R v Murphy[2023] QCA 98

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Flanagan JA and with the orders proposed by his Honour.
2. [2]
   FLANAGAN JA:  On 6 December 2022, the applicant pleaded guilty to one count of entering a dwelling and unlawfully depriving the complainant of her personal liberty (Count 1), three counts of common assault (Counts 2 – 4) and one summary offence of indecent act.  For Count 1 the applicant was sentenced to imprisonment for three and a half years.  For each of the common assault counts he was sentenced to imprisonment for eight months which was ordered to be served concurrently with the sentence imposed for Count 1.  He was convicted but not further punished in relation to the summary offence.  The learned sentencing judge, pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), declared that 377 days spent in pre-sentence custody between 24 November 2021 and 5 December 2022 be deemed time already served under the sentence.  The applicant’s parole eligibility date was fixed at 6 December 2022.  The applicant applies for leave to appeal and seeks to rely on the following two grounds:

1. The sentence imposed was manifestly excessive.
2. The sentencing judge erred in imposing concurrent sentences of imprisonment for each of counts 2, 3 and 4.

Factual background

3. [3]
   On the night of 20 November 2021, the complainant, who was 16 at the time, was at home watching television in her bedroom.  At about 10.15 pm she heard voices in the dining room and went to investigate.  She could hear the sound of a light switch turning on and off.  As she approached the dining room she observed the applicant standing in the dark in the living room.  According to the complainant’s victim impact statement, the applicant had entered the house through the back door which the complainant had left open for her cat.
4. [4]
   The applicant was shirtless.  He walked up to the complainant and grabbed her wrists (Count 2).  He told the complainant that the police were outside and that she needed to help him.  He ushered her down the hall towards her bedroom and asked her to switch off the lights and sit down on the bed.  He told the complainant that she needed to hide because “they are out there”.  At this time the applicant was sitting on the floor and the complainant moved to also sit on the floor with the applicant.  He told her however to sit at the end of the bed closest to him.  He said “it’s okay mate, it’s okay” and put his hand on the complainant’s thigh above her knees.  He looked at the complainant in the eye and said “you don’t need to be scared, I’m not that person.  I’m not going to do anything to you.”  He then stood up and pulled down his pants exposing his penis to the complainant (summary offence).  He placed his hand around his penis and said “if I wanted to rape you, I would have done it by now.”  Thereafter he pulled his pants up and grabbed the complainant by the wrists saying “it’s okay, I’m not going rape you.  You’re beautiful though.”
5. [5]
   The complainant asked the applicant if he wanted to call the police to which he replied “no”.  He told the complainant to put her phone down.  She placed her phone on the bed.  The applicant told her to get up and he pulled her by her wrists down the hallway into the dining room (Count 3).  He instructed the complainant to sit at the dining room table and he sat opposite her and started to tell her stories that did not make sense.  He asked for some water which the complainant obtained for him.  The applicant complained that the water was not cold enough and he went into the kitchen to look for some ice.  The complainant stated that she needed to go to the toilet and took the opportunity to retrieve her phone from the bedroom.  She went into the bathroom and sent a series of text messages to her mother.  She then returned to the dining room.
6. [6]
   The applicant had obtained a tub of ice-cream from the freezer which he took outside on the porch.  He asked the complainant a number of questions about herself.  The applicant was mumbling and the complainant asked him to repeat what he had said to which he suddenly put his face close to her face and said “you’re stupid, you’re messed up in the head.”  He stood up and pulled the complainant out of her seat by her wrists and instructed her to shut the back door but the complainant refused.  The complainant walked inside and the applicant followed her still holding onto her wrists (Count 4).  He began dragging the complainant to the front door of the house.  The complainant opened the front door trying to get the attention of a neighbour.  The applicant said “what are you doing?  Don’t run away”.  The complainant said that she was not going to run, and the applicant replied, “bitch, I know what you’re doing”.  Again he placed his face close to the complainant’s face and yelled at her.  The complainant managed to get back inside the house but the applicant opened the door.  He was speaking nonsense to her.
7. [7]
   The complainant received a call on her mobile phone from her mother which she answered and while speaking with her mother she managed to shut the front door and lock the applicant outside.  The applicant walked away from the house.
8. [8]
   In the agreed statement of facts, the Crown particularised the allegation of deprivation of liberty in relation to Count 1 as follows:

“The Crown proceeds on the basis that the defendant unlawfully deprived the complainant of her liberty by disabling her ability to move freely around her home and leave her home.  The defendant did this by holding the complainant at the wrists and directing her to where he wanted her to go through the house, at some points pulling and dragging her, and telling the complainant not to leave the home in a threatening manner.”

