Citation: R v Murphy [2014] NSWDC 382
Court: District Court of New South Wales
Date: 17 March 2014
Judge(s): Judge S Norrish QC
Background
The offender, a 19-year-old man, pleaded guilty to three counts of armed robbery and one count of attempting to steal from a motor vehicle. All four offences were committed in the early hours of 9 September 2013 on the grounds of the University of New South Wales. The offender used a kitchen-style knife to threaten three victims in separate incidents within approximately ten minutes, obtaining a wallet, $20 in notes, and $20 in loose change. He was arrested at the scene after police were alerted by one of the victims.
The offender had a juvenile criminal history that included findings of guilt for robbery in company, assault occasioning actual bodily harm, affray, aggravated break and enter, using an offensive weapon, and a police pursuit offence. Despite a series of lenient disposals in the Children's Court, including probation, suspended control orders, and community service, the offending pattern had continued into adulthood.
At sentence, the Defence tendered a psychologist's report, a joint report from Alcohol and Other Drug workers and Corrective Services, material relating to a residential rehabilitation program, and character references. The offender told police he had robbed the victims to obtain money to feed his infant daughter.
Legal Issues
- What were the appropriate individual sentences for each of the four offences, having regard to their objective seriousness and the offender's personal circumstances?
- How should the totality principle be applied to ensure the aggregate sentence was not crushing for a young offender?
- What discount applied for the early pleas of guilty?
- Was a section 11 remand appropriate to allow the offender to commence a residential rehabilitation program before sentence was formally imposed?
- What parole conditions were appropriate to address the offender's rehabilitative needs?
Decision
Judge Norrish accepted that the armed robberies were objectively serious offences by reason of the use of a knife and direct threats to victims, notwithstanding that the actual proceeds were very small. The attempted larceny, involving a smashed car window and a DNA match, was treated as a less serious but connected matter.
The Court acknowledged significant mitigating factors: the offender's youth, his early and consistent pleas of guilty, his cooperation with police, a difficult upbringing documented in the psychological report, and his expressed motivation (however legally irrelevant) of providing for his child. The prior criminal history, however, was a significant aggravating feature, reflecting what the Court described as a disturbing trend of antisocial and violent behaviour despite repeated opportunities for rehabilitation.
Applying the totality principle, the Court structured the sentences so that non-parole periods for the two earlier robberies (upon Wong and Ilinj) ran concurrently with each other but were staggered against the non-parole period for the Castillo robbery, producing a total effective non-parole period of 11 months. The Court deliberately extended the parole supervision period to over two years to provide meaningful oversight of the offender's rehabilitation, including drug and alcohol treatment and psychological support.
The Court had previously remanded the matter under section 11 of the Crimes (Sentencing Procedure) Act 1999 to allow the offender to enter a residential rehabilitation program. That period was taken into account in constructing the final sentence.
Orders Made
- Attempted larceny: Convicted; sentenced to a fixed term of 3 months imprisonment, dating from 9 September 2013 and expiring on 8 December 2013.
- Armed robbery (Castillo): Convicted; non-parole period of 11 months from 9 September 2013, expiring 8 August 2014; balance of sentence of 1 year 7 months, total sentence expiring 8 March 2016.
- Armed robbery (Wong) and armed robbery (Ilinj): Convicted on each count; non-parole period of 8 months on each, dating from 9 December 2013 and expiring 8 August 2014; balance of sentence of 2 years 1 month on each, expiring 8 September 2016.
- Total effective sentence: 3 years imprisonment with a non-parole period of 11 months.
- Release to parole directed on 8 August 2014, subject to conditions including drug and alcohol rehabilitation and psychological treatment, to be fixed by the Parole Authority.
Key Takeaways
- The District Court confirmed that even where the proceeds of armed robbery are minimal, the use of a weapon and direct threats to victims renders the offending objectively serious, attracting a custodial sentence.
- Applying the totality principle to multiple offences committed in a single episode, the court structured concurrent and partially staggered non-parole periods to avoid a crushing aggregate sentence on a young offender with genuine rehabilitative prospects.
- A section 11 remand under the Crimes (Sentencing Procedure) Act 1999 was used to permit the offender to enter a residential rehabilitation program before formal sentence, with that remand period absorbed into the final sentence structure.
- Youth, early pleas of guilty, cooperation with police, and documented personal hardship were recognised as mitigating factors, but a sustained juvenile criminal history significantly limited the weight those factors could carry.
- An extended parole supervision period, exceeding the non-parole period by more than two years, was used as a deliberate mechanism to provide structured oversight of the offender's rehabilitation after release.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
- Children (Criminal Proceedings) Act (NSW)
Cases:
- R v Henry & Ors (1999) 46 NSWLR 346
- Pearce v The Queen (1998) 194 CLR 610
- Veen (No 2) v R (1988) 165 CLR 465
- R v Hearne [2001] NSWCCA 37
- Kovacevic v R (2000) 111 A Crim R 131
- R v Blackman & Walters [2001] NSWCCA 121
- R v Palu [2002] NSWCCA 381
- R v Trindall [2002] NSWCCA 364
- R v Lattouf (unreported, 1996, NSWCCA)
- Yardley v Betts (1979) 22 SASR 108