R v John Michael Murphy

CATCHWORDS: Sentence - aggravated entry with intent to commit a serious indictable offence - aggravating factors where matter is an element of offence - utilitarian value of plea - "special circumstances".

Crimes Act LEGISLATION CITED: Crimes (Sentencing Procedure) Act

R v Berg [2004] NSWCCA 300 R v Davies [2004] NSWCCA 310 R v Day (CCA(NSW) unreported 23 April 1998) CASES CITED: R v Grbin [2004] NSWCCA 220 R v Simpson (2001) 53 NSWLR 704 R v Thomson & Houlton (2000) 49 NSWLR 383

V Lydiard (Crown) COUNSEL: P Hamill SC/ M Avenell (Applicant)

S Kavanagh (Crown) SOLICITORS: Tony Cox (Applicant)

IN THE COURT OF CRIMINAL APPEAL 2005/402

HULME J BARR J BUDDIN J

MONDAY 9 MAY 2005 REGINA v JOHN MICHAEL MURPHY Judgment 1 BUDDIN J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court. The applicant was arraigned upon an indictment charging him with an offence of aggravated break and enter with intent to commit a serious indictable offence, contrary to s 113(2) of the Crimes Act. A jury was empanelled and the trial commenced. Following negotiations between the parties at the close of the Crown case, a fresh indictment was presented. It was in similar terms to the original indictment except that it omitted the element of breaking. The applicant then pleaded guilty to a charge of aggravated entry with intent to commit a serious indictable offence, contrary to s 111(2) of the Crimes Act. 2 The charge to which he pleaded alleged that he "being in company did enter the dwelling house of Blair Rodger and Deborah Evans with intent to commit an indictable offence, namely assault occasioning actual bodily harm, knowing that persons were present, and did therein assault Blair Rodger occasioning to him actual bodily harm, and at the time did use corporal violence on Deborah Evans." 3 The applicant was sentenced to a minimum term of imprisonment of 3 years and 3 months with an overall term of imprisonment of 4 years and 6 months. That sentence was ordered to commence on the day on which it was imposed. As of that date the applicant had served about 5½ months of a minimum term of 9 months which had been imposed upon him for various driving offences. The maximum penalty for the offence to which the applicant pleaded guilty is 14 years imprisonment. 4 The sentencing judge made a number of findings as to the factual basis upon which the applicant was to be sentenced. His Honour did so after having heard from the two victims who gave evidence during the course of the trial, and from the applicant as to those matters which were in dispute. 5 Those factual findings can be shortly stated. The victims had been neighbours of the applicant and his family for about 9 months. The families had had some social interaction, particularly through their children. The applicant formed the belief that Ms Evans had stolen a watch belonging to his daughter from his home, several weeks before the incident giving rise to the charge. The applicant had apparently done nothing about his suspicions. 6 The applicant went out for lunch with his estranged de facto wife and another companion on the day preceding the incident. He arrived home in the early hours of the following morning after an extended period of socialising, which included the consumption of a significant amount of alcohol. Upon his arrival home he discovered that a large tin containing money was missing. He immediately suspected that the money had been stolen by Ms Evans. 7 The applicant saw that the victims' television set was on and he went over to confront them with his suspicions. He was accompanied by his estranged de facto wife. He was met at the door by Ms Evans and he then entered the house. The applicant, who was clearly very angry, then threatened Ms Evans and Mr Rodger in terms which included extremely abusive language. There was then an altercation during the course of which the applicant struck Mr Rodger who, as a consequence, fell to the ground and hit his head. The sentencing judge was not prepared however to conclude that the applicant had struck the first blow. His Honour found that the applicant had "bashed" Mr Rodger occasioning to him actual bodily harm. His Honour found that he had been struck more than once causing injuries to his mouth, his left eye and his forehead. There was photographic evidence which supported those findings. Nor was his Honour prepared to find that Mr Rodger had also "lost teeth" during the course of the assault. 8 It would also appear that Ms Evans was attacked by the applicant's companion. His Honour found that, whilst the "circumstances favour the probability that [the applicant] was in fact engaged in corporal violence on [Ms] Evans", there remained a reasonable doubt in his mind about that issue. 9 Nevertheless, his Honour observed that the other elements of aggravation had been made out, namely that the offence was committed in company and that the applicant knew that there were people present in the house at the time. In fact the incident was apparently witnessed by the two very young children of the victims whom his Honour said "were capable of being terrified and seriously disturbed by the sight of their parents being badly bashed". The sentencing judge also accepted that the offence was neither planned nor organised, but was rather a "spur of the moment activity" prompted by the applicant's belief that Ms Evans had stolen his money tin. 10 His Honour described the offence as being a "very serious one" involving as it did a "quite significant assault on Mr Rodger, in what he was entitled to regard as the sanctity of his own house in the early hours of the morning". 11 The applicant had, as the sentencing judge observed, a very lengthy criminal record dating back to 1969. He had served a number of terms of imprisonment for offences of violence including robbery with striking, indecent assault, buggery, kidnapping, malicious wounding, and common assault. It must be observed that each of those offences had occurred more than 20 years ago. However, since then the applicant had continued to offend and had served sentences for escaping from lawful custody and supplying drugs. In more recent years he had also served several sentences for driving whilst disqualified and for high range PCA. 12 The evidence disclosed that the applicant has six children, whose ages ranged from 6 to 14. The applicant, who was in receipt of a single parent pension, had been the sole carer for the children ever since his former de facto wife had left the family to live in Sydney in July 2000. The family was evicted, shortly after the present offence had been committed, from the Housing Commission home in which they had lived. 13 The evidence disclosed that after the applicant went into custody in respect of the driving offences, the children resided in pairs with three women, who lived within a short distance of each other. Each of those women gave evidence that, in their view, the applicant was a good father. It would appear that the children were being well looked after and that each of the women was prepared to continue looking after them for as long as the applicant remained in custody.

