R v MURRAY [2003] NSWCCA 116

New South Wales Court of Criminal Appeal

CITATION : R v MURRAY [2003] NSWCCA 116 HEARING DATE(S) : 2 May 2003 JUDGMENT DATE : 2 May 2003

JUDGMENT OF : Levine J at 1; Simpson J at 18 DECISION : Leave to appeal granted. Appeal dismissed.

CATCHWORDS : Parity REGINA (Respondent)

PARTIES : v

WILLIAM MURRAY (Applicant) FILE NUMBER(S) : CCA 60349 of 2002 Applicant - in person COUNSEL : DM Howard (Respondent) Applicant - in person SOLICITORS : SE O'Connor (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0023 FILE NUMBER(S) : LOWER COURT Kinchington DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60349 of 2002

LEVINE J SIMPSON J

FRIDAY 2 MAY 2003 REGINA v WILLIAM MURRAY Judgment 1 LEVINE J: The applicant, William John Murray, who was born on 21 December 1980, seeks leave of this Court to appeal against sentences imposed upon him on 24 May last year in the District Court by Judge Kinchington. Mr Murray is unrepresented. 2 He was sentenced by Judge Kinchington in relation to the following matters: a charge of robbery in company committed on 10 July 2001; a second count of using an offensive weapon to prevent lawful detention, an offence committed on 27 July 2001; a third offence of stealing from a person committed on 2 September 2001. Those offences carry respectively maximum penalties of 20, 12 and 14 years. 3 Judge Kinchington also dealt with Mr Murray in connection with 15 other matters in what is known as a Form 1, the details of which I will later set out but they included driving in a manner dangerous, malicious damage, assaulting police, taking and driving a conveyance, driving whilst unlicensed, resisting officers and assaulting officers and taking and driving conveyance without consent. 4 The penalties imposed by his Honour were in relation to the first count robbery in company, and was four years and nine months with a non-parole period of two years and nine months commencing on 2 September 2001. In relation to the second offence, the use of the offensive weapon, his Honour imposed a fixed term of imprisonment for one year to commence on 2 September and in relation to the third he imposed a fixed term of imprisonment for 18 months to commence on 2 September 2001. It was in relation to the robbery in company matter that his Honour took into account the 15 other matters on the Form 1. 5 By a communication with this Court of 20 February this year, the applicant makes it clear that his complaint is that compared to his co-offender, Louie West, he received a sentence in the end that he characterises as unfair compared to that imposed upon Louie West by Judge Shillington, in fact a week after the applicant himself was sentenced, namely 31 May 2002. 6 Unlike Mr West who was dealt with only for the one offence with no Form 1 matters taken into account, the applicant was dealt with for robbery in company, as I have said, and the other two counts and the 15 matters on the Form 1. It is to be noted that the 15 other matters were made up essentially of eight matters connected with the circumstances in which he avoided apprehension for the robbery in company offence. Of the remaining seven, six related to the circumstances of his arrest on 2 September 2001. 7 The facts are these. The applicant and the co-offender, West, robbed a female shop attendant at the UTS Union Newsagency at about 7 o'clock in the morning. It was the applicant who approached the lady there, pretending to buy a newspaper. After the till was opened, the co-offender West entered the shop, shut the roller door to the shop and whilst in there with this applicant, ordered the lady to sit in a corner while they stole money, phone cards and other property. It was West who pulled the telephone off the wall. It was this applicant who took money from the till and items out of the safe. The victim stated that she thought she might have been killed. 8 When approached by the police about two and a half weeks later, the applicant avoided arrest by driving a vehicle at speed directly at a number of police officers trying to arrest him, that is the second charge. The dangerous manner in which he drove off was such that he collided with two other vehicles, the driver of one sustaining injury. He made good his escape and was not in fact apprehended until 2 September 2001 when he was arrested after another flight from police shortly after he committed the further offence of steal from a person, the subject of the third charge dealt with by Judge Kinchington. 9 The sentences that Judge Kinchington imposed in relation to the second and third charges were effectively subsumed within the term of the sentence for the offence of robbery in company. It is clear to me that Judge Kinchington did have regard to a very important factor in dealing with the sentencing exercise of this kind, namely the critical one of totality. 10 Judge Shillington, who dealt with West, also took that into account in sentencing West to three years and six months with a non-parole period of one year and six months. 11 Looking at the whole picture, it is quite clear to me that the criminality of the applicant for which he was sentenced by Judge Kinchington was in excess of the criminality of the co-offender, West, which had to be dealt with by Judge Shillington. The seriousness of the matters on Form 1, 15 of them, warranted that the applicant should receive a significantly longer sentence than West. Another important factor is that the applicant was on a two-year bond which had been imposed on 7 January, 2000 in respect of larceny offences, steal from the person and having custody of an offensive implement in a public place. 12 Judge Kinchington was sensitive to the subjective or personal matters involving the applicant and acknowledged that the applicant had shown a genuine resolve to overcome the drug habit that played a major role in the crimes. He took into account how young he was, the broken and difficult home life and upbringing, the illiteracy, the incomplete education and all those matters which reflect the severe disadvantages of the applicant as have been referred to from time to time in other cases in this Court. 13 His Honour was impressed by the evidence given by his grandmother, Mrs Murray. His Honour found special circumstances and varied the proportion of the non-parole period significantly. He discounted the sentence by 25 per cent because of the applicant's early plea. 14 As I have said, he took into account properly so, and in a fair and principled way, the strong subjective material including the applicant's written apology to the victim. Equally importantly, his Honour gave due weight to the applicant's rehabilitation prospects but felt in the end constrained to impose the sentences he did because of how serious the offences with which he was concerned were, all of them. 15 Given the difference, if you just look at the figures between Mr West's sentence and Mr Murray's sentence, there is a stark difference and for myself I can understand that Mr Murray might feel aggrieved by it if he focuses only on the robbery in company. But when one looks at all the other matters that Judge Kinchington had to take into account and did, compared with the one matter that Judge Shillington had to deal with, whilst the sense of grievance might well exist, it is not, as far as the law is concerned, and in the particular circumstances of this case, one which as a matter of law, is justifiable. There were clearly differences between this applicant's position and that of Mr West. The ground, which is known as parity, has not been made out and otherwise the sentences imposed by Judge Kinchington are not erroneous given the criminality involved and given that his Honour did give particular weight to the subjective circumstances. 16 I note that Mr Murray has suffered, since his sentence, a loss of his grandmother which is a matter of natural human concern, but within the ambit of how we go about deciding these cases, we look at what has happened, how his Honour dealt with it, and whilst not ignoring that sad event, in the end the situation does not warrant a change or intervention. 17 I would propose that leave to appeal be granted but that the appeal be dismissed. 18 SIMPSON J: I agree. 19 LEVINE J: The order will be as I have proposed. **********