Murray v R [2015] NSWCCA 75

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Murray v R [2015] NSWCCA 75 Hearing dates: 14 April 2015 Decision date: 27 April 2015 Before: Basten JA at [1]; Simpson J at [32]; Adamson J at [34] Decision: (1)Grant the applicant leave to appeal against the sentence imposed upon him in the District Court on 7 August 2013.

(2)Allow the appeal and set aside the sentence imposed by the District Court on 7 August 2013 at Wollongong.

(3)Remit the matter to the District Court for sentencing the offender, according to law. Catchwords: APPEAL – reasonable apprehension of bias – sentencing – appeal against sentence – shoot with intent to cause grievous bodily harm – guilty plea entered – applicant previously found not guilty by jury for another serious offence – sentencing judge expressed firm view as to applicant's guilt in previous proceedings – application for recusal rejected – whether the judge should have recused himself for apprehended bias

APPEAL – sentencing – appeal against sentence – shoot with intent to cause grievous bodily harm – guilty plea on first day of trial – conviction entered – parties proceed on the assumption of utilitarian discount on sentence – no discount awarded – whether lack of notice that no discount will be given constituted denial of procedural fairness

APPEAL – sentence appeal – where sentence affected by apprehended bias – whether such decision a nullity – whether invalid order of inferior court can be subject of appeal – whether remittal or re-sentencing appropriate Legislation Cited: Crimes Act 1900 (NSW), s 33A Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Criminal Appeal Act 1912 (NSW), ss 5, 6, 12 Cases Cited: British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 Calvin v Carr [1980] AC 574 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Lee v The Queen [2014] HCA 20; 308 ALR 252 Michael Wilson & Partners Pty Ltd v Nicholls [2011] HCA 48; 244 CLR 427 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 State of New South Wales v Kable [2013] HCA 26; 87 ALJR 737 Category: Principal judgment Parties: Adam Scott Murray (Applicant) Regina (Respondent) Representation: Counsel: Mr T Gartelmann (Applicant) Ms G O'Rourke (Respondent)