Citation: MURRAY, Justin James v R [2013] NSWCCA 12
Court: Court of Criminal Appeal, NSW
Date: 5 February 2013
Judges: McClellan CJ at CL, Rothman J, Adamson J
Background
The appellant was convicted following a trial in the District Court of assault with intent to rob whilst armed with a dangerous weapon, and had separately pleaded guilty to possessing prohibited weapons and intimidation. The offences arose from a single incident on 28 February 2010 at a convenience store, where the appellant pointed what appeared to be a handgun at a store worker demanding cigarettes and was later found to be wearing knuckle-dusters.
The District Court sentenced the appellant on 2 September 2011. The sentences were partially accumulated, producing an aggregate non-parole period of three years and a total head sentence of six years, with subsequent sentences (imposed on 10 February 2012 for unrelated offences) extending the non-parole period by a further six months.
The appellant sought leave to appeal on the basis that the individual and aggregate sentences were excessive, that the sentencing judge had erred in applying the armed robbery guideline judgment, and that the accumulation and totality principles had not been properly observed.
Legal Issues
- Whether the fact that certain charges could have been dealt with summarily was a relevant sentencing consideration
- Whether the sentencing judge misapplied the guideline judgment in R v Henry (1999) 46 NSWLR 346
- Whether the extent of accumulation between the sentences was erroneous
- Whether the sentencing judge gave adequate consideration to the principle of totality
- Whether the individual or aggregate sentences were manifestly excessive
Decision
The court was divided. Rothman J, writing the substantive judgment on the individual sentences, agreed with the appellant that a less severe overall sentence was warranted. His Honour considered the ameliorating circumstances, including the appellant's progress in rehabilitation, relevant medical conditions, and the somewhat bizarre nature of the offending, and concluded that the degree of accumulation had produced an aggregate sentence that was excessive. Rothman J proposed substituted sentences reducing the aggregate non-parole period from three years to approximately two years and one month, within an overall head sentence of five years and one month.
McClellan CJ at CL agreed that the individual sentences were appropriate, but disagreed that the overall sentence was excessive. His Honour emphasised that count 1 carried a maximum penalty of 25 years, that no guilty plea was entered on that count (meaning no discount for a plea applied), and that partial accumulation was necessary to reflect the seriousness of the offending. His Honour noted that questions of accumulation and totality fall primarily within the sentencing judge's discretion, and that the Court of Criminal Appeal would be reluctant to intervene.
Adamson J agreed with McClellan CJ at CL. The majority therefore held that, while the sentence was severe, it fell within the appropriate range and no error warranting appellate intervention had been established.
Leave to appeal was granted by all judges, but the appeal was dismissed by majority (McClellan CJ at CL and Adamson J), with Rothman J dissenting on the question of manifest excess in the aggregate sentence.
Orders Made
- Leave to appeal granted
- Appeal dismissed (by majority of McClellan CJ at CL and Adamson J)
Key Takeaways
- Accumulation and totality are matters that fall primarily within the sentencing judge's discretion; the Court of Criminal Appeal confirmed it will be slow to intervene unless the aggregate sentence is clearly outside the appropriate range.
- Where an offender proceeds to trial rather than pleading guilty, the absence of a plea discount is a legitimate and significant factor supporting a heavier sentence on the most serious count.
- The maximum penalty for the principal offence (here, 25 years for assault with intent to rob whilst armed) remains a meaningful indicator of objective seriousness when assessing whether an aggregate sentence is within range.
- A dissent on manifest excess is possible even where all judges agree that individual component sentences were appropriate; the point of divergence in this case concerned whether the partial accumulation of those components produced an unjustifiable overall result.
- In dismissing the appeal, the majority did not disturb the principle that rehabilitation and personal circumstances are relevant mitigating factors; rather, they found those factors had been adequately reflected and did not bring the sentence outside the acceptable range.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
Cases:
- R v Henry (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
- Stanford v R [2007] NSWCCA 73
- Zreika v R [2012] NSWCCA 44