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Court of Criminal Appeal 8 August 2022

Murda v R

[2022] NSWCCA 167

Assault & violenceFraud & dishonestyTheft & property
CRIME APPEALS APPEAL AGAINST SENTENCE DATED WHETHER ERROR IN NOT BACK DATING COMMENCEMENT EARLIER STILL

Citation: Murda v R [2022] NSWCCA 167
Court: Court of Criminal Appeal, NSW
Date: 8 August 2022
Judges: Leeming JA (principal judgment); Hamill J and Ierace J (agreeing)

Background

The applicant pleaded guilty in the District Court to five offences committed over a five-day period in late November and early December 2019. The offences included taking and driving a stolen vehicle, tampering with vehicle identifiers, aggravated stealing from a person, assault with intent to rob in company, and reckless wounding in company. The latter four offences involved a scheme to steal mobile phones through fraudulent online advertisements, during which two victims suffered serious physical injuries.

The District Court imposed an aggregate sentence of five and a half years imprisonment with a non-parole period of three years and two months, incorporating a 25 per cent discount for early guilty pleas. The applicant had been taken into custody on 4 December 2019, but the sentence was backdated only to 5 June 2020, reflecting the interaction with an earlier, unrelated sentence. The applicant was 19 years old at the time of the offences.

The applicant sought leave to appeal on four grounds, arguing the sentencing judge failed to account adequately for pre-sentence custody, misapplied totality principles, gave insufficient weight to his youth, and that failing to backdate the sentence to 4 December 2019 rendered it manifestly excessive.

  • Whether the sentencing judge failed to consider the applicant's time in custody from 28 February 2019 onwards when imposing sentence
  • Whether the sentencing judge misapplied the principle of totality
  • Whether the sentencing judge gave inadequate weight to the applicant's youth as a mitigating factor
  • Whether the failure to backdate the sentence to 4 December 2019 (rather than 5 June 2020) rendered the aggregate sentence manifestly excessive

Decision

Ground 3 (Youth): The Court of Criminal Appeal refused leave on this ground. The sentencing judge had expressly and repeatedly taken the applicant's youth into account, including three separate references to his immaturity and its relevance to peer influence and rehabilitation prospects. Leeming JA confirmed the well-established principle that a complaint about inadequate weight given to a sentencing factor is a difficult basis for establishing appellable error under the House v The King standard, and that the applicant's counsel conceded the sentencing judge had not overlooked youth altogether.

Grounds 1 and 2 (Pre-sentence custody and totality): The Court noted the complexity arising from the overlap between the present offending and earlier, unrelated imprisonment. The applicant had been at liberty for approximately two months between periods of custody, and the sentencing judge had already backdated the sentence to 5 June 2020 to reflect the interaction with the earlier sentence. No error was established in the sentencing judge's approach to either the custody period or the totality principle.

Ground 4 (Backdating and manifest excess): The Court declined to accept that failing to backdate to 4 December 2019 itself constituted appellable error. The commencement date of a sentence involves an exercise of discretion, and the pre-sentence custody in question was not solely referable to the present offending. While the Court acknowledged there may be rare cases where a new sentence is appropriately backdated so as to wholly subsume an earlier one, this was not such a case. Given the seriousness of the offending, the applicable maximum penalties, the standard non-parole period for reckless wounding, and the fact the offences were committed while the applicant was on conditional liberty, the aggregate sentence was not manifestly excessive.

Orders Made

  • Leave to appeal granted, confined to grounds 1, 2, and 4
  • Appeal dismissed

Key Takeaways

  • A complaint that a sentencing judge gave insufficient weight to a particular factor (such as youth) will rarely succeed as a standalone ground of appeal; appellate intervention on this basis is confined to narrow circumstances, and the Court of Criminal Appeal reaffirmed that position here.
  • Where a sentencing judge expressly and repeatedly addresses a mitigating factor in oral reasons, the absence of still greater emphasis will not ordinarily disclose error.
  • Determining the commencement date of a sentence involves a discretionary judgment; failing to backdate a sentence so as to wholly subsume an earlier, separately imposed sentence does not of itself amount to appellable error.
  • Pre-sentence custody that is not solely referable to the offending being sentenced does not automatically attract backdating to the earliest possible date, even where some overlap exists.
  • In dismissing the appeal, the Court confirmed that an aggregate sentence can remain appropriate even where the aggregate exceeds the longest individual indicative sentence by a substantial margin, provided the totality principle has been engaged and the overall sentence reflects the true criminality involved.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35, 95, 97, 154A, 154H
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 11
- R v Baker [2000] NSWCCA 85
- Yang v R [2012] NSWCCA 49
- Vaiusu v R [2017] NSWCCA 71
- Dellow v R [2020] NSWCCA 301
- Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
- Waugh v The Queen (2013) 38 VR 66; [2013] VSCA 36