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District Court 27 March 2014

R v Murray

[2014] NSWDC 200

Assault & violence
CRIMINAL

Citation: R v Murray [2014] NSWDC 200
Court: District Court of New South Wales
Date: 27 March 2014
Judge: S Norrish QC DCJ

Background

The offender, Trevor Clayton Murray, pleaded guilty to one charge of assault occasioning actual bodily harm while in company, contrary to s 59(2) of the Crimes Act 1900. The offence occurred on 15 December 2012 at Cowra, when the offender and a co-accused, Edward McGrath, attended the victim's home and assaulted him. The co-accused believed the victim had kicked his daughter in the head the previous night.

The two men entered the victim's home after he retreated inside. During the altercation, the offender struck the victim and the co-accused choked him. The victim sustained two lacerations to the head and graze marks to the cheekbone. In the absence of medical evidence, the court characterised these injuries as relatively minor.

The offender had earlier offered to plead guilty to assault occasioning actual bodily harm at the Local Court stage, before the more serious charges were ultimately proffered and he was committed for trial. His plea in the District Court was entered shortly before the trial was due to commence, following a period of negotiations.

  • What discount, if any, should be applied to reflect the utilitarian value of the guilty plea, given the history of earlier offers to plead?
  • What were the appropriate findings of fact following a disputed facts hearing?
  • What sentence was appropriate having regard to the offender's criminal history, personal circumstances, and relevant mitigating and aggravating factors?
  • Whether the principles from Bugmy v The Queen and Munda v Western Australia regarding the relevance of background deprivation and Aboriginality applied to the sentencing exercise.

Decision

Guilty plea discount: The District Court settled on a 20% discount to reflect the utilitarian value of the plea, declining the defence submission of 25% but exceeding the Crown's suggested range of 10 to 15%. The court acknowledged the offender's earlier offer to plead guilty to the assault charge, drawing on the principles in Johnson v R and Cardoso v R, but noted the plea here was ultimately entered shortly before trial rather than at the earliest opportunity. The disputed facts hearing, while not entirely unsuccessful for the offender, did not diminish the court's recognition of the plea's utilitarian value.

Findings of fact: The court resolved disputed factual matters after receiving evidence from the victim, a statement from a physical evidence officer, photographs, and a triple-0 call transcript. Most contested matters related primarily to the co-accused. The court found the offender's involvement included striking the victim and participating in a joint criminal enterprise to commit the assault.

Sentencing considerations: The court assessed the objective seriousness of the offence as low to moderate. The offender's criminal history was substantial and weighed heavily against him. Mitigating factors included the guilty plea and an expression of remorse, though the latter was not regarded as timely. The court could not make a positive finding on rehabilitation prospects or likelihood of reoffending given the offender's past record. The maximum penalty for the offence is seven years imprisonment.

Starting point and final sentence: The court determined a starting point of 20 months imprisonment, reduced by 20% to 16 months. A non-parole period of nine months was fixed. The sentence was backdated to 24 December 2013 to give full effect to time spent in custody, consistent with s 47 of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • The offender was convicted of assault occasioning actual bodily harm in company under s 59(2) of the Crimes Act 1900.
  • Total sentence of 16 months imprisonment imposed.
  • Non-parole period of nine months fixed.
  • Sentence backdated to commence 24 December 2013, expiring 23 September 2014.
  • Direction made for the offender to be released to parole on 23 September 2014.

Key Takeaways

  • A guilty plea discount of 20% was appropriate where the offender had made an earlier offer to plead guilty at a lower court stage, but ultimately entered his plea shortly before a District Court trial following negotiations. This sat between the Crown's suggested range and the defence's submission.
  • Under the Thomson and Houlton guideline, the calculation of a discount for a guilty plea remains discretionary, and courts must weigh all relevant circumstances rather than mechanically applying a fixed percentage.
  • Where a disputed facts hearing follows a guilty plea, the existence of that hearing does not necessarily reduce the utilitarian value of the plea itself.
  • Principles from Bugmy v The Queen and Munda v Western Australia regarding the relevance of background deprivation informed the sentencing exercise, though the court's reasoning on this aspect was confined to the specific facts before it.
  • Section 47 of the Crimes (Sentencing Procedure) Act 1999 governed the backdating of the sentence, requiring the court to account for time already spent in custody rather than prospectively fixing the commencement date from the sentencing date.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(2), 111(2), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 47

Cases:
- Johnson v R [2003] NSWCCA 129
- Cardoso v R [2003] NSWCCA 15
- Thomson and Houlton [2000] NSWCCA 309
- Bugmy v The Queen [2013] HCA 37
- Munda v Western Australia [2013] HCA 38
- R v Engert (1995) 84 A Crim R 67
- Veen (No 2) v The Queen (1988) 164 CLR 465
- Callaghan v R [2006] NSWCCA 58
- R v Fernando [2002] NSWCCA 28