AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 7 July 2023

R v Murdoch

[2023] NSWSC 786

Assault & violenceTheft & property
CRIME SENTENCE OFFENDER FOUND GUILTY AFTER TRIAL RELATIVE YOUTH OF OFFENDER PROSPECTS OF REHABILITATION

Citation: R v Murdoch [2023] NSWSC 786
Court: Supreme Court of NSW
Date: 7 July 2023
Judge: Wright J

Background

The offender was tried on an indictment containing three counts: assault with intent to rob while in company and armed with a dangerous weapon, murder, and entering a dwelling house with intent to intimidate in circumstances of special aggravation (being in company and armed with a dangerous weapon). The jury acquitted him on all three counts but found him guilty of the statutory alternative to the third count: entering a dwelling house with intent to intimidate in circumstances of aggravation, namely being in company, contrary to s 111(2) of the Crimes Act 1900 (NSW).

The offending occurred in the early hours of 24 May 2020 at a residential property in Riverstone, NSW. The offender, then a young person, travelled with four others to the address in a car driven without headlights. All five had the lower halves of their faces covered. The group forced their way through the front door after a resident opened it, and several members of the group assaulted and robbed occupants inside the house. The jury's verdict required the court to find that the offender did not know that one of the group, DPD, was carrying a shortened rifle at the time of entry.

The sentencing hearing addressed the appropriate penalty for the offence of which the offender stood convicted, taking into account his relative youth, his prospects of rehabilitation, parity with a co-offender, and the time already spent in custody.

  • What sentence was appropriate for the offence of entering a dwelling house with intent to intimidate in company, having regard to the jury's verdict and the facts properly available to the sentencing court?
  • What findings of fact could be made consistently with the jury's verdict, and what standard of proof applied to those findings?
  • How should the offender's relative youth and prospects of rehabilitation affect the sentence?
  • Was parity with a co-offender a significant consideration in the circumstances?
  • Was it appropriate to decline to set a non-parole period given the time already served in custody?

Decision

Wright J identified the relevant facts consistently with the jury's verdict. Facts found against the offender required proof beyond reasonable doubt, while facts found in his favour required only proof on the balance of probabilities. On the facts agreed between the Crown and the defence, the court found that the offender participated in a coordinated, pre-planned entry into an occupied home in the early hours of the morning, with the group acting to intimidate a resident over a prior dispute. The jury's verdict required a finding that the offender was unaware the rifle constituted a dangerous weapon at the point of entry.

The offender's relative youth at the time of the offending was a significant mitigating factor. The court treated rehabilitation as a weighty consideration given his age, and assessed his prospects of rehabilitation as meaningful. The absence of a guilty plea meant the offender received no discount for that factor, having been found guilty after trial.

The maximum penalty for the offence is 14 years' imprisonment. There is no standard non-parole period for s 111(2). The court treated the maximum as a legislative guidepost in calibrating the sentence. Parity with the co-offender was not considered a significant factor in the particular circumstances of this case.

The court imposed a fixed term of 3 years' imprisonment. Because the sentence had already expired by the time of sentencing and the term was less than the time the offender had spent in custody attributable to the offending, Wright J declined to set a non-parole period, exercising the discretion available under s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Orders Made

  • The back-up offence of having a face disguised with intent to commit an indictable offence (contrary to s 114(1)(c) of the Crimes Act 1900 (NSW)) was dismissed pursuant to s 167(1)(a) of the Criminal Procedure Act 1986 (NSW).
  • The offender was sentenced to a fixed term of imprisonment of 3 years for the offence of entering a dwelling house with intent to commit a serious indictable offence (intimidation) in circumstances of aggravation (being in company), contrary to s 111(2) of the Crimes Act 1900 (NSW), commencing 4 June 2020 and expiring 3 June 2023.
  • No non-parole period was set.

Key Takeaways

  • Where a jury acquits on a principal count but convicts on a statutory alternative, the sentencing court must make findings of fact consistent with that verdict; facts adverse to the offender must be proved beyond reasonable doubt, while favourable facts need only be established on the balance of probabilities.
  • The relative youth of an offender at the time of the offending is a significant mitigating factor, and rehabilitation carries considerable weight in sentencing young offenders.
  • Parity with a co-offender is not automatically a governing consideration; the court may give it limited weight where the circumstances of the individual offender's case warrant a different approach.
  • Under s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may decline to set a non-parole period where the sentence term is less than the pre-sentence custody already served by the offender.
  • A back-up offence on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) must be dismissed under s 167(1)(a) once the offender is convicted of the related principal offence, unless circumstances render that course inappropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(2), 111(3), 114(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)-(3), 44, 45, Pt 3 Div 2
- Criminal Procedure Act 1986 (NSW), ss 166, 167(1)(a)
- Bail Act 2013 (NSW), s 49
- Children (Criminal Proceedings) Act 1987 (NSW), s 15

Cases
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Martinez v The Queen [2022] NSWCCA 12
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Carreno v R [2023] NSWCCA 20
- Howard v R [2019] NSWCCA 109