R v Murrell

Court of Criminal Appeal (NSW)|2011-10-10|Before: McClellan CJ, Latham J, Harrison J, Clellan CJ

Judgment 1McCLELLAN CJ at CL : I agree with Latham J. 2LATHAM J : The Director of Public Prosecutions appeals against the sentences imposed on the respondent, Aaron Leigh Murrell, on 25 February 2011, in respect of a robbery in company offence (s 97(1) of the Crimes Act 1900) and a count of aggravated break and enter and intimidate whilst armed with an offensive weapon (s 112(2) of the Crimes Act (1900). The former offence carries a maximum penalty of 20 years imprisonment. The latter offence carries a maximum penalty of 20 years imprisonment and carries a standard non parole period of 5 years. 3There were two further offences taken into account on a Form 1 when the respondent was sentenced for the aggravated break and enter. Those two charges consisted of possessing a prohibited drug (a small quantity of methylamphetamine) and possessing equipment to administer a prohibited drug, being a "crack pipe". 4The respondent was sentenced to a non parole period of 2 years and a balance of term of 2 years on the robbery in company charge. Taking into account the offences on the Form 1, the respondent was sentenced on the aggravated break and enter offence to a non parole period of 2 years and 6 months with a balance of term of 3 years and 6 months. The effective non-parole period was 3 years and 6 months with a balance of term of 3 years and 6 months. 5The sentence for the aggravated break and enter offence was accumulated upon the sentence for the robbery offence to the extent of one year. No issue is taken with that exercise of the sentencing discretion. However, there was a degree of concurrency between the aggregated sentences for these offences and sentences which the respondent was already serving for unrelated offences. The Crown takes issue with this aspect of the overall sentence.

The Robbery in Company Offence 6On 5 June 2009, two employees of a company known as STFO Trading were selling home theatre systems and LCD products from the back of a van. In the morning of that day, they drove to Ingleburn shopping centre where they approached the respondent. 7The respondent asked the two men to drive him to his house so he could obtain money for payment. The respondent directed them to a location in Minto. In the course of the journey the respondent spoke on the phone to an unknown person, instructing him to "walk down the street". 8When the van parked in Sutton place, a co-offender, Bazzi, walked over to the van in the middle of the street. The respondent got out of the van and went into nearby premises. On his return, the respondent insisted that the transaction take place further down the street near a park. At this point, the respondent was carrying a black case similar to a CD case. 9The men drove the van to the park as directed. One of the men got out of the van and opened a sliding door. That man and the respondent entered the van, where the respondent produced a small black pistol from the CD case. The respondent pointed the pistol at the victim and told him to get everything out of the van. He also demanded that the victim remove a bracelet. The victim removed a quantity of equipment from the van and placed it on the ground. 10Meanwhile, the co-offender demanded the driver's identification, saying "I know where you live. If you call the cops I'm going to kill you and your family." The respondent told the co-offender to grab the keys but before he could do so, both victims entered the van and accelerated away. The respondent grabbed onto the door frame but was fought off by the passenger and fell from the vehicle. 11The victims immediately reported the matter to police. The respondent's bum bag was found on the front seat of the van. It contained credit cards and a driver's licence in the respondent's name. He was arrested on 5 June 2009 and granted bail the following day. The Aggravated Break and Enter Offence. 12Shortly after midnight on 9 March 2010, three males (including the respondent) forcibly entered residential premises in Austinmeer. The house was occupied by two adults and their two young children. The adult victims woke to the crashing sound of the front door being broken. They were confronted in the bedroom by the three intruders, each armed with weapons, namely, an axe handle, a sledgehammer and a small hammer respectively. The offenders were wearing dark clothing and balaclavas. 13The female victim was slapped by one of the intruders and a demand was made for property. The offenders received $600 in cash and two jewellery boxes. They then demanded the keys to the victims' car. The victims' 10-month-old baby began to cry and the female victim was permitted to collect the child from the bedroom in order to comfort him. At this point, one of the offenders threatened the male victim with the axe handle, saying "you're lucky your baby is here". This conduct constituted the aggravating feature of intimidation. 14The offenders took a laptop computer, an Apple iTouch and a mobile phone. Two of the offenders stood over the victims in the lounge room while the third offender went to the victims' car. Before leaving the house, the land line phone was taken from the wall of the bedroom. 15The next day, the victims' car was found and examined. A receipt dropped by one of the offenders inside the house bore a fingerprint that matched the prints of the respondent. It was a receipt recording a transaction on the respondent's credit union account. 16The respondent was arrested on 2 July 2010. He was in possession of the methylamphetamine and the crack pipe, the subject of the Form 1 offences.