9. [9]
   The circumstances of the offending make it apparent that this would have been a harrowing experience for the complainant.  This is supported by the complainant’s victim impact statement in which she detailed the effect the offending has had on her.
10. [10]
    In this statement the complainant refers to the applicant ranting and stating that someone was out to get him.  He also stated that the police were outside waiting for him.  The complainant in her observations of the applicant considered that he may have been on illicit substances.  He was sweating and exhibiting paranoia.  The statement of agreed facts also evidences other bizarre behaviour on the part of the applicant in seeking to deprive the complainant of her liberty.  At no time did the applicant seek to take the complainant’s mobile phone from her.  Further, in the course of depriving the complainant of her liberty, the applicant went to the kitchen by himself to obtain ice for his water which led to him eating a tub of ice-cream on the porch.
11. [11]
    There are three other aspects of the nature of the offending arising from the agreed facts which should be noted.  The first is that the applicant did not force his way into the dwelling but rather entered by the open back door.  Second, the applicant was not armed with any weapon.  Third, the applicant did not enter the dwelling with any intention to steal property or commit any offence of a sexual nature.  His Honour proceeded on the basis that the applicant was not sexually motivated.^[1]  This was also reflected by the sentencing judge convicting but not further punishing in relation to the summary offence of indecent act.

The applicant’s antecedents

12. [12]
    The applicant was 36 years of age at the time of offending and 37 when sentenced.  The applicant has both a Queensland and New South Wales criminal history.  The most serious entries of the New South Wales criminal history are for offences of robbery and aggravated entering dwelling.  These are quite dated going back to 2007.  The more recent offending in New South Wales which relates to 2016 and 2017 consists of more minor offences such as possessing prohibited drugs, failing to appear, obstructing police and common assault.  The applicant has a 13 page Queensland criminal history which, at least in part, evidences the applicant’s ongoing difficulty with drugs.  He was first dealt with for possessing dangerous drugs in 2006.  Thereafter followed convictions for possessing drugs, utensils and pipes in 2011, 2015, 2016 and 2019.
13. [13]
    On 24 April 2018, the applicant was sentenced in the Ipswich District Court in relation to offences of entering dwelling with intent by break at night with property damage.  For that offending his Honour Judge Horneman-Wren SC imposed a sentence of imprisonment for two years and fixed an immediate parole release date.  That offending involved two co-offenders forcibly entering a dwelling and assaulting one of the occupants.  The co-offenders were armed with a metal pole and a length of wood.  His Honour noted that the applicant was not involved himself physically in any of the violence concerning the entering dwelling and had remained in the motor vehicle.
14. [14]
    Judge Horneman-Wren SC summarised the applicant’s criminal history as follows:

“You were first convicted of burglary as a child for which you were placed on detention.  When one looks at your criminal history, and the early period in which it started, one could think that it is quite shocking but there is some context to it which I will come shortly. …

As an adult, you have been sentenced to numerous periods of imprisonment for a wide array of offences including offences of violence, property offences, dishonesty, drug offences, motor vehicle offences. … [B]ut you, unfortunately, had a very dysfunctional background.  You were placed in what was intended to be care when you were very young.  You were there, I am told, from 10 to 18. …”

15. [15]
    Judge Horneman-Wren SC noted that while in care, the applicant was exposed to alcohol and drugs and was subjected to abuse.
16. [16]
    Before the sentencing judge some reference was made by counsel for the applicant to the applicant’s mental health history.  It was submitted that when the applicant is drug affected and mentally unwell he suffers from anxiousness and degrees of paranoia.  Prior to 20 November 2021, which was the date of the offending, the applicant had undertaken one session of telephone counselling with the National Counselling and Referral Service at Blue Knot Foundation.  This service provides trauma informed counselling for people living with disabilities who have experienced violence, abuse, neglect or exploitation.^[2]  Five days after the offending on 25 November 2021 the Mental Health Review Tribunal issued a notice of hearing for an application for an examination authority under the Mental Health Act 2016 (Qld).  This application had been made by a relative of the applicant.  After a hearing on 25 November 2021, the Mental Health Review Tribunal approved the application for an examination authority which was issued.  The application did not however identify whether the applicant suffered at the time from any mental health issues.  In his letter to the court however, the applicant referred to addressing his drug and alcohol use along with his mental health issues.^[3]
17. [17]
    While it may be accepted that the applicant on the night of the offending was exhibiting paranoia, it is not apparent whether this was as a result of an underlying mental health condition or illicit drug use or a combination of both.

