The Queen v Murphy[1997] QCA 45

COURT OF APPEAL

FITZGERALD P

McPHERSON JA

DERRINGTON J

CA No 562 of 1996

THE QUEEN

v.

PAUL JOSEPH MURPHY Applicant

BRISBANE

DATE 03/03/97

JUDGMENT

McPHERSON JA:  This is an application for an extension of time within which to apply for leave to appeal against a sentence or sentences imposed in the District Court at Charleville in September 1995.  The overall sentence was one of imprisonment for six years.  It was arrived at in the following way.

On counts 1, 3, 5, 7 and 11, which were five counts of administering a dangerous drug, the sentence was imprisonment for six years.  The same sentence was imposed on count 2, which was indecent assault on a boy consisting of an act of carnal knowledge by anal intercourse; or, in other words, an act of sodomy.  Counts 4 and 6 each charged attempted indecent assaults, and in respect of each of them the sentencing Judge imposed a sentence of imprisonment for nine months.  There were two further counts, 8 and 12, which charged indecent assaults as such, and the sentences imposed there were imprisonment for 18 months in the case of count 8 and for two years in the case of count 12.  Fifty-five days of pre-sentence custody were taken into account.  All these sentences were to be served concurrently.

Appeals against conviction were brought to this Court and were allowed on 2 August 1996 in respect of all offences except count 2, the sodomy conviction.  There was no order for a re-trial in respect of any of the other charges, the applicant being acquitted by decision of the Court of Appeal in respect of each of them.

The appeal brought to this Court did not, it seems, include applications for leave to appeal against sentence. 

Instructions for the institution of such an appeal, or for an extension of time within which to make it, were given by the applicant; but due to some oversight in the Legal Aid Office the time for such applications was allowed to slip by.  It was not until 18 December 1996 that the application now before us was filed.  The rather lengthy delay is, in my opinion, satisfactorily explained in the particular circumstances.  The question, however, is whether the appeal against sentence or application for leave to appeal has genuine prospects of success.  As I have said the nine offences in respect of which verdicts of acquittal were entered on appeal were dealt with by separate sentences all of which were concurrent. 

I find it difficult to believe that, in approaching the sentencing function, the learned trial Judge did not treat the counts in respect of which verdicts of acquittal have been entered as not contributing something to the overall sentence of six years.  It is true that in respect of count 2, the sodomy charge, the applicant was sentenced to six years; and that on one view of it, which I'm inclined to think is the correct view, we must on this occasion consider the matter afresh in the light of events that have taken place.

Sodomy is a serious offence, and there are some features of the commission of this particular instance of it that make it perhaps more serious than others of its kind.  Apart from the offence with which we are now confronted, the applicant has a criminal record free from convictions, or at any rate free from any convictions that are relevant. 

He was, however, a local ambulance brigade officer in the town in which he lived and in which these offences were committed.  He appears to have used opportunities that came to him in his position as ambulance brigade officer to enable him to commit the offences. 

The offence is to be viewed, as it now must be in the light of the Court of Appeal decision, as a single offence.  The complainant was apparently not aware it had happened.  The evidence against the accused in that regard was given by another witness, who was a boy who was watching.  The complainant was asleep at the time as a result of the ingestion of the nitrous oxide which had been supplied by the applicant. 

To that extent, I must say, I consider the offence to be an example of its kind which makes it perhaps more serious than some of others with which we have been concerned.  It is right to say, however, that in the end the complainant, perhaps because he was under the influence of the gas does not seem to have been left with any permanent physical or psychiatric consequences of the offence.

When all matters are taken into account, my inclination is to say that justice would not appear to be done in this case unless some reduction in the sentence resulted after the Court of Appeal's decision, by its verdicts of acquittal, to set aside all but the single offence of sodomy with respect to which the applicant continues to stand convicted.

I would, having regard to that fact rather than perhaps to any other, therefore propose that the course that the Court should now take is to extend the time within which the application against sentence may be heard and determined; grant the application for leave to appeal against sentence; and allow an appeal against sentence to the extent of reducing the sentence imposed with respect to count 2 from six years to five years.

THE PRESIDENT:  I agree.

DERRINGTON J:  I agree.

THE PRESIDENT:  The order will be as indicated by Justice McPherson.