The Respondent's Criminal History and Subjective Circumstances 17The respondent's criminal history commences in 2004 with a driving offence and continues in 2005 and 2006 with property offences. 18In June 2008, the respondent received his first sentence of imprisonment for the offence of take or detain a person with intent to obtain an advantage. A total term of 16 months imprisonment was imposed, including a non parole period of 8 months. The respondent was also sentenced to an aggregate term of 9 months imprisonment for a number of offences, including contravene domestic violence order and offences for which he had previously received suspended sentences, which were breached. These sentences were entirely concurrent with the sentence imposed for the take or detain offence. 19Following the commission of the robbery offence on 5 June 2009, the respondent received the benefit of further suspended terms of imprisonment for 2 offences relating to the introduction of a syringe and a poison into a place of detention. The commission of the break and enter offence on 9 March 2010 constituted a breach of these suspended sentences. 20As a result of the call up on these offences, the respondent received fixed terms of 6 months imprisonment commencing 2 July 2010 and a term of 12 months imprisonment commencing 2 October 2010, including a non parole period of 7 months, for an assault occasioning actual bodily harm offence. 21The judge in the instant matter commenced the sentences on 28 December 2010, that is, 6 months into the sentences the respondent was already serving. This resulted in an effective total sentence of 7 years and 6 months, with a continuous period of custody of 4 years, representing the criminality inherent in the robbery, the detention centre offences, the break and enter, and the assault offence. 22Against this background, it would seem that the respondent has not learnt from past extensions of leniency. This was a factor to which his Honour had regard, but the respondent's personal circumstances over the period of offending from 2008 to 2010, including his youth, played a significant part in the judge's assessment of the respondent's moral culpability. 23The judge noted that the respondent had a dysfunctional upbringing, owing to a level of domestic violence within the home, frequent changes in accommodation, his mother's alcoholism and her departure from the family home when he was about six to eight years old (1993-1995). The respondent had a number of paternal uncles who "were enmeshed in the crime milieu" and who influenced the respondent in the absence of any supervision from his father, principally from the year 2000 onwards, when his father first developed cancer. 24When his mother left the family home, the respondent remained living with his father until his father's death in April 2010. Over the course of his father's illness, there were periods of time when the respondent was largely responsible for his father's care, which was complicated by a brain injury suffered by his father in a motor vehicle accident in 2008. As a result of that accident, his father became aggressive and abusive, rendering the respondent's responsibilities even more onerous. The respondent received the assistance of his aunt in that regard. The respondent's expulsion from high school in year 7 resulted in a limited work history. 25The respondent started using alcohol and cannabis at 14 years of age. By the age of 18 he was using ice on a daily basis and was also abusing steroids, speed and ecstasy. There were some periods of abstinence but the respondent would relapse on a regular basis because of his inability to cope with his father's illness.

The Grounds of Appeal. 26The grounds as filed were :- (1)His Honour erred by finding that the objective seriousness of the aggravated break and enter offence was "just" above the middle of the range of objective seriousness. (2)If the judge was not in error as asserted in ground 1, then the sentence for the aggravated break and enter offence did not adequately reflect the objective seriousness of that offence, nor was it consistent with the judge's finding that the objective seriousness was "just" above the middle of the range of objective seriousness. (3)The judge erred in the extent to which he reduced the non-parole period to reflect the finding of special circumstances. (4)The sentence for the robbery in company offence did not adequately reflect the objective seriousness of that offence. (5)The judge erred in his approach to accumulation and totality. (6)The sentences were manifestly inadequate. 27On the hearing of the appeal, in recognition of the High Court's decision in Muldrock v the Queen [2011] HCA 39, ground 1 was abandoned and ground 2 was amended to :- (2)The sentence for the aggravated break and enter offence did not adequately reflect the objective seriousness of that offence. 28Grounds 2 and 3 were said to be related. That is so, given that ground 3 was argued in terms of the non-parole period failing to reflect the objective gravity of the section 112 (2) offence. 29Ground 4 replicates the complaint in the amended ground 2 in respect of the robbery offence, and maintains that the judge paid inadequate attention to the guideline judgement in Henry. 30Ground 5 also replicates ground 3 in respect of the robbery offence, in that it asserts an excessive degree of partial concurrency of the sentence for the robbery offence with sentences the respondent was already serving. That degree of concurrency produced an effective non-parole period of 8 months for the robbery offence, which, it is said, fails to reflect the objective gravity of that offence. 31Ground 6 claims that each sentence and the aggregate sentence are manifestly inadequate.

