Regina v Eric Leonard MURRAY [2000] NSWCCA 159

New South Wales Court of Criminal Appeal

CITATION : Regina v Eric Leonard MURRAY [2000] NSWCCA 159 FILE NUMBER(S) : CCA 60779/99 HEARING DATE(S) : 3rd May 2000 JUDGMENT DATE : 3 May 2000

PARTIES : Regina v Eric Leonard Murray JUDGMENT OF : Hulme J at 1 & 25; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0751 LOWER COURT JUDICIAL McGuire DCJ OFFICER :

COUNSEL : P Bryne SC - Applicant P G Berman - Crown SOLICITORS : Horowitz and Bilinsky - Applicant S E O'Connor - Crown CATCHWORDS : Criminal law - sentence appeal against severity - relevance of fact that matters could have been dealt with in the Local Court - applicant aged 68 - in poor health. Crimes Act 1900 ss 97(1), 188 LEGISLATION CITED : Firearms Act 1996 s 62(1)(b) Sentencing Act 1989 s 25A CASES CITED: Thurgar (1990) 51 A Crim R 109 DECISION : Application for leave to appeal granted. Application dismissed.

IN THE COURT OF CRIMINAL APPEAL 60779/99

HULME J CARRUTHERS AJ Wednesday 3 May 2000

REGINA v Eric Leonard MURRAY

JUDGMENT

1 HULME J: In this matter the court is in a position to give judgment and I will ask Carruthers AJ to give the first judgment. 2 CARRUTHERS AJ: Eric Leonard Murray seeks leave to appeal against sentences imposed upon him by McGuire DCJ in the Sydney District Court on 25 November 1999. 3 On that occasion the applicant pleaded guilty to an indictment containing one count under s 188 of the Crimes Act 1900, - receiving, which carries a maximum penalty of penal servitude for ten years. 4 There was a second count, firstly, of armed robbery under s 97 (1) of the Crimes Act with an alternative second count of receiving. 5 The applicant pleaded guilty to the receiving count and the Crown accepted that plea in full discharge of the second count. He also pleaded guilty to two counts, namely 3 and 4 under s 62 (1) (b) of the Firearms Act 1996, commonly referred to as "possession of shortened firearm", which carries a maximum penalty of ten years penal servitude. 6 In relation to each of counts 3 and 4, his Honour sentenced the applicant to a minimum term of two years imprisonment to commence on 25 November 1999 and to expire on 24 November 2001. In relation to each of counts 1 and 2 his Honour sentenced the applicant to a minimum term of 12 months imprisonment to commence on 25 November 2001 and expire on 24 November 2002, with an additional term of 18 months to commence on 25 November 2002 and expire on 24 May 2004. 7 The applicant was born on 3 April 1931 and was accordingly 68 years of age at the date of sentence. Before I turn to the facts relating to the subject matters I shall deal briefly with his subjective circumstances. 8 His prior criminal record contains eighteen entries culminating with a fine for theft on 13 November 1975. He came from what would now be referred to as a dysfunctional family and received little formal education or training. He spent some time employed as a bell boy, then barman and then ship's steward on the Australian coast and subsequently he was employed in some capacity on the wharves. In more recent years his employment has been intermittent. 9 He has been married to his present wife for some 45 years. She has experienced continuing health problems. The applicant suffered from severe meningitis as a boy. At an early age, when he worked as a paper boy on the trams, he occasioned a severe head injury with considerable laceration of the face requiring restorative surgery to his left arm with major facial scaring. Psychometric assessment indicated diminished cognitive skills which may be due to the head injury and the meningitis. About four years ago the applicant suffered a heart attack. He presently suffers from both circulatory and gastrointestinal disease with periods of internal bleeding. 10 He has an occlusion of his carotid artery which increases his risk of stroke. He also suffers from ulcers. Psychometric testing in November 1999 demonstrated that he was suffering from severe depression. A medical report indicates that he requires ongoing supervision and medication for his heart and his gastrointestinal condition. Both conditions are significant and require ongoing medical management and supervision. 11 I turn then to the relevant facts which may conveniently be taken from the statement of facts before his Honour under the hand of Detective Senior Constable Justin Hallett of 25 November 1999. This statement which was adopted by McGuire DCJ in his remarks on sentence is in the following terms: " COUNT 1