's subjective circumstances.

Decision

Howie J, with whom Tobias JA and James J agreed, found that the sentencing judge's pronouncement of the sentence for the break, enter and steal offence revealed error. The court considered that an undiscounted sentence of six years for that offence was manifestly excessive, particularly because it was to be served cumulatively on the malicious wounding sentence and given the significant subjective factors in the applicant's favour.

The court placed particular emphasis on the applicant's youth, his status as an Aboriginal man serving his first adult sentence, and the need for rehabilitation. Howie J observed that the break, enter and steal offence, while serious and carrying a maximum of 20 years, fell toward the lower end of criminality for that class of offence on the facts presented.

The court also received fresh evidence: a psychologist's report recommending follow-up counselling, residential placement for alcohol issues, medical reviews, and anger management. Inmate assessment reports confirmed the applicant was engaging constructively with programs in custody. Howie J found these matters supported a finding of special circumstances, warranting a longer parole period to allow for intensive rehabilitation on release.

The Court of Criminal Appeal granted the application and allowed the appeal, substituting a reduced sentence of three years for the first count with a non-parole period of only six months, reflecting both the error in the original sentence and the applicant's rehabilitation prospects.

Orders Made

  • The application was granted and the appeal allowed in respect of the sentence for the offence on the first count in the indictment.
  • The original sentence on that count was quashed.
  • In lieu, the applicant was sentenced to three years imprisonment commencing 24 February 2004, with a non-parole period of six months expiring 23 August 2004, on which date the applicant was to be released to parole.
  • A condition of parole required the applicant to place himself under the supervision of the adult probation service.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a cumulative sentence is imposed following a prior fixed term, the totality principle requires close scrutiny of the combined effect on the overall sentence, consistent with the approach in Pearce v The Queen.
  • An offence of break, enter and steal in circumstances of aggravation is not automatically treated as mid-range or above simply because the maximum penalty is 20 years; the particular facts may place it toward the lower end of that range.
  • The Fernando principles require a sentencing court to give genuine weight to an offender's Aboriginal background and its connection to the circumstances of offending, particularly where alcohol abuse is a relevant factor.
  • Special circumstances justifying a departure from the standard ratio between non-parole period and head sentence may be established where an offender demonstrates strong rehabilitation prospects and will require intensive community support on release.
  • Fresh evidence of psychological assessment and positive custodial conduct reports can be received by an appellate court where a re-exercise of the sentencing discretion is required.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(1)(a) and (b), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Fernando (1992) 76 A Crim R 58
- Hammoud (2000) 118 A Crim R 66
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518