The Assessment of the Objective Gravity of an Offence 32Before embarking on a consideration of these grounds, it is necessary to say something about the developments in sentencing law since the High Court's decision in Muldrock v The Queen [2005] HCA ; 228 CLR 357. 33The first observation is that there is no difference in approach to the sentencing exercise as between standard non parole period offences and other offences, save that the standard non parole period for Part 4, Division 1A Crimes (Sentencing Procedure) Act 1999 offences operates as a factor additional to other factors under s 21A of the same Act and additional to the maximum penalty for the offence : Muldrock at [26], 1162 ; R v Koloamatangi [2011] NSWCCA 288 at [10] to[13]. 34That approach consists of :- a complex but unitary (or integrated) process requiring consideration of all relevant factors in quantifying the sentence to be imposed. It is an evaluative assessment "based on indeterminate standards and human judgment": Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [72] (McHugh J). 35Second, as was observed by Johnson J (McClellan CJ at CL agreeing) in Zreika v The Queen [2012] NSWCCA 44 at [45] :- The High Court did not suggest that a conventional assessment of objective offending, according to a scale of seriousness, was to be avoided: R v Koloamatangi at [18]-[19]. 36Further, at [46] and [47] of Zreika :- Assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender: s.3A(a) Crimes (Sentencing Procedure) Act 1999. The judgment of the High Court in Muldrock v The Queen has left somewhat opaque the meaning of the term "objective seriousness": R v Koloamatangi at [19]-[21]. Nevertheless, as subsequent decisions of this Court have stated, it remains part of a sentencing Judge's function to consider the objective gravity of the subject crime and the moral culpability of the offender: Ayshow v R at [39]; Sheen v R at [169]. 37With these principles in mind, I turn to the judge's remarks on sentence and, in particular, his Honour's assessment of the objective gravity of the offences to the extent that those remarks address that factor.

Grounds 4 and 5 : Objective Gravity of the Robbery Offence. 38With respect to the robbery offence, the judge said :- In the court's view he decided to commit the offence shortly after meeting the victims. This was a spontaneous decision, however he then recruited the co-offender to assist him and after arriving at the place where the co-offender joined him, he went into the co-offender's house and emerged with the pistol. He had ample time to withdraw from what he had set in place before actually taking the victims' property. The offence was executed without any indication of professionalism. He claims that he was out of his mind on illicit drugs and suffering emotionally due to his father's illness when he committed this offence. However there is no evidence that he did not know what he was doing and did not fully appreciate the consequences of his conduct when he committed the offence. His drug usage and the reason for it explains but does not excuse his offending. The property with the exception of the bracelet was recovered. ......................................... The offender claims that the gun was only plastic and not real, however he raked the slide at the top of the gun which must have led the victim to believe it was a real weapon. There is no physical contact with the victim. The co-offender demanded the victim's identity and made threats in that context if he went to the police. Whilst the victim and his companion suffered no physical injury, no doubt the incident was very frightening for them. It is not uncommon for a victim of an offence like this to be left with long-term emotional and psychological problems. The presence of two offenders, the gun and the threat means that the Henry guideline has considerable relevance in relation to this matter. However, in the court's view, the victims were not vulnerable. Further, his record is greater than that contemplated by the Henry guideline. In addition, the weapon was not of a type capable of inflicting serious injury. The court has come to this conclusion because of the inability of the prosecution to prove beyond a reasonable doubt that it was a real, as distinct from imitation, weapon. 39Accepting that the respondent was a relatively young man at almost 22 years of age when he committed the robbery and that the Crown could not prove that the weapon was real, the offence nonetheless fell within the guideline of R v Henry & Ors, [1999] NSWCCA 111 as the judge rightly recognised. As the Crown correctly points out, the respondent was in a less favourable position than the theoretical offender in Henry, in that the respondent's criminal history was a significant factor, particularly given that at the time of the robbery offence he was on conditional liberty, having been released on parole on 5 November 2008 for an offence of take and detain for advantage. The respondent was on parole until 5 July 2009. 40That said, it was also correct to take into account the fact that the weapon was not capable of killing or inflicting serious injury, that the offence was unplanned, that the victims were not vulnerable and that the majority of the proceeds of the offence (with the exception of the bracelet) were recovered. These factors allowed for a minor departure from the Henry guideline. 41In addition, it was necessary for the judge to take into account the sentence imposed on the co-offender on 14 May 2010. The co-offender's criminal history was greater than that of the respondent. As against that, the co-offender did not instigate the offence, did not recruit the respondent and was not armed. The co-offender pleaded guilty at an earlier time resulting in a discount of 15% for the utilitarian value of his plea. The co-offender was of a similar age, addicted to drugs and on conditional liberty at the time of the offence. His Honour Judge Toner imposed a sentence of 3 years and 6 months on the co-offender, including a non-parole period of 2 years. 42Having regard to the principle of parity, and the relevant features of the offence that were absent from those nominated by the Court in Henry, the sentence imposed upon the respondent for the robbery offence was well within the proper exercise of the judge's sentencing discretion. The sentence takes adequate account of the objective gravity of the offence, whilst recognizing the constraints arising out of the length of the sentence imposed upon the co-offender. 43Moreover, the sentence must be assessed against the need to integrate all relevant factors, including the respondent's subjective case. On this basis, it could not be said that the sentence is manifestly inadequate. 44Separate considerations arise with respect to Ground 5. The Crown's complaint on this ground is that the effective non-parole period for the robbery offence was reduced to eight months, by virtue of the concurrency of the non-parole period with that fixed for the assault occasioning offence and the commencement of the non-parole period for the break and enter offence on 28 December 2011. 45The Crown cited the following passage from the judgment of the Court in R v MAK & MSK [2006] NSWCCA 381 :- [15] Whenever the Court sentences an offender for multiple offences, including when there are different victims, or sentences an offender who is already serving a sentence after conviction for other offences, it is necessary for the judge to ensure that the aggregation of all of the sentences is a "just and appropriate measure of the total criminality involved" : Postiglione v The Queen (1997) 189 CLR 295 at 307 per McHugh J. [18] A sentencing court must ... take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of discount for multiple offending : R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences. 46What is missing from the cited passage qualifies this statement to a considerable extent :- [15] .............. The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons. [16] The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 at 306: ... the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years my be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences. [17] The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint. 47The critical question therefore is whether the continuous period of 4 years actual custody strikes an adequate balance between the criminality inherent in the robbery, the detention centre offences, the break and enter, and the assault offence on the one hand, and the potential of a lengthy non-parole period to inhibit or destroy the respondent's prospects of rehabilitation, on the other hand. 48That question can only be answered after grounds 2 and 3 are considered.