Sentencing remarks

18. [18]
    The sentencing judge made reference to the maximum penalties that may be imposed including one of life imprisonment for burglary and deprivation of liberty.  His Honour considered that the applicant’s plea of guilty was an early plea of guilty which had facilitated the administration of justice.
19. [19]
    His Honour accepted that the applicant had demonstrated remorse.  In his letter to the court not only did the applicant express this remorse, he also apologised to any person he may have affected by his actions as well as apologising to his own family.
20. [20]
    His Honour considered that the applicant should appreciate that the experience for the complainant would have been “extremely terrifying”.^[4]  It was not however premeditated offending.  His Honour considered that persons “who foolishly commit these sorts of acts” deserve punishment.  His Honour considered that the offending was not a typical home invasion and that the applicant may have been drug affected and experiencing mental health issues at the time.
21. [21]
    His Honour referred to the decision of this Court in R v Broome [2015] QCA 119.
22. [22]
    His Honour took into account steps taken by the applicant in relation to rehabilitation.  The applicant had completed a number of programs while on remand and had enrolled in English and maths subjects with Charters Towers School of Distant Education.  He had also signed up for an opioid substitution treatment program as well as attending seven telephone counselling sessions with the Blue Knot Foundation.  The applicant had also been working in prison as a cleaner for four hours a day and had been subject to COVID restrictions while on remand.

Ground 2 – the sentencing judge erred in imposing concurrent sentences of imprisonment for each of counts 2, 3 and 4

23. [23]
    It is convenient to deal first with Ground 2 as this ground is conceded by the respondent.  As is evident from the agreed statement of facts, the three common assaults were relied upon by the Crown as constituting particulars of the deprivation of liberty.  The respondent accepts that given the factual basis advanced by the Crown at the sentence for the deprivation of liberty offence, it was not appropriate for the applicant to receive separate, albeit concurrent, penalties for Counts 2 – 4.  The respondent accepts that the applicant should not have been twice punished for the same acts.  While the Crown was permitted to present an indictment which contained separate counts for the common assault charges^[5] these three offences did not warrant separate orders of imprisonment.^[6]
24. [24]
    Accordingly, the application for leave to appeal against the sentences imposed in relation to Counts 2 – 4 should be granted.  Each of the sentences of eight months imprisonment should be set aside and replaced with orders that the applicant be convicted and not further punished.
25. [25]
    The granting of leave to appeal against sentence in respect of Counts 2 – 4 does not however, automatically result in the applicant being granted leave to appeal against sentence in respect of Count 1.  In terms of the principle in R v Nagy [2004] 1 Qd R 63, it is not readily apparent that the learned sentencing judge in arriving at the term of imprisonment of three and a half years for Count 1 took into account the overall criminality including the three separate counts of unlawful assault.  That is, it is not apparent from a consideration of the sentencing proceedings that the sentence for Count 1 was in any way increased so as to take into account the criminality concerned with the three common assaults offences.
26. [26]
    In imposing concurrent sentences of eight months imprisonment, the sentencing judge referred to the three common assault offences as being “less serious offences”.^[7]  While this may suggest that his Honour considered the criminality in relation to the three common assaults separately to Count 1, it is more likely that his Honour took the common assaults into account as part of the particulars of the deprivation of liberty as stated in the agreed statement of facts.  The Crown had specifically particularised Count 1 by a reference to a number of acts on the part of the applicant including the conduct constituting the three common assault counts.  As was the case in R v Connolly the error the subject of Ground 2 has no relevance in relation to Ground 1 and would not of itself require this Court to interfere with the sentence imposed for Count 1.^[8]

Ground 1 – was the sentence imposed on Count 1 manifestly excessive?

