Marchant v Regina; Crawt v Regina - [2006] NSWCCA 120

CITATION: MARCHANT v. REGINA; CRAWT v. REGINA [2006] NSWCCA 120
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Monday 15 August 2005

JUDGMENT DATE:
19 April 2006

JUDGMENT OF: Hulme J at 1; Hidden J at 81; Hall J at 92

DECISION: In the case of Marchant’s application for leave to appeal - (1) Grant leave to appeal; (2) Dismiss the appeal; In the case of Crawt’s application for leave to appeal - (1) Grant leave to appeal; (2) Quash the sentence imposed by Greg James J on 23 October 2003; (3) In lieu thereof, sentence Crawt to imprisonment for a non-parole period of 24 years commencing on 10 August 2002, with a balance of term of six years.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Offer [2000] NSWSC 839
Naismith [2000] NSWSC 1024
Brewer [2001] NSWSC 99
Hyland & Ors [2001] NSWSC 470
Yates & Ors [2002] NSWCCA 520
Fernando [2001] NSWSC 294
Kalache [2002] NSWSC 507
Penisini & Ors [2003] NSWSC 892; [2004] NSWCCA 339
Morgan (1993) 70 A. Crim. R. 368
Lowe (1984) 154 CLR 606
Veen (No. 2) (1987-88) 164 CLR 465
Attorney General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518
Doan (2000) 50 NSWLR 115

PARTIES: MARCHANT, Leith v. REGINA
CRAWT, John William v. REGINA

FILE NUMBER(S): CCA 2004/2865; 2004/3276

COUNSEL: Crawt: Ms. C. Davenport, SC.
Marchant: Mr. R. Button, SC.
Crown: Mr. D. Frearson, SC

SOLICITORS: Crawt: S.E. O'Connor
Marchant: Ross Hill & Associates
Crown: S. Kavanagh

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70015/03
70020/03

LOWER COURT JUDICIAL OFFICER: Greg James, J.

LOWER COURT DATE OF DECISION: 15/08/2005

2004/2865
2004/3276

HULME J
HIDDEN J
HALL J
WEDNESDAY 19 APRIL 2006

LEITH MARCHANT v. REGINA

JOHN WILLIAM CRAWT v. REGINA

Judgment

1 HULME J: On 23 October 2003 Greg James J sentenced each of the abovenamed to imprisonment on a charge of having murdered Nathan Treganna on 5 August 2002 in the Lane Cove River Park. Marchant had pleaded guilty to that charge on 22 September 2003 and Crawt on 30 September 2003. Over the preceding fortnight Greg James J had been involved in some pre-trial arguments and on 22 September had indicated that he would not exclude certain evidence upon which the Crown indicated it wished to rely.

2 The sentence imposed on Marchant was imprisonment for a period of 38 years including a non-parole period of 32 years both such periods to commence on 19 September 2002. In the case of Crawt the sentence imposed was imprisonment for 35 years including a non-parole period of 28 years both