Grounds 2 and 3 : Objective Gravity of the s 112(2) Offence. 49The judge's assessment of the objective gravity of the break and enter offence included references to the fact that every aggravating factor under s 105A Crimes Act were established on the evidence in connection with the offence, with the exception of one, inflicting actual bodily harm. 50The judge noted that it would have been open to the Crown to have particularised the serious indictable offence as either steal from the person, robbery, robbery in company or armed robbery. His Honour also noted that the victims were vulnerable in the sense that they were in their own home and in bed when the offenders entered, and they had children in the house. Clearly, they would have been terrified, particularly when one child was in close proximity to the offenders and their weapons. Whilst there was no victim impact statement, the judge accepted that victims of offences such as this were often left with long-term emotional and/or psychological problems. Apart from the car, none of the stolen property was recovered. 51On the issue of the respondent's role in the offence, his Honour said :- The offender claims that he just went along with others and the offence was spontaneous. Whilst there is evidence indicating the offence was premeditated, there is no evidence to support a conclusion that the offender instigated the offence or participated in its planning. It is unclear which weapon he carried and therefore it is not possible to identify what role he played in the commission of the offence. However he was one of the trio and was present, participating in the joint criminal enterprise which amounted to a serious home invasion. His intoxication at the time, which was probably related to his mark inability to cope with his father's illness and the demands that that placed on him, explains but does not excuse his offending. 52In the result, the judge assessed the objective gravity of this offence "just above the middle of the range of objective seriousness". Whilst this assessment was undertaken for the purposes of sentencing law as it then stood, it nonetheless indicates that the offence fell towards the upper end of the range signified by the maximum penalty for the offence. It also remains the case that the standard non parole period has some relevance as a guidepost. 53In addition, the offences on the Form 1 required a modest adjustment to the sentence and some account needed to be taken of the fact that the offence was committed whilst the respondent was on two forms of conditional liberty, namely, bail for the robbery offence and the suspended sentences imposed in October 2009. 54The judge determined that all of these factors, and the respondent's subjective case, called for a sentence of 8 years, to which the 25% discount was applied. 55This offence was, in my opinion, a very serious example of an aggravated break and enter offence. The forced invasion of the home in the middle of the night by three armed men, and the terror inflicted on the occupants, in particular a young child, ought be reflected in the sentence, including the non parole period. A sentence of 8 years before the application of the discount, even allowing for the respondent's youth and troubled adolescence, fails to adequately reflect that objective gravity. 56Further, a non parole period of 2 years and 6 months represents half of the standard non parole period. The respondent's subjective case was not so powerful as to warrant such a departure from the statutory proportion, even allowing for a head sentence of 6 years. The extent of that departure demonstrates that insufficient attention was paid to the standard non parole period as a relevant factor. 57I would uphold Grounds 2 and 3 of the appeal. 58It follows that an effective non parole period of 4 years for all of the offences referred to in [47] falls considerably short in terms of the total criminality. Had the non parole period for the break and enter offence appropriately marked the objective gravity of that offence, the Crown may have had no cause for complaint.

