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Court of Criminal Appeal 9 May 2012

R v Murrell

[2012] NSWCCA 90

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW CROWN APPEAL SENTENCING WHETHER NON RESIDUAL DISCRETION EXERCISED APPEAL DISMISSED.

Citation: R v Murrell [2012] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 9 May 2012
Judges: McClellan CJ at CL, Latham J, Harrison J

Background

The Director of Public Prosecutions appealed against sentences imposed on a respondent convicted of two serious offences: robbery in company (carrying a maximum of 20 years) and aggravated break and enter with intimidation whilst armed with an offensive weapon (also carrying a maximum of 20 years, with a standard non-parole period of 5 years). Two further minor drug-related offences were taken into account on a Form 1 at the time of sentencing for the break and enter charge.

The robbery involved the respondent and a co-offender producing a firearm in a van and demanding property from two salesmen. The break and enter occurred at a family home shortly after midnight, when three masked offenders armed with blunt weapons confronted two adults and their infant children, threatened and intimidated the family, and stole cash, jewellery, electronics, and the victims' car keys.

The sentencing judge imposed a non-parole period of 2 years on the robbery charge and a non-parole period of 2 years and 6 months on the break and enter charge, with the second sentence accumulated by one year on the first. The resulting sentences were also partly concurrent with sentences the respondent was already serving for unrelated offences. The Crown argued the overall sentencing outcome was manifestly inadequate.

  • Whether the sentence for the aggravated break and enter offence adequately reflected the objective seriousness of that offence.
  • Whether the non-parole period for the break and enter offence adequately reflected the gravity of an offence with a statutory standard non-parole period.
  • Whether an excessive degree of partial concurrency was applied when aggregating the sentences.
  • Whether each individual sentence and the aggregate sentence were manifestly inadequate.
  • Whether, even if error was established, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene and dismiss the appeal.

Decision

The Court of Criminal Appeal found that the sentence imposed for the aggravated break and enter offence did fail to adequately reflect the objective gravity of that offence, even when the respondent's relevant subjective factors were taken into account. The accumulation of sentences was also found to fall considerably short of capturing the total criminality involved across the offences.

Despite these findings of error, the Court turned to the question of residual discretion. Under well-established principles, even where sentencing error is demonstrated on a Crown appeal, the appellate court retains a discretion to decline to re-sentence if the interests of justice do not require intervention.

The Court placed significant weight on the respondent's subjective circumstances. These included a deeply dysfunctional upbringing involving domestic violence, his mother's departure from the family home during childhood, the absence of parental supervision, and an extended period in which the respondent was substantially responsible for caring for his seriously ill and later brain-injured father, who died in April 2010. The respondent had received limited education and had no meaningful employment history. The Court also noted his relative youth at the time of offending.

Critically, the Court observed that the respondent had undertaken substantial educational and rehabilitative programmes in custody, including TAFE electronics training, a business administration traineeship, and occupational health and safety coursework. He had stable post-release accommodation available. The Court concluded that increasing the aggregate non-parole period would undermine the respondent's genuine prospects of rehabilitation and that any extension of detention beyond age 30 would not serve the purposes of sentencing in this case. On that basis, the residual discretion was exercised and the appeal was dismissed.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a finding of sentencing error on a Crown appeal does not automatically lead to re-sentencing; the residual discretion to decline intervention remains available and was exercised here.
  • Substantial and genuine post-sentence rehabilitation, combined with compelling subjective circumstances including childhood disadvantage and significant carer responsibilities, can weigh heavily in the exercise of the residual discretion on a Crown appeal.
  • The Court found the sentencing below did fail to adequately reflect the objective seriousness of an aggravated break and enter offence under s 112(2) of the Crimes Act 1900, and that the accumulation of sentences fell short of the total criminality involved.
  • Under s 112(2), the standard non-parole period of 5 years operates as a legislative benchmark, and departures from it in sentencing require proper justification by reference to objective and subjective factors.
  • A respondent's lack of any employment history and the potential impact of extended custody on future employment prospects are legitimate considerations in assessing whether residual discretion should be exercised on a Crown appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Henry & Ors [1999] NSWCCA 111
- R v Koloamatangi [2011] NSWCCA 288
- Zreika v The Queen [2012] NSWCCA 44
- R v MAK & MSK [2006] NSWCCA 381
- Green v The Queen; Quinn v The Queen [2011] HCA 49