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District Court 15 February 2013

R v Murphy

[2013] NSWDC 33

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ROBBERY IN COMPANY (3 OFFENCES) DRUNKEN VIOLENCE

Citation: R v Murphy [2013] NSWDC 33
Court: District Court of New South Wales
Date: 15 February 2013
Judge(s): Berman SC DCJ

Background

The offender, David Murphy, was sentenced for three offences of robbery in company arising from events on 7 April 2012 in Newcastle. He and two co-offenders approached three young people walking along Hunter Street and demanded money and phones. One co-offender punched a victim in the face when he initially refused, and Murphy himself yelled demands while waving his fists, causing the victims to hand over a wallet and purse. A passing police patrol located and arrested all three offenders shortly afterwards.

Murphy's sentencing was delayed relative to his co-offenders, Joshua Upton and Steven Green, because a psychological report tendered on his behalf was not available at the earlier hearing. The psychological report revealed a difficult upbringing, including parental separation, exposure to drug use by his mother from an early age, poor treatment by a stepfather, and a history of anger and drug problems.

At the time of the offences, Murphy was 28 years old, employed as a boilermaker's apprentice, and on holidays. He was heavily intoxicated and affected by drugs at the time. He was also subject to two bonds under the Crimes (Sentencing Procedure) Act, the breach of which raised procedural complications addressed separately in the judgment.

  • What sentence was appropriate for Murphy, taking into account the principle of parity with the sentences already imposed on his co-offenders?
  • What weight should be given to Murphy's personal circumstances, including his difficult background, remorse, early guilty plea, and prospects for rehabilitation?
  • How should the court treat the aggravating factor of Murphy being on two bonds at the time of the offences, and what procedural steps were required regarding those breaches?

Decision

Berman SC DCJ accepted the parity principle as relevant to the defence, noting that Murphy would have a justifiable sense of grievance if he received a longer sentence than his co-offenders. The Crown did not invoke parity in its favour but submitted the co-offenders' sentences were appropriate for Murphy as well. The judge accepted this position, treating the earlier sentences as the appropriate benchmark.

The court acknowledged Murphy's genuinely difficult background, including childhood exposure to drugs, poor parental modelling, and sustained anger issues. However, the judge emphasised that Murphy was 28 years old and could not rely on immaturity as a mitigating consideration. His remorse was accepted as genuine, supported by psychological evidence and his own testimony, and his early guilty plea attracted a 25 percent discount on the sentence that would otherwise have been imposed.

The court expressed concern about the procedural mishandling of the bond breaches. Murphy was on a section 9 bond and a section 10 bond under the Crimes (Sentencing Procedure) Act at the time of the offending. While no action was taken on the section 10 bond breach, the section 9 bond breach had not been referred to a magistrate before sentencing. The judge warned that this created a real risk of double punishment: the breach had been treated as an aggravating feature by the District Court, yet a magistrate would later deal with the breach without necessarily knowing that. The judge directed the Crown and defence to ensure the magistrate was fully informed.

Concurrent sentences were imposed for all three offences, which the judge described as an act of leniency. The non-parole period was set at 18 months within a three-year head sentence, backdated to the date Murphy entered custody.

Orders Made

  • Three concurrent sentences of imprisonment, each with a non-parole period of 18 months and a head sentence of 3 years.
  • Sentence to date from 7 April 2012.
  • Non-parole period to expire on 6 October 2013, on which date Murphy was to be released to parole.

Key Takeaways

  • The parity principle operated in Murphy's favour: the District Court held that a co-offender sentenced later has a legitimate basis to avoid a more severe sentence than those already imposed, and the court structured its approach accordingly.

  • Concurrent sentences across multiple robbery in company counts were available but treated as a measure of leniency rather than the default approach, indicating the court viewed separate criminality as warranting cumulation in ordinary circumstances.

  • A 25 percent discount on sentence was applied to reflect the utilitarian value of an early guilty plea, consistent with established sentencing practice under the Crimes (Sentencing Procedure) Act.

  • Where an offender is subject to an unresolved bond breach at the time of sentencing in a higher court, there is a procedural obligation on the Crown to have that breach dealt with beforehand. Leaving the breach to be resolved by a magistrate afterwards risks both double punishment and erosion of the non-parole supervision period.

  • Difficult personal history and background, including childhood exposure to drugs and abusive family circumstances, were accepted as contextual factors relevant to the offending, though they did not diminish the court's assessment of the offences themselves as serious.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), sections 9 and 10

Cases:
No cases were cited in the judgment text or metadata.