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District Court 8 December 2008

R v William John Murray

[2008] NSWDC 285

Assault & violenceFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE RESIST OFFICER IN EXECUTION OF DUTY ASSAULT OFFICER IN EXECUTION OF DUTY ESCAPE FROM LAWFUL CUSTODY

Citation: R v William John Murray [2008] NSWDC 285
Court: District Court of New South Wales
Date: 8 December 2008
Judge(s): Hulme SC DCJ

Background

Two plainclothes police officers attempted to arrest the offender on 26 January 2007 in Chippendale, believing him to be in breach of bail conditions. That belief was genuine but mistaken. The officers were purporting to exercise the arrest power under s.50 of the Bail Act 1978.

A violent struggle broke out almost immediately. The offender resisted and assaulted both officers, and at one point attempted to seize one officer's pistol in order to prevent his own apprehension. He did not gain full control of the weapon, which is why that charge was framed as an attempt. Despite the officers deploying capsicum spray twice and striking the offender with a baton on multiple occasions, the offender broke free and fled the scene.

The offender was tried without a jury before Hulme SC DCJ and was found guilty on all six counts on 17 October 2008, with the earlier verdict recorded at R v William John Murray [2008] NSWDC 226. The sentencing proceedings followed on 5 December 2008.

  • What total sentence was appropriate across six counts, given the objective seriousness of the offences and the offender's extensive criminal history?
  • How should the principles of concurrence and accumulation be applied to reflect the distinct criminality against each of the two officer victims?
  • Whether special circumstances existed to justify reducing the proportion of the sentence represented by the non-parole period, particularly in light of rehabilitation progress.
  • How much weight should be given to the offender's background, drug and alcohol history, and psychological profile in mitigation?
  • What pre-sentence custody credit was properly referable to the present offences, given that part of the relevant period was served on an unrelated sentence?

Decision

Hulme SC DCJ found the offences to be objectively serious. The attempt to seize a police officer's loaded firearm during a struggle was treated as a particularly grave feature, given the obvious danger it posed. The court noted that the offender overcame the combined efforts of two officers using both capsicum spray and a baton, and escaped apparently uninjured.

The offender's criminal history weighed heavily in the sentencing assessment. His prior record included previous convictions for assaulting and resisting police, and for using an offensive weapon to prevent lawful apprehension (on that earlier occasion, he drove a vehicle at police officers). The court also noted that the present offences were committed while the offender was on bail, which was a serious aggravating factor.

The court accepted that the offender's hostile response to police was partly explained by a recent series of encounters with police in late 2006 and early 2007, some of which appeared to have been unwarranted. His background, including a difficult upbringing, drug dependence, and illiteracy, was taken into account as mitigating material. Progress toward rehabilitation, including participation in a methadone program, was accepted as genuine and was reflected in the structure of the non-parole period.

On the question of concurrence and accumulation, the court ordered concurrent sentences for the resist and assault counts relating to each individual officer, but accumulated the sentences across the two officers to recognise the distinct criminality involved in offending against two separate victims. The sentence for the s.33B offence was further accumulated. Special circumstances were found to exist, both because of the accumulation structure and because of the offender's rehabilitation prospects, and the non-parole period was reduced accordingly.

Orders Made

  • Escape from lawful custody: Fixed term of 6 months, commencing 12 October 2008, concluding 11 April 2009.
  • Resist and assault Plainclothes Senior Constable Owen (each count): Non-parole period of 12 months plus balance of term of 6 months, commencing 12 January 2009; non-parole periods expiring 11 January 2010.
  • Resist and assault Plainclothes Constable Evans (each count): Non-parole period of 12 months plus balance of term of 6 months, commencing 12 April 2009; non-parole periods expiring 11 April 2010.
  • Attempt to use weapon to prevent lawful apprehension: Non-parole period of 12 months plus balance of term of 1 year 6 months, commencing 12 July 2009; non-parole period expiring 11 July 2010, with release on supervised parole directed at that date.
  • Total sentence: 3 years 3 months with a non-parole component of 1 year 9 months.
  • Sentence back-dated to 12 October 2007 to reflect the limited pre-sentence custody directly referable to the present matter (5 days).

Key Takeaways

  • An attempt to seize a police officer's loaded firearm during an arrest was treated by the District Court as a particularly serious feature elevating the gravity of the overall offending, even where the offender did not gain full control of the weapon.
  • Where two officers are victims of separate assaults and resistance arising from the same incident, a degree of accumulation of sentences is appropriate to reflect the distinct criminality directed at each individual victim.
  • Special circumstances for reducing the non-parole proportion may arise from both the structural effect of accumulated sentences and evidence of genuine rehabilitation progress, including participation in drug treatment programs.
  • Committing offences while on bail is a significant aggravating factor, and the sentencing court here gave it explicit weight in the overall assessment.
  • Pre-sentence custody credit is properly confined to the period that is solely referable to the offences being sentenced; time served concurrently on an unrelated sentence does not count toward that credit.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss. 58 and 33B(1)(a)
- Bail Act 1978 (NSW), s. 50

Cases
- R v William John Murray [2008] NSWDC 226 (earlier verdict in the same proceedings)
- R v Murray [2003] NSWCCA 116 (Court of Criminal Appeal decision on prior sentence)
- Sharpe v R [2006] NSWCCA 255
- R v Bloomfield (1998) 44 NSWLR 734