His Honour erred in failing properly to take into account the applicant's subjective circumstances, in particular his sole custody of 6 children, including 3 children under the age of 10 years.

His Honour erred in his approach to s 44 of the Crimes (Sentencing Procedure) Act and in failing to find special circumstances. 14 These Grounds of Appeal were argued together. The submission, when distilled to its essence, was that the sentence which was imposed did not adequately reflect the fact that the applicant was the sole parent of six children, a matter which should, it was contended, have attracted a finding of "special circumstances". 15 The sentencing judge arrived at the following conclusion in respect of this issue: I do not find in the circumstances of his children, being cared for by strangers, that is strangers in the technical sense not being members of the family, a basis for adjusting the proportions set by the sentencing legislation. Nor do I find his prospects of rehabilitation such that an adjustment to those proportions should be made. I have taken those matters into account in setting a minimum term. I have, however, made two attempts to address the situation of the prisoner being in custody on one of those traffic matters since January this year. One of those attempts is a minor adjustment to the proportions of s 44(2) of the Sentencing Procedure Act , and the other is to date the sentences from today rather than at the expiration of the term which he is presently serving. By utilising those two methods, I have sought to keep in some form of proportion the overall time he will spend actually in custody on the one hand, and the overall sentence on the other. There is still some disparity, but in the interests of totality, I have taken those two approaches. 16 In support of the submission that the sentencing judge erred in not finding "special circumstances", the applicant placed particular reliance upon this Court's decision in R v Grbin [2004] NSWCCA 220. In that case there was evidence of a strong bond between the offender and his son, who suffered from autism as well as from other disabilities, and of the importance of that relationship to the son. Dunford J, with whom Levine and Howie JJ agreed, made the following observations: The general rule is that hardship to members of an offender's family is generally irrelevant and can only be taken into account in highly exceptional circumstances, and the care of young children is not normally an exceptional circumstance: R v Edwards (1996) 90 A Crim R 510 at 516 where Gleeson CJ said: "The real difficulty about a case such as the present, as many other cases in which imprisonment of an offender causes hardship to a third party, is to identify a ground upon which they can properly and relevantly be regarded as exceptional. Regrettably, causing hardship to third parties by imprisonment of an offender is only too common."

However, there are cases where having regard to the particular circumstances the case has been held to be exceptional, for example R v Maslen (1995) 79 A Crim R 199 where the child was grossly disabled, and R v Bednarz [2000] NSWCCA 533 where, once again, the child was disabled and it was held that the particular difficulties of the child constituted exceptional circumstances justifying a finding of special circumstances and reduction in the non-parole period.

His Honour accepted the medical evidence in relation to the son's condition and referred to the fact that it is only in a case of exceptional circumstances that a crime of this nature can go unpunished by a full-time custodial sentence, but said that he found no such exceptional circumstances existed here and made no specific reference to special circumstances although the issue had been raised in submission.

In my view, the circumstances here were not sufficiently exceptional to justify a non-custodial sentence, I consider that it was sufficiently exceptional to justify some consideration being given to it, and a suitable case to justify a finding of special circumstances.

As I say, his Honour did not refer specifically to special circumstances, and although there is no obligation to do so, R v Simpson (2001) 53 NSWLR 704, it is desirable that judges at first instance do refer specifically to whether they have considered special circumstances, whether they find them established, and if so, whether or not they find such special circumstances sufficient to justify a variation of the ratio referred to in s 44(2): R v Brindley (1993) 66 A Crim R 204.

