Citation: Murphy v Regina [2005] NSWCCA 412
Court: NSW Court of Criminal Appeal
Date: 2 December 2005
Judge(s): Studdert J, Whealy J, Howie J
Background
The appellant pleaded guilty in the District Court to one count of conspiring to commit an armed robbery with an offensive weapon. The conspiracy involved a plan to rob Chubb Security staff during a cash-in-transit operation in south-western Sydney. Her two co-conspirators were the principal organiser, who had access to firearms and intelligence about the Chubb movements, and her de facto partner, who was to serve as the principal's right-hand man and had participated in on-the-ground surveillance.
The appellant's own role was found by the sentencing judge to be significantly lesser than that of either co-conspirator. She had accompanied her de facto partner on surveillance runs, assisted with errands connected to the conspiracy, and liaised with the principal when her partner was unavailable. She was not expected to participate directly in any robbery.
The appellant was sentenced by Murrell DCJ on 9 September 2004 to four years and three months imprisonment with a non-parole period of three years. The co-conspirators were not sentenced until 4 March 2005 before a different judge, and they received sentences that, on their face, appeared more lenient than the appellant's despite their greater culpability.
Legal Issues
- Whether the disparity between the appellant's sentence and those later imposed on her co-conspirators gave rise to a legitimate sense of grievance, warranting appellate intervention under the principle in Lowe v The Queen (1984) 154 CLR 606.
- Whether the sentencing judge erred in her treatment of the appellant's prior criminal history as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act.
Decision
On the second ground, the Court was not persuaded that Murrell DCJ fell into error. The sentencing judge had referred to prior convictions as an aggravating feature under s 21A, which the Court accepted could be read consistently with the common law principle that a prior record does not aggravate the offence itself but may deprive an offender of leniency or justify greater weight being given to retribution and deterrence. No error of law was established on this ground.
On the disparity ground, the Court found the appellant had a legitimate and objective sense of grievance. The starting point for both her sentence and that of the principal co-conspirator was set at five and a half years, despite the sentencing judge's express finding that the appellant's role was "very significantly less" than that of her de facto partner and "vastly less" than that of the principal. The co-conspirators' starting points were only marginally higher than the appellant's, which did not reflect the assessed differences in culpability.
The Court intervened and re-sentenced the appellant. It selected a starting point of four and a half years to better reflect her lesser role, then applied a discount for her early guilty plea (in the range of 20 to 25% as conceded by the Crown), arriving at a head sentence of three and a half years. The Court also found special circumstances justifying a longer parole period, having regard to the original findings and confirmatory material regarding the appellant's progress in custody, including her participation in a methadone reduction programme and a mother-and-children programme at Emu Plains.
Orders Made
- Leave to appeal granted.
- Appeal allowed; the original sentence quashed.
- Appellant re-sentenced to three and a half years imprisonment, commencing 21 November 2003.
- Non-parole period of two years and three months.
- Balance of term: fifteen months.
- Appellant eligible for parole on 20 February 2006.
Key Takeaways
- A genuine and legitimate sense of grievance arising from sentencing disparity between co-offenders can justify appellate intervention, even where the co-offenders were sentenced later and by a different judge.
- In upholding the disparity ground, the Court of Criminal Appeal emphasised that the starting point for a sentence must genuinely reflect the relative culpability of each offender, not merely be nominally differentiated.
- Where a sentencing judge expressly finds that one co-offender's role was "very significantly less" than another's, that finding must be given meaningful effect in the arithmetic of the sentence, not acknowledged and then largely discounted.
- Under s 21A of the Crimes (Sentencing Procedure) Act, reference to prior convictions as an aggravating feature is not necessarily erroneous, provided it is applied consistently with the common law principle that a prior record may deprive an offender of leniency rather than increasing the objective gravity of the offence.
- Post-sentence rehabilitation material, including evidence of progress in drug treatment and custodial programmes, is capable of informing the re-sentencing exercise on appeal.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act (NSW), s 21A
Cases
- Lowe v The Queen (1984) 154 CLR 606
- Regina v Wickham [2004] NSWCCA 193
- Regina v Shankley [2003] NSWCCA 253
- Regina v Johnson [2004] NSWCCA 76
- R v Atonio [2005] NSWCCA 200
- Regina v Steel (unreported, NSWCCA, 17 April 1997)
- Parr v Diamond (unreported, NSWCCA, 18 February 1993)
- R v Hooper (unreported, NSWCCA, 19 November 1998)