Citation: R v Murrell [2023] NSWDC 130
Court: District Court of NSW
Date: 2 May 2023
Judge: Noman SC DCJ
Background
The offender, aged 52 at the time of sentencing, faced sentence for serious offences committed in August and September 2011 when he was 40 years old. The offending involved two separate criminal episodes, committed in company with co-offenders, approximately one month apart.
The August 2011 offending centred on the Cobar Bowling and Golf Club in regional NSW. The offender and co-offenders carried out a planned armed robbery of the Club, which involved breaking into the home of the Club's secretary manager, restraining him at gunpoint, driving him to the Club, and then robbing two female staff members who were present after closing. Victims were cable-tied, struck with a firearm, and held for over an hour. More than $80,000 was stolen, approximately $34,000 in damage was caused, and the secretary manager's car (valued at $30,000) was deliberately set alight to destroy evidence.
The September 2011 offending involved a separate assault with intent, again committed in company, this time in Sydney. A co-accused in that matter remained before the courts with a trial pending at the time of sentencing, and non-publication orders applied to that co-accused and another co-offender.
Legal Issues
- What was the appropriate sentence for each offence, taking into account the objective seriousness of the conduct, the standard non-parole periods, and the limited guilty plea discount?
- How should the principle of parity apply, given the sentences imposed on co-offenders including one sentenced in Victoria?
- How should the NSW sentence be structured in relation to an existing Victorian aggregate sentence already being served?
- How should totality be applied across the multiple offences, two separate indictments, and the form 1 matter (the destruction of the car by fire)?
- Was partial accumulation of the NSW sentence on the Victorian sentence appropriate?
Decision
His Honour imposed an aggregate sentence of 14 years and 3 months, with a non-parole period of 9 years and 6 months, commencing on 31 October 2019. That commencement date was set 8 years after the Victorian sentence had commenced, reflecting partial accumulation on that prior sentence. The overall combined effect of the Victorian and NSW sentences was a total term of 22 years and 3 months, with an overall non-parole period of 17 and a half years.
On parity, his Honour considered the sentences imposed on co-offenders, including the co-offender who had been sentenced in Victoria. The Victorian sentence was described as considerably shorter. The court applied the principle from R v Todd [1982] that disparity between co-offenders' sentences should be justifiable. His Honour identified a starting point for the shared offending with co-offenders Green and Cosovan of 11 years for the break and enter count, and 9 years each for the detention and two armed robbery counts, before modestly accumulating those to reflect the separate victims and separate episodes.
The guilty pleas attracted a 5% discount, reflecting the late stage at which they were entered. The form 1 matter (intentional destruction of property by fire) was taken into account on the break and enter count, producing a modest upward adjustment to that sentence. His Honour noted the offending was planned, involved weapons, caused significant harm to multiple vulnerable victims, and occurred within a private home as well as a workplace.
Personal circumstances considered in mitigation included the offender's difficult childhood, experiences of sexual abuse, his conduct and rehabilitation efforts while in custody, and the conditions he had experienced in prison. His Honour accepted those matters but concluded that no lesser sentence would adequately reflect the overall criminality.
Orders Made
- The offender was convicted on all offences across both indictments.
- Aggregate sentence of 14 years and 3 months imprisonment imposed, with a non-parole period of 9 years and 6 months.
- Sentence to commence 31 October 2019 (partially accumulated on the Victorian sentence).
- Overall combined non-parole period: 17 years and 6 months; overall combined term: 22 years and 3 months.
- Eligible for release to parole on 30 April 2029; sentence to expire 30 January 2034.
- Form 1 matter (intentional destruction of property by fire, contrary to s 195 Crimes Act) taken into account on Count 1 of Indictment 1.
Key Takeaways
- The District Court applied the parity principle carefully where co-offenders had been sentenced in different jurisdictions, treating the Victorian sentence as a relevant reference point while recognising it was considerably shorter and not determinative.
- Partial accumulation of a NSW sentence on an existing interstate sentence is available and was applied here to reflect the temporal separation of the two bodies of offending.
- Where multiple serious offences involve separate victims and distinct criminal acts within a broader episode, some accumulation between individual sentences is appropriate even within an aggregate sentence structure, to avoid undervaluing the harm caused to each victim.
- A form 1 matter (here, destruction of property by fire) can be taken into account on a related principal count, with the guideline judgment in R v Todd governing the modest upward adjustment this produces rather than creating a discrete sentence.
- A guilty plea entered at a late stage attracts only a limited discount; in this case the court applied 5%, well below the discount available for an early plea.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(3) (specially aggravated break and enter), 86(3) (detain for advantage in company), 97(2) (armed robbery), 97(1) (armed robbery), 195 (intentional destruction of property by fire)
Cases
- Murrell v R [2014] VSCA 337
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 (guideline on form 1 matters)
- R v Todd [1982] 2 NSWLR 517 (parity principle)