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Supreme Court 20 October 2016

R v Murdoch

[2016] NSWSC 1475

HomicideTheft & propertyFirearms & weapons
CRIMINAL LAW MURDER AGGRAVATED ARMED ROBBERY HIGH RISK OFFENDER

Citation: R v Murdoch [2016] NSWSC 1475
Court: Supreme Court of New South Wales
Date: 20 October 2016
Judge: Mathews AJ

Background

The offender was convicted by jury of murdering Kamran Yousaf and of aggravated armed robbery of Dianne Torro, both arising from a single incident at the Villawood Fruit Market on 12 October 2013. The offender and a co-offender, James Phan, entered the market disguised and armed, with the offender carrying a loaded pistol and Phan wielding a hammer. When Yousaf, a store employee, physically restrained Phan after he seized a cash till, the offender returned and shot Yousaf twice at close range in the abdomen and lower back, causing fatal internal injuries.

The offender was arrested two days later. He denied involvement throughout and raised identification as his sole defence at trial. DNA evidence recovered from items he discarded while fleeing, among other evidence, supported the jury's guilty verdict on both charges.

The co-offender Phan had been sentenced separately. His culpability for the murder was found to be significantly lower because his conviction rested on constructive murder: the jury found only that he foresaw the possibility of the gun being discharged, not that he intended death or serious injury. The offender's culpability, by contrast, was assessed as substantially greater, warranting entirely separate sentencing proceedings.

  • What was the appropriate objective seriousness of each offence, having regard to the aggravating and mitigating factors under ss 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999?
  • Whether an aggregate sentence under s 53A(2) of that Act was appropriate, given both offences arose from the same incident.
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the head sentence.
  • What non-parole period and head sentence were appropriate in all the circumstances, including the standard non-parole period for murder and the offender's prospects of rehabilitation?

Decision

Mathews AJ assessed the murder as above the midline of objective seriousness. The offender deliberately fired two shots at close range with the clear intention of at least causing very serious bodily harm, with the purpose of enabling his co-offender to escape lawful apprehension. While the killing was not premeditated, the offender had brought a loaded pistol and was plainly willing to use it. No significant mitigating features applied to reduce culpability for the murder.

The aggravated armed robbery was assessed as slightly below the midline of objective seriousness for that offence. The robbery was premeditated but no money was ultimately taken. The court applied the statutory aggravating and mitigating factors under ss 21A(2) and (3) in reaching these assessments.

The court declined to find special circumstances justifying a departure from the standard non-parole to head sentence ratio. Given the length of the overall sentence, the resulting parole period was considered more than adequate to address the rehabilitative and supervisory considerations raised on the offender's behalf.

Because both offences arose from the same incident, the court imposed an aggregate sentence under s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, indicating what it would have imposed for each offence individually before arriving at the combined term.

Orders Made

  • Aggregate term of imprisonment of 30 years.
  • Non-parole period of 22 years and 6 months, commencing 14 October 2013 and expiring 13 April 2036.
  • Additional term of 7 years and 6 months, commencing 14 April 2036 and expiring 13 October 2043.
  • Earliest eligible parole date: 13 April 2036.
  • The court indicated that for murder alone it would have imposed a non-parole period of 21 years with an additional term of 7 years (28 years total), and for the aggravated armed robbery a head sentence of 8 years.
  • The offender was warned of the application of the Crimes (High Risk Offenders) Act 2006.

Key Takeaways

  • An offender who shoots a victim twice at close range to free a co-offender from lawful citizen's apprehension, without any mitigating circumstances, will be assessed at above the midline of objective seriousness for murder.
  • Where co-offenders have materially different levels of culpability for the same offence, separate sentencing proceedings are appropriate, even when the charges arise from the same incident.
  • Under s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, where multiple offences arise from a single incident, an aggregate sentence allows the court to reflect the totality of criminality rather than treating each charge in isolation.
  • A claim of special circumstances for departure from the statutory non-parole ratio will not succeed where the resulting parole period, even on the standard ratio, is already of sufficient length to meet the purposes advanced.
  • Conviction for a serious violence offence triggers an obligation on the sentencing court to warn the offender of potential future proceedings under the Crimes (High Risk Offenders) Act 2006, which can result in ongoing detention or extended supervision beyond the completion of the sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 21A(3), 53A(2)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- Muldrock v R [2011] HCA 25