27. [27]
    In the course of oral submissions, counsel for the respondent conceded that the offending in relation to Count 1 could not be categorised as “home invasion”.  The effect of this concession was also recognised by the sentencing judge by observing that there was nothing premediated in the applicant entering the dwelling and that the offending was “not a typical home invasion sort of situation”.^[9]  As already observed, the present offending involved the applicant entering the dwelling through an open back door in circumstances where he was evidencing signs of paranoia, possibly arising from illicit drug use or mental health issues or a combination of both.  He was not armed and it was accepted that he did not enter the dwelling for the purposes of committing a robbery or any offence of a sexual nature.  While in the dwelling, there were aspects of the applicant’s words and actions that may properly be described as bizarre and indicative of paranoia.
28. [28]
    The circumstances of the offending in relation to Count 1 are readily distinguishable from the usual type of offending involved in a home invasion.
29. [29]
    In R v Broome, to which the sentencing judge was referred, leave to appeal against sentence was granted and the sentences of five years on Counts 1 and 2 were reduced to four years.  These sentences were imposed after trial.  Broome, like the applicant, had an extensive criminal history.  Broome’s criminal history was however, more serious resulting in him previously being sentenced to imprisonment for seven years and subsequently to 12 years.  Broome’s conduct was also more objectively serious than the applicant’s.  Broome was armed with a stick which was about 80 – 90 centimetres in length and was described by one of the witnesses as a “nulla nulla”.  His conduct included striking a person who was on crutches across the head and on the arm with the nulla nulla.  Broome’s conduct also included threatening a number of persons who were seeking to escape.  The circumstances in Broome as compared to the present offending renders the decision of little assistance as a comparative.
30. [30]
    There are however, four decisions of this Court concerning more serious offending that support the applicant’s submission that the sentence of three and a half years for Count 1 is manifestly excessive.
31. [31]
    In R v Blenkinsop; R v Blenkinsop [2007] QCA 181, two brothers were part of a group of four men who carried out a home invasion.  The offences were one count of burglary with a circumstance of aggravation, two counts of deprivation of liberty, one count of common assault and one count of stealing.  The four men believed that the resident of the unit was a paedophile.  That person however lived elsewhere and the group of four invaded a unit inhabited two other persons.  The four offenders wore masks and surgical gloves and were armed with weapons, including an Asian style sword, a steak knife and a baseball bat.  They also wielded a fourth implement found at the unit which was in the nature of a pestle.  One of the brothers, Tony Blenkinsop, carried a steak knife.  He moved one of the occupants from one room into another.  The group of four ransacked the unit, taking two landline telephones, two mobile phones, a digital camera and a packet of cigarettes.
32. [32]
    Holmes JA (with whom Williams and Jerrard JJA agreed), reduced the sentence of Tony Blenkinsop from four years to three years on the basis that his role and antecedents were different to those of his brother, Tony Blenkinsop was only 18 years of age at the time of the offending.  The offending considered by Holmes JA was however, more serious in that it was premediated.  Further Tony Blenkinsop was armed and in the company of three co-offenders.
33. [33]
    In R v Leu; R v Togia [2008] QCA 201 the offences were burglary by breaking in the night, with violence, while armed, in company, with property damage, assault occasioning bodily harm, while armed, in company, common assault and armed robbery in company with personal violence.  Fraser JA (with whom Keane JA and Lyons J agreed) considered a number of comparable decisions in relation to burglary.  His Honour observed at [44]:

“This examination of broadly comparable decisions leads me to conclude that for these applicants, whose premediated home invasion at night in company with each other included a robbery and a use of weapons by both in an assault that caused relatively minor bodily harm to an occupant who was in dispute with one of the applicants related to the complainant’s supply of drugs, the sentencing range falls between three and five and a half years imprisonment.”

