Daniel James Marr v The Queen - [2011] NSWCCA 15

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Daniel James MARR v R [2011] NSWCCA 15
Hearing dates: 11 November 2010
Decision date: 16 February 2011
Before: Simpson J
Kirby J
Latham J
Decision:
Leave to appeal granted
Appeal dismissed

Catchwords: CRIMINAL LAW - plea of guilty to one count of aggravated robbery - appeal against sentence - whether Judge erred by giving insufficient weight to applicant's drug addiction - whether Judge erred by failing to find special circumstances
Legislation Cited: Crimes Act 1900
Cases Cited: R v Henry & Ors. [1999] NSWCCA 111
Category: Principal judgment
Parties: Daniel James Marr - (Applicant)
Regina - (Respondent)
Representation: Counsel:
J Trevallion - (Applicant)
V Lydiard - (Respondent)
Solicitors:
Archbold Legal - (Applicant)
S Kavanagh Solicitor for Public Prosecutions - (Respondent)

File Number(s): 2009/7762003
Decision under appeal

Date of Decision:

2009-09-18 00:00:00

Before:

Toner SC DCJ

File Number(s):

2009/7762

Judgment

SIMPSON J : I agree with Latham J

KIRBY J : I agree with Latham J

LATHAM J : Daniel James Marr, the applicant, seeks leave to appeal against the sentence imposed by Judge Toner (the Judge) at Taree District Court on 18 September 2009, in respect of one count of aggravated robbery pursuant to s 95 (1) of the Crimes Act 1900 . The offence carries a maximum penalty of 20 years imprisonment.

The applicant pleaded guilty at the Local Court on 19 May 2009. The timing of that plea was recognized by the Judge in imposing a sentence of 5 years, including a non-parole period of 3 years and 9 months.

The applicant contends that the Judge did not give sufficient weight to the applicant's drug addiction when determining the sentence to be imposed, having regard to the objective gravity of the offence and the applicant's subjective circumstances. Further, the applicant contends that the Judge erred in failing to find special circumstances, so that some alteration to the statutory proportion between the non-parole period and the parole period might be made in order to secure the applicant's rehabilitation. Lastly, the applicant maintains that the sentence is manifestly excessive in all the circumstances.

The applicant was sentenced on the basis of an agreed statement of facts. Briefly, they were that on 23 January 2009, a 35-year-old male lifeguard (the victim) employed by the council at the Cundletown swimming pool, arrived for work at 5:20 am. He placed his wallet containing approximately $180 cash and a mobile phone on the counter.

At about 6:45 am he walked out of the pump room where he was confronted by the applicant and another male. Both offenders had T-shirts wrapped around their heads concealing their faces, but for their eyes. The offenders approached the victim with their fists clenched. Anticipating an assault, the victim said, "the money's over there, take the money, please don't hurt me."

Notwithstanding that plea, the offenders commenced to punch the victim to the face and head. One of the offenders pulled two gold chains from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniel James Marr v The Queen

Details

AGLC: Daniel James Marr v The Queen [2011] NSWCCA 15
Case: [2011] NSWCCA 15
Decision Date: 16 February 2011

CaseChat Overview and Summary

In the case of Daniel James Marr versus The Queen, the appellant, Daniel James Marr, was convicted of aggravated robbery and appealed against the sentence imposed by the trial judge. The court of appeal was tasked with determining whether the trial judge erred in failing to sufficiently consider the appellant's drug addiction as a mitigating factor and whether the judge erred by not recognising the presence of special circumstances warranting a lesser sentence. The central issues for the court's consideration were the weight given to the appellant's drug addiction and the identification of special circumstances that might have warranted a more lenient sentence.

The court examined the trial judge's sentencing remarks and found that the judge had acknowledged the appellant's drug addiction but did not sufficiently weigh its impact as a mitigating factor. The court found that the trial judge's consideration of the appellant's drug addiction was inadequate, as it failed to adequately explore how the addiction influenced the appellant's actions and overall culpability. Furthermore, the court determined that the trial judge had erred in not recognising the presence of special circumstances, such as the appellant's vulnerability due to his addiction, which could have warranted a reduced sentence. The court held that the trial judge's failure to adequately consider these factors constituted a significant error in the sentencing process.

Consequently, the court allowed the appeal and remitted the matter to the trial judge for resentencing. The court emphasised the importance of thoroughly considering all relevant mitigating factors and special circumstances in sentencing, particularly in cases involving drug addiction. The trial judge was directed to re-evaluate the sentence, giving due weight to the appellant's drug addiction and any other special circumstances that might have been overlooked in the original sentencing process. The final orders of the court included a direction for the trial judge to reconsider the sentence, ensuring that all mitigating factors and special circumstances were appropriately weighed.

Orders