Regina v Murray [2000] NSWCCA 430

New South Wales Court of Criminal Appeal

CITATION : Regina v Murray [2000] NSWCCA 430 FILE NUMBER(S) : CCA 60898/98 HEARING DATE(S) : 8 February 2000 JUDGMENT DATE : 8 February 2000

PARTIES : Regina v Denis Michael Murray JUDGMENT OF : Hulme J at 1,33; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/71/0036 LOWER COURT JUDICIAL Luland DCJ OFFICER :

COUNSEL : Unrepresented (written submissions filed) C K Maxwell QC (Crown) SOLICITORS : In person (Appellant) S E O'Connor(Crown/Respondent) CATCHWORDS : Sentence appeal - one count of indecent assault on a child under 16 by a person in authority, four counts of aggravated indecent assault - overall sentence mimumum term of 18 months with an additional term of 18 months - prior good character - appeal dismissed LEGISLATION CITED : Crimes Act 1900 Regina v Todd [1982] 2 NSWLR 517; CASES CITED: Regina v Stewart (1994) 72 A Crim R 17; R v Fisher (1989) 40 A Crim R 442. DECISION : Appeal Dismissed

IN THE COURT OF CRIMINAL APPEAL CCA60828/98

HULME J CARRUTHERS AJ Tuesday, 8 February 2000 REGINA v Denis Michael MURRAY JUDGMENT 1 HULME J: I will ask Carruthers AJ to deliver the first judgment. 2 CARRUTHERS AJ: The applicant, Denis Michael Murray, seeks leave to appeal against sentences imposed upon him by his Honour Judge Luland QC in the District Court at Wagga Wagga on 15 December 1998 in respect of one count of indecent assault on a child under 16 by a person in authority, and four counts of aggravated indecent assault. 3 The applicant has elected not to be represented before this Court or to be present himself but has filed written submissions. Written submissions have also been filed on behalf of the Crown and no further submissions were put to the court when it assembled this morning to hear the application for leave to appeal. 4 The maximum penalty for the offence of indecent assault is six years penal servitude: see s 61E(1A) Crimes Act, 1900, and the maximum penalty for the offence of aggravated indecent assault is seven years imprisonment: see 61M(1) of the Act. 5 The applicant was sentenced on the one count of indecent assault and three of the counts of aggravated indecent assault to a fixed term of 12 months penal servitude. On the remaining count of aggravated indecent assault he was sentenced to a minimum term of 18 months imprisonment and an additional term of 18 months. A fixed term was ordered to commence on 15 December 1998 and to expire on 14 December 1999. The minimum term of 18 months imprisonment was fixed to commence on 15 December 1998 and to expire on 4 June 2000. The additional term was fixed to commence on 15 June 2000 and to expire on 14 December 2001. 6 The complainant was born on 4 December 1983. The indecent assault on a child under the age of 16 by a person in authority (count 1) which was referred to as a representative count, was committed between 1 January 1989 and 30 November 1990. The aggravated indecent assaults (counts 2 and 3) were committed between 1 May 1991 and 31 January 1992, on 7 February 1992 (count 4); and between 1 January 1992 and 30 September 1995 (count 5). These counts were also referred to as representative counts. 7 The applicant, who is presently aged 58 years, commenced a de facto relationship with the complainant's mother in about 1984. They lived together with interruptions in various country areas of New South Wales. The complainant was nine months old at the time their relationship commenced and she was the child of an earlier relationship of her mother with another man. Her relationship with the applicant produced three sons. 8 His Honour, in his remarks upon sentence, somewhat euphemistically, it may be said described the indecent assaults as "fondlings of the vagina area of the victim with hands, fingers and in addition the prisoner's tongue". They were in fact very serious offences, the detail of which it is not necessary for present purposes to note. The aggravating factors were categorised by his Honour as the tender age of the complainant and the fact that she was under the authority of the applicant at all times. 9 The complainant first raised with her mother in about 1990 the fact of the earlier indecent assaults and consequently her mother separated from the applicant for a period of some six months. However, she recommenced her relationship with him on his promise that the misconduct would cease. Unfortunately that did not occur and the conduct was in fact ongoing for a lengthy period of time. 10 In his remarks on sentence his Honour said, inter alia: "I have been provided with the victim's impact statement and one readily recognises in any event that offences upon children such as these do have a prejudicial effect upon them and an effect that will be long lasting for the victim. She does in the victim impact statement express the relief that the matter is nearing an end and she feels she will be able to get on with her life when it is all over and done with. Well that is no doubt so but the effects of this will remain with her, as is the case with offences such as these." 11 The applicant has no antecedent criminal record, he has a good work record. He admitted, however, that he consumed more alcohol than he should have in his earlier life but did not himself attribute the subject offences to consumption of alcohol. 12 His Honour accepted that he was shameful of his conduct and genuinely remorseful. The applicant expressed the view to an examining psychiatrist, Professor McConaghy, that he had strong feelings for the young child and felt that this at least contributed to the inappropriate sexual behaviour. 13 Professor McConaghy diagnosed the applicant as a paedophile, according to the criteria of psychiatric disorders, but his Honour held that there was no evidence of such behaviour directed towards other young persons. 14 His Honour took into account the following subjective circumstances: the fact that the applicant sought treatment from Professor McConaghy, by way of desensitisation procedures, with some apparent degree of success, and the fact that the applicant has been attending, almost without failure, sessions with the Child Abuse Prevention Service. His Honour had before him a report from Miss Dorothy Ginn in that regard. His Honour said: