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Court of Criminal Appeal 2 October 2019

Murray v R

[2019] NSWCCA 235

Assault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE RANGE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Murray v R [2019] NSWCCA 235
Court: NSW Court of Criminal Appeal
Date: 2 October 2019
Judge(s): Johnson J, Price J, Lonergan J (Price J delivering the principal judgment)

Background

The appellant pleaded guilty in the Local Court to one count of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW), and adhered to that plea in the District Court. The offence involved the appellant stabbing his sister multiple times with a kitchen knife at her Waterloo home, causing a punctured lung, deep wounds, nerve damage, and lasting tendon injury to her arm. The appellant was either intoxicated by methamphetamine or in withdrawal at the time.

In February 2018, the District Court sentenced the appellant to 7 years imprisonment, with a non-parole period of 4 years and 6 months. A 25% discount was applied for the utilitarian value of the guilty plea. The maximum penalty for the offence is 25 years imprisonment, and the standard non-parole period is 7 years.

The appellant sought leave to appeal, contending that the sentencing judge miscategorised the objective seriousness of the offence as mid-range and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred in classifying the objective seriousness of the offence as mid-range
  • Whether the absence of an identifiable motive reduced the objective seriousness of the offence
  • Whether the absence of specific statutory aggravating factors prevented a mid-range finding
  • Whether the sentencing judge failed to adequately address the appellant's mental state at the time of the offending
  • Whether the specific intention required under s 33(1)(a) necessitates planning
  • Whether insufficient weight was given to ameliorating subjective factors, including the appellant's Aboriginal background, deprived upbringing, and drug-induced mental state
  • Whether the sentence was manifestly excessive

Decision

Price J, with whom Johnson J and Lonergan J agreed, dismissed each ground of appeal and found the sentence fell within the legitimate exercise of the sentencing judge's discretion.

On objective seriousness, the Court found no error in the mid-range classification. The stabbing was repeated, caused serious and lasting injuries, and occurred with the specific intention required by s 33(1)(a). The absence of an identifiable motive did not reduce objective seriousness, and the absence of certain aggravating factors was not sufficient to displace the mid-range assessment given the nature and consequences of the attack.

On the mental element, the Court confirmed that s 33(1)(a) requires proof of specific intent to cause grievous bodily harm, but does not require planning. The sentencing judge had considered the appellant's mental state and the circumstances surrounding the offending. The Court found no inadequacy in that treatment.

On subjective matters, the Court accepted that the appellant's Aboriginal background, deprived childhood, and history of substance abuse were relevant mitigating factors and had been taken into account, consistent with the High Court's guidance in Bugmy v The Queen (2013). However, the Court confirmed that self-induced intoxication at the time of the offence was not a mitigating factor under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Taking all factors together, the Court was not persuaded the sentence was manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 33(1)(a) of the Crimes Act 1900 (NSW), specific intent to cause grievous bodily harm is required, but the Court confirmed that planning is not an element of that specific intention.
  • The absence of identifiable motive does not, of itself, reduce the objective seriousness of an offence of wounding with intent; seriousness is assessed by reference to the nature of the conduct and the harm caused.
  • A sentencing court is not precluded from placing an offence in the mid-range merely because certain statutory aggravating factors are absent; the overall circumstances govern the assessment.
  • Self-induced intoxication at the time of offending is expressly excluded as a mitigating factor under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a position the Court confirmed was accepted during the appeal.
  • Consistent with Bugmy v The Queen, an offender's Aboriginal background, childhood deprivation, and history of substance abuse remain relevant subjective considerations at sentencing, though their weight must be balanced against all other sentencing factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (including s 21A(2)(n), s 21A(3)(b), and s 21A(5AA))

Cases
- AM v R [2012] NSWCCA 203; (2012) 225 A Crim R 481
- Barbaro v The Queen; Zirili v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Clinton v R [2014] NSWCCA 320
- Cramp v R [2016] NSWCCA 305
- GW v R [2018] NSWCCA 79
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Lees v R [2019] NSWCCA 65
- Louizos v R, R v Louizos [2009] NSWCCA 71; (2009) 194 A Crim R 223
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Testalamuta v R [2007] NSWCCA 258
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460