R v Murray [2015] NSWDC 286

Citation: R v Murray [2015] NSWDC 286
Court: District Court of NSW
Date: 25 February 2015
Judge(s): Conlon DCJ

Background

The offender, a 54-year-old man, appeared for sentence after pleading guilty to aggravated sexual intercourse without consent (s 61J, maximum 20 years) and robbery (s 94, maximum 14 years), with four additional matters taken into account on a Form 1 schedule. The offences occurred on a late-night commuter train on 29 March 2014 and were captured in their entirety on CCTV footage.

The victim, a 34-year-old woman with diagnosed bipolar disorder and anxiety, was alone in the upper carriage of the train. After she rebuffed the offender's earlier approach downstairs, he followed her upstairs once another passenger had alighted. He then launched an unprovoked and violent assault involving punching her, forcibly kissing her, and digitally penetrating her vagina. During the assault he removed her mobile phone from inside her bra and fled when the train pulled into Macquarie Fields station.

The offender had a significant criminal history, including a 2006 conviction for aggravated sexual assault with a weapon, for which he received a five-year sentence. Probation and parole material from that earlier matter indicated limited insight into his offending and poor motivation to address it.

Legal Issues

What sentence was appropriate given the objective seriousness of the offending, the victim's vulnerability, and the violent and predatory circumstances of the attack?
What weight should be given to the offender's prior record, including a prior conviction for aggravated sexual assault?
Whether the offender's expressions of remorse were genuine and what, if any, mitigating weight should attach to them?
Whether there were positive prospects of rehabilitation in light of the offender's history and re-offending after earlier favourable findings?
Whether a risk of re-offending was established such that community protection required reflection in the sentence?
What discount was appropriate for the early plea of guilty?
Whether special circumstances warranted a non-standard ratio of non-parole period to head sentence?

Decision

Objective seriousness and the attack itself: Conlon DCJ found the assault was vicious and brutal, even if described as opportunistic in its initiation. The CCTV footage captured the king hit, repeated forcible kissing, and digital penetration, with the victim's body visibly moving from the force applied (at [10], [23]). The victim was vulnerable by reason of her mental illness and her isolation in the upper carriage (at [23]). The prior conviction for aggravated sexual assault was treated as an aggravating factor (at [25]).

Credibility and remorse: The court rejected the offender's claim to have little or no memory of the incident as demonstrably untrue, given the detailed account he had given police before being shown the CCTV footage (at [20]-[21]). His expressions of remorse in a handwritten letter and before Dr Furst were difficult to accept as genuine, given the long delay and his earlier attempts to fabricate a consensual narrative (at [45]-[46]). A further handwritten document dated 19 September 2014 was received and taken into account, with the court expressing hope that genuine insight might assist future rehabilitation (at [48]).

Rehabilitation and community protection: The court noted that at the time of the earlier 2006 offence, a different judge had found reasonably good prospects of rehabilitation. The offender's subsequent reoffending made any positive finding on rehabilitation impossible (at [47]). Drawing on the principles in R v Robinson and Veen v The Queen (No 1), the court was satisfied by the material before it that a risk of re-offending had been established and that this must be reflected in the sentence (at [51]-[54]).

Plea discount and totality: A discount of approximately 25% was applied to reflect the utilitarian benefit of the early guilty plea (at [55]). The robbery sentence was ordered to run concurrently, as it occurred at the very end of the sexual assault and reflected the offender's total disregard for the victim (at [56]). No special circumstances were found (at [59]).

Orders Made

Robbery (s 94): fixed term of two years imprisonment, commencing 31 March 2014 and expiring 30 March 2016. No separate non-parole period specified, as it is subsumed within the principal sentence.
Aggravated sexual intercourse without consent (s 61J): non-parole period of nine years, commencing 31 March 2014 and expiring 30 March 2023; additional term of three years, expiring 30 March 2026.
Total head sentence: 12 years imprisonment with a non-parole period of nine years.
Four further matters on the Form 1 schedule taken into account in relation to the principal sentence.

Key Takeaways

A prior conviction for a serious sexual offence of similar character constitutes an aggravating factor at sentencing, and re-offending after an earlier finding of good rehabilitative prospects can preclude any positive finding on rehabilitation at a subsequent sentence (at [25], [47]).
Where an offender provides a detailed but fabricated account to police before being confronted with CCTV evidence, a court is entitled to reject subsequent claims of limited memory and to treat expressions of remorse with significant caution (at [20]-[21], [45]-[46]).
The District Court applied the principles from Veen v The Queen (No 1) and R v Robinson, holding that where compelling evidence establishes a risk of re-offending, community protection must be reflected in the sentence imposed (at [51]-[54]).
An early guilty plea attracted a utilitarian discount of approximately 25%, but this benefit was assessed separately from contrition, which the court found difficult to accept as genuine on the facts (at [55]).
Concurrency of sentences across a robbery and a contemporaneous sexual assault may be appropriate where the robbery occurred as an integral final act of the sexual offence and reflected a single criminal episode (at [56]).

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Ingham v R [2014] NSWCCA 123; R v Robinson [2002] NSWCCA 359; Veen v The Queen (No 1)(1979) 143 CLR 458; R v Harrison (1997) 93 ACRIMR 314