R v Murray

HEYDON JA: I agree.

SMART AJ: I also agree.

IRELAND AJ: The applicant before this Court pleaded guilty to five counts of passing valueless cheques in contravention of s 178B of the Crimes Act, 1900 and one count of obtain benefit by deception in contravention of s 178BA of the Crimes Act, 1900 , before her Honour Judge Tupman in the District Court at Penrith, on 1 September 1999.

Four further offences of passing valueless cheques were taken into account on a Form 1. The offences were committed between 30 September 1994 and 8 January 1995.

On 2 September 1999, Tupman DCJ sentenced the applicant as follows:- In relation to Counts 1, 2, 4, 5 and 6, her Honour deferred passing sentence (pursuant to s 558 of the Crimes Act ) upon the applicant entering into a recognisance in the sum of $1,000 to be of good behaviour for a period of 2 years. The recognisance was subject to the conditions:- (i) that the applicant accept the supervision and guidance of the Probation and Parole Service; and (ii) that he pay two of the amounts, i.e. $285 and $175, at a rate of $50 per month. In relation to Count 3, the applicant was ordered to perform 300 hours of community service, under the supervision of the Queanbeyan Local Court and the Queanbeyan office of the Probation and Parole Service.

Her Honour's remarks on sentence, which occupy ten pages, make plain that, in considering the appropriate sentence to be passed, a great deal of thought was given to relevant sentencing considerations, including, in particular, the applicant's services to the Aboriginal community in which he had played a prominent role over many years.

The penalty imposed was, in the circumstances, minimal in the extreme, particularly when consideration is had to the applicant's criminal history, which is extensive and includes serious offences, albeit, not of the precise nature of those being considered by the sentencing judge in the proceedings before Tupman DCJ. In fact, Mr Murray describes the penalties imposed in the present case as "the best sentence I ever received in my life" .

The application which the applicant now wishes to make before this Court is for favourable consideration and exercise of the Royal Prerogative of Mercy.

The exercise of such power is not within the jurisdiction of this Court and is a matter for the Executive Government. In R v Vachalec (1981) 1 NSWLR 351, Street CJ, delivering the judgment of the Court, said at p 353-354:- "This Court as the Court of Criminal Appeal functioning within its well-established jurisdictional boundaries is concerned, both in appeals against conviction and appeals against sentence, primarily to ascertain whether the decision of the first instance judge was in error and, if so, in what way it should be corrected. Normally error requires the evaluation of the material placed before the first instance court. There are, however, well-established bases upon which error in the first instance proceedings can be disclosed by fresh evidence or new evidence. In addition the Court's jurisdiction is exercisable where it is shown that there has been a miscarriage of justice. … This Court exercises judicial power; it has no power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. That power and authority resides in the hands of the Executive Government."

As pointed out by Mrs Hock, counsel for the respondent, this passage was more recently cited with approval in Jones (1993) 70 ACrimR 449 at 456-457. In that case, Carruthers J, with whom Sheller JA and Sully J concurred, at p 457, said:- "It must be remembered that s 53 of the Sentencing Act 1989 (NSW) provides that nothing in that Act limits or affects in any manner the Royal Prerogative of mercy." See also s 102 of the Crimes (Sentencing Procedure) Act, 1999 which came into force on 3 April 2000.

For these reasons, in my view, this application is incompetent and must be refused.