As I say in this case I consider that the son's condition, and the need for his father's assistance in his supervision and management constituted an exceptional circumstance such as to justify a finding of special circumstances and a reduction in what would otherwise have been the non-parole period. (paras 28-33) 17 The applicant contended that, by analogy, this was a case which required a finding of "special circumstances", particularly as some of the children were clearly adversely affected by having their father in custody. That was manifested in behavioural problems which some of them were displaying. 18 In R v Simpson (2001) 53 NSWLR 704, Spigelman CJ said that "[t]here are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive." 19 Clearly there was material before the sentencing judge which would have enabled his Honour to have made a finding of "special circumstances". Nevertheless, whilst arrangements for the care of children were not optimal, there was nothing to suggest that they were in any way unsatisfactory. The children were all living within 100 metres of each other and were able to see each other on a daily basis. Nor did any of the children have a significant disability or illness which required special care and nor was any of them still an infant: See generally, R v Day (CCA(NSW), unrep, 23 April 1998). It is obviously most regrettable that the family had been disrupted by the applicant's incarceration, but I am not persuaded that it has been demonstrated that his Honour fell into error of the kind which was asserted. 20 In any event, notwithstanding the family circumstances, the applicant had continued to offend and was, as I have said, at the time when he stood for sentence in respect of this matter, already serving a sentence for other offences. Finally, as the sentencing judge observed, there had been some measure of leniency extended to the applicant, particularly insofar as the minimum term was ordered to run concurrently with the pre-existing sentence for a period in excess of 3 months. 21 I would dismiss these two Grounds of Appeal.

His Honour erred in treating the injuries and emotional harm done to the victim as aggravating factors. 22 Section 21A of the Crimes (Sentencing Procedure) Act requires a court in determining an appropriate sentence to take into account various aggravating and mitigating factors. One such factor is the "injury, emotional harm, loss or damage caused by the offence". If it is found to be "substantial" then, pursuant to s 21A(2)(g), it is an aggravating factor. Conversely, if it was "not substantial" then it becomes a mitigating factor: See s 21A(3)(a). His Honour concluded that "having regard to the evidence given by Ms Evans and Mr Rodger, [I find] that the emotional harm was indeed substantial, and the injury was not insubstantial in their cases. That falls more on the side of being an aggravating factor then being an ameliorating one". 23 A number of complaints are made in respect of those findings. First, it is submitted that his Honour erred in taking into account the physical injury to Mr Rodger as an aggravating factor. It was submitted that because the injury was an element of the offence of assault occasioning actual bodily harm, the sentencing judge had contravened the injunction contained in s 21A(2) of the Act, which provides that the court "is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence". The respondent concedes that error has been thus established: See R v Berg [2004] NSWCCA 300; R v Davis [2004] NSWCCA 310. 24 Secondly, it was submitted that the sentencing judge was in error in taking into account the physical injury to Ms Evans in view of his finding that he could not be satisfied beyond reasonable doubt that corporal violence had been occasioned to her by the applicant. It is true that Ms Evans sustained some injury, albeit that the sentencing judge was sceptical as to the extent of it. As I have said, his Honour was not prepared to accept, to the requisite standard, that the applicant had physically injured Ms Evans. The injuries which his Honour found to have been sustained by her had been inflicted by the applicant's former de facto spouse. Furthermore, as his Honour observed, the case against the applicant was not founded upon a joint criminal enterprise. 25 Accordingly, in those circumstances I am persuaded that the applicant has established that the sentencing judge also erred, in light of his earlier finding in having regard to the physical injury sustained by Ms Evans as an aggravating factor on the part of the applicant. 26 Finally, it was submitted that the sentencing judge had erred in concluding that the emotional harm which the victim had suffered was "substantial". This finding was said to sit uneasily with his Honour's findings that the victims had "gilded the lily" in describing the extent of their physical injuries. In the final analysis, I am not persuaded that this particular finding was not open to the sentencing judge in the light of all the material which was in evidence, including what was contained in the Victim Impact Statement, which was not the subject of any challenge.