Ground 6 : Manifest Inadequacy 59For the above reasons, I do not consider that the Crown has succeeded on this ground with respect to the sentence for the robbery offence. 60The Crown has succeeded on this ground in respect of the sentence imposed for the break and enter offence, although the degree of manifest inadequacy does not constitute an affront to the administration of justice. I would regard a sentence of 10 years, before the application of a 25% discount, as the least capable of reflecting the objective and subjective factors. 61I would also uphold this ground in respect of the aggregate sentence of 7 years and the aggregate non parole period of 3 years and 6 months. Accepting accumulation of the sentence for the break and enter offence upon the robbery offence to the extent of 12 months, an aggregate sentence in the order of 9 years might be regarded as lenient, but not manifestly so.

The Residual Discretion. 62It appears settled that s68A of the Crimes (Sentencing Procedure) Act 1999 removes any consideration on the part of this Court of the distress and anxiety that a respondent to a Crown appeal may feel as a result of facing the double jeopardy of a second sentencing exercise. That circumstance is not a factor in the exercise of the residual discretion not to intervene, but it does not extinguish the residual discretion : Green v The Queen ; Quinn v The Queen [2011] HCA 49 at [26]. 63The majority in the High Court in Green & Quinn stressed that :- The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions ("Crown appeals") under s 5D of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act") is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." [citation omitted] That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. 64Relevant factors in the exercise of the residual discretion include the extent of the manifest inadequacy and the extent of the respondent's progress towards rehabilitation. Where the erroneous sentence is not "gross" or "vast", the imperative to interfere in order to correct the sentence, so that the public's confidence in the administration of justice may be maintained, is not so great. Rehabilitative considerations therefore carry some weight in this case. 65The respondent has, since entering custody, undertaken a number of courses which appear to be capable of providing the respondent, for the first time in his life, with the prospect of gainful employment. He has completed a TAFE course in electronics and started a business administration traineeship. He has also started an IT programme and anticipates that the full course will take approximately 1 year. He has completed two units of a three unit course in occupational health and safety. He is also doing a fitness certificate which will provide him with basic qualifications as a personal trainer. 66The respondent has also undertaken such programmes as are available to him to address his substance abuse and other factors that have predisposed him to offending. He has stable and supportive accommodation available to him on his release with his aunt. 67He will be 28 years of age on his present release date. Any significant increase in the aggregate non parole period will affect the respondent's prospects of obtaining meaningful employment, given that he is presently unable to demonstrate any employment history, even at an unskilled level. 68The respondent's chances of building a normal productive life in the community would not be advanced by imposing a sentence that resulted in his detention beyond the age of 30. 69In the circumstances of this case, I would therefore exercise the residual discretion and dismiss the Crown appeal. 70HARRISON J : I agree with Latham J.

Amendments 30 May 2012 - 1. Against the Coversheet category 'Before', the characters "xx" replaced with "Latham J".2. Against the Coversheet category 'Decision', the characters "xxxx" replaced with "Appeal dismissed". Amended paragraphs: Coversheet 30 May 2012 - Against the Coversheet category 'Before', the following judicial members added: McClellan CJ at CL, Harrison J Amended paragraphs: Coversheet 30 May 2012 - The Coversheet category 'Decision date', mistakenly recorded as "09/04/2012", amended to read as 09/05/2012. Amended paragraphs: Coversheet 30 May 2012 - The Coversheet category 'Decision date', mistakenly recorded as "09/04/2012", amended to read as 09/05/2012. Amended paragraphs: Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2012

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