Citation: R v Murray [2011] NSWDC 203
Court: District Court of New South Wales
Date: 2 September 2011
Judge: Berman SC DCJ
Background
The offender, a man in his early thirties with a substantial criminal history, was released from custody in February 2010. Following a personal crisis involving a former partner, he engaged in heavy alcohol and drug use and was hospitalised after an overdose of alcohol, methadone and valium.
The following day, the offender entered a convenience store and demanded cigarettes while brandishing what appeared to be a handgun. He was also in possession of knuckledusters. When the store owner confronted him with a metal bar and took the imitation firearm, the offender fled. On being detained nearby by members of the public, he made threatening remarks directed at a pizza shop owner who had assisted in apprehending him.
The offender faced four charges arising from these events: attempted armed robbery, possessing an imitation firearm, possessing knuckledusters, and intimidation. He pleaded guilty to three charges and contested the attempted armed robbery at a judge-alone trial.
Legal Issues
- Whether the offender was guilty of assault with intent to rob while armed with a dangerous weapon, given evidence suggesting the intention to rob may have been only momentary
- How to assess the objective seriousness of the weapons possession offences, which carried standard non-parole periods
- How to avoid double counting the possession of the imitation firearm across both the attempted robbery charge and the separate weapons charge
- What discount to apply to sentences where guilty pleas were entered late due to the prosecution's stance, not the offender's delay
- Whether special circumstances existed to justify a variation from the standard non-parole period ratio
- How the principle of totality should apply where the offender was being sentenced separately from other related matters
Decision
On the contested attempted robbery charge, the court found the offender guilty. Although evidence suggested the intent to rob may have been momentary and perhaps wavered by the time the offender began searching for identification cards, the court was satisfied the elements of the offence were made out.
On the weapons charges, the court assessed both offences as significantly below the mid-range of objective seriousness. The imitation firearm could not cause injury, and the knuckledusters, while capable of causing harm, were never used. The court also noted that the upper range of prohibited weapons extends to items capable of causing death, placing these offences toward the lower end of the spectrum.
The court took care to avoid double counting the imitation firearm. Because possession of that item was also the basis for elevating the maximum penalty on the attempted robbery charge, punishing the offender separately for its possession required particular care to ensure the same conduct was not penalised twice.
A 25 percent discount was applied to the three guilty plea matters. The court accepted the prosecution's concession that the late timing of the pleas was attributable to the Crown's own position rather than any fault of the offender. Special circumstances were found on two bases: the need for a lengthy supervisory parole period given the offender's history, and the accumulation of these sentences upon earlier sentences. The principle of totality was addressed by backdating the commencement of sentences to 25 November 2010.
Orders Made
- Intimidation of Joseph Kudare: fixed term of 18 months imprisonment, commencing 25 November 2010
- Weapons possession offences (concurrent): non-parole period of 1 year, head sentence of 2 years, commencing 25 November 2011
- Assault with intent to rob while armed with a dangerous weapon: non-parole period of 18 months, head sentence of 4 years and 6 months, commencing 25 May 2012
- Overall sentence: non-parole period of 3 years, total head sentence of 6 years; eligible for parole on 24 November 2013
Key Takeaways
- The District Court confirmed that where possession of an imitation firearm forms the basis for an elevated maximum penalty on an armed robbery charge, that same possession cannot be treated as a further aggravating feature when sentencing for the separate weapons possession offence.
- Objective seriousness for weapons possession charges must be assessed by reference to the full spectrum of weapons covered by the relevant offence, including those capable of causing death, not merely by comparison with the specific item in question.
- A guilty plea discount of 25 percent remained available even where pleas were entered late, provided the lateness was caused by the prosecution's own conduct rather than any dilatoriness on the part of the offender.
- Where sentences for related matters are imposed at different times, the totality principle still applies and may be addressed by adjusting commencement dates to replicate the outcome that would have been reached had all matters been sentenced together.
- Special circumstances justifying a longer parole period can be established by combining the offender's rehabilitative needs with the structural effect of accumulated sentences, both of which increase the time needed for supervised reintegration.
Legislation and Cases Referenced
Cases:
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R (sentencing principles for armed robbery)
Legislation: No specific legislation was cited in the provided text. The judgment references standard non-parole periods applicable to the weapons offences, which arise under NSW sentencing legislation, but the specific provisions were not identified in the available text.