His Honour erred in his approach to the applicant's plea of guilty and remorse and failed to give an adequate discount (or mitigation) for these matters. 27 His Honour made the following findings concerning the discount which was to be extended to the applicant on account of his pleas of guilty: I should record that in terms of the utilitarian value of his plea, I regard this as the bottom of the range really. It came at the completion of the Crown case, came despite an earlier offer as I have already indicated of lesser charges, and it is accompanied in any event by a full dress hearing on sentence, which does not seem to have brought about any effective saving in time anyway. However, in order to ensure that the idea of pleading guilty is promoted as a sensible course, I propose to allow a ten percent deduction from the sentence I would otherwise have regarded as appropriate. That ten percent is readily identifiable in the figures which I am about to announce. 28 His Honour also specifically declined to allow the applicant any discount for remorse. 29 As I have said, the applicant pleaded guilty at the conclusion of the Crown case in the circumstances to which I earlier referred. As I also earlier observed, the applicant gave evidence at the sentencing hearing in which he put in issue a number of matters upon which the Crown relied. He was clearly entitled to do so, particularly since the sentencing judge resolved nearly all of those issues in his favour. 30 The applicant's complaint is that the sentencing judge erred in not allowing a greater discount for the plea of guilty and for the remorse which he had expressed during the course of his evidence. It was submitted that the sentencing judge ought to have had greater regard to the circumstances in which the plea was entered in assessing its utilitarian value and particularly its timeliness. It was common ground at the sentencing hearing that the Crown had offered to accept pleas to one count of assault occasioning actual harm in company upon Mr Rodger (an offence which attracts a maximum of 7 years imprisonment) and one count of common assault upon Ms Evans (an offence which attracts a maximum of 5 years imprisonment). The applicant declined the offer on the basis that he had not assaulted Ms Evans, even though the offence to which he ultimately pleaded guilty carried a maximum penalty of 14 years imprisonment. In fact it was the applicant's determination, in those somewhat unusual circumstances, to deny any involvement in the assault upon Ms Evans, that prompted the sentencing judge to conclude that that aspect of the matter had not been established beyond reasonable doubt. 31 The circumstances which gave rise to the entry of the plea were, as I have said, most unusual. They disclose that the applicant was prepared, and did in fact enter a plea, to an offence which attracted a higher maximum penalty than the aggregate maximum penalty for the two offences in respect of which an offer had been made by the Crown. He was entitled to reject that offer, particularly in view of his Honour's finding in respect of the allegation that he had visited corporal violence upon Ms Evans. Moreover, the fact that the Crown was prepared to accept that it could not prove the element of breaking was a not insignificant factor for sentencing purposes. 32 In those circumstances I am of the view that the utilitarian value of the plea, coupled with the remorse which was implicit in it and the contrition which the applicant expressed in the witness box, ought to have attracted a rather more generous discount than the 10% which was allowed by the sentencing judge, a discount which is right at the bottom of the range identified in R v Thomson & Houlton (2000) 49 NSWLR 383. This Ground of Appeal has been made good.

Conclusion 33 I have reached the conclusion that it is appropriate, in view of the fact that the applicant has succeeded in respect of each of Grounds 3 and 4, for this Court to intervene and re-sentence the applicant. Given my view, it is unnecessary to deal with the applicant's submission that the sentence was, in any event, manifestly excessive. Nor is it necessary to deal with a ground which asserted that his Honour had given insufficient weight to the fact that the applicant had not committed any offence of violence for many years, part of which period coincided with his assuming responsibility as a parent. That matter will however take its place in the re-sentencing exercise. 34 In re-sentencing the applicant, I have had regard to those aspects of the objective criminality displayed by the applicant which may properly be taken into account for the purposes of sentence, together with those factors which ameliorate the otherwise appropriate sentence. I have also had regard to the additional affidavit evidence which was relied upon by the applicant. 35 I propose the following orders:

3 Quash the sentence imposed in the District Court.

4 In lieu thereof sentence the applicant to a non-parole period of 2 years to date from 24 June 2004. The overall sentence will be one of 2 years 8 months which will expire on 23 February 2007.

5 The applicant be released on parole on 23 June 2006. 36 HULME J: I agree with the orders proposed by Buddin J and generally with his Honour's reasons for them. However, there are a couple of matters mentioned by his Honour in respect of which I have reached a contrary conclusion. It does not seem to me that the evidence justified a finding that the assault had occurred in the presence of the victims' children. It is legitimate to infer to the requisite standard that the children were in the house at the time and it is clear that they were in the victims' presence soon afterwards. However, I do not think it possible to reach the conclusion that the assault occurred while the children were present.

37 I am also of the view that the harm which was suffered by the victim was "not substantial". Certainly it was appreciable, and minds may differ as to the operation to be given to the description 'substantial', but I would take the view it did not fall into that category. That said, the applicant has displayed a continued unwillingness to accept a number of the rules set for the orderly operation of society, and I agree with the orders proposed.

39 HULME J: The orders of the Court will be as outlined by Buddin J with the slight variation that we would be obliged to direct the release of the applicant on parole at the expiration of the non parole period. **********

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