34. [34]
    One of the comparatives referred to by Fraser JA was R v Cockfield [2006] QCA 276 which involved an application for leave to appeal against sentence of a 22 year old with a criminal history which included offences involving violence.  Cockfield, in company with another offender, forced his way into a house past two of the occupants.  He pretended to have a gun and demanded money while threatening to shoot one of the occupants and holding him by the throat.  He stole two mobile phones from the house.  Cockfield’s sentence proceeded on the basis that the complainants suffered no injuries or ill effects.  Cockfield also had promising prospects of rehabilitation.  The Court set aside a sentence of three and a half years imprisonment suspended after six months and re-sentenced Cockfield to a sentence of two years imprisonment suspended after three months.  But for a s 13A undertaking, Cockfield would have been sentenced to two and a half years imprisonment suspended after nine months with an operational period of two and a half years.  Unlike the present applicant, Cockfield’s offending included elements of both burglary and armed robbery in company with personal violence.  Fraser JA considered Cockfield’s conduct was towards the lower end of the range of such offences with the appropriate starting sentence being in the range of two and a half to three years.
35. [35]
    In R v Dahlstrom [2022] QCA 139, Boddice J (with whom Mullins P and Morrison JA agreed) considered an application for leave to appeal against sentence for offences that included one count of burglary by break with violence in company.  The applicant had been sentenced to imprisonment for three years on that count with lesser concurrent periods of imprisonment for the remaining counts which included one count of common assault, two counts of assault occasioning bodily harm whilst armed in company and one count of wilful damage.  The circumstances of the offending was that Dahlstrom, in company with his co-accused and another unknown male, forced his way into a residence in the course of which they pinned a child against a wall as the consequence of the door being forced open.  The applicant then swung a punch towards the male complainant who was seeking to defend himself with a baseball bat.
36. [36]
    Boddice J considered that the offending involved serious violence and further observed:

“Such offending rightfully was described as a serious example of home invasion.  Absent strong mitigating factors, a head sentence in the order of four years imprisonment would be well within range.”

Because of a substantial number of mitigating factors, however, including the youth of the offender and no relevant prior criminal history as well as Dahlstrom not committing any offences whilst on bail for almost two years, the Court resentenced him to three years imprisonment but with a more favourable parole release date.

37. [37]
    In R v Hirst [2023] QCA 25, the Court granted leave to appeal and varied a sentence of three and half years imprisonment to three years imprisonment.  Hirst had pleaded guilty and was sentenced for three counts, including assault occasioning bodily harm in company, common assault and burglary by break, with violence, in company, with property damage.  He was in company of two other persons at the time of the offending.  The Court (Mullins P, Bond JA and Brown J) considered a number of comparatives including Leu and Togia as well as Dahlstrom.  The Court observed at [22]:

“The sentence imposed on Mr Hirst is not reconcilable with these comparable authorities where counts 1 and 3 did not involve other than brief premeditation, neither Mr Hirst, Mr Kovac nor the son was armed, and Mr Hirst had mitigating factors in his favour, including that he was being sentenced as a first time offender.  The sentences for counts 1 and 3 were therefore ‘unreasonable or plainly unjust’.  The sentence of 12 months imprisonment for the first offence physically committed by Mr Hirst which was the chest barge of the female complainant while she was holding her baby for which there was no injury was unjustifiable.  Mr Hirst has succeeded in discharging the onus of showing that the sentences imposed were manifestly excessive.”

38. [38]
    It was stated in R v MCT^[10] that to establish manifest excess and succeed on this ground of appeal “it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters”.  In the present application however, and as discussed above, the offending of the present applicant is to be distinguished from the comparatives considered above which involved premeditated burglary usually in company and while armed.
39. [39]
    While not all of the comparatives involved conduct constituting deprivation of liberty, they are appropriate comparatives generally considering offences in the nature of home invasion.
40. [40]
    For the above reasons, the sentence for Count 1 was manifestly excessive.  In re-exercising the sentencing discretion, I would reduce the sentence of three and a half years to one of two and a half years with immediate release on parole.

Disposition

41. [41]
    I propose the following orders:

3. 1.
   Application for leave to appeal against sentence granted.

3. 2.
   Appeal allowed.

3. 3.
   Set aside the sentences imposed in the District Court on 6 December 2022 in relation to Counts 1 – 4 and in lieu impose the following sentences:

3. a.
   Count 1: order that the applicant be imprisoned for a period of two years and six months;

3. b.
   Counts 2 – 4: convicted not further punished.

3. 4.
   The parole release date be fixed at 12 May 2023.

3. 5.
   Pursuant to s 159A of the Penalties and Sentences Act 1992 it is stated that the applicant was held in pre-sentence custody for 533 days between 24 November 2021 to 11 May 2023.  The Court declares that 533 days of pre-sentence custody be imprisonment already served under the sentence.

42. [42]
    BODDICE JA:  I agree with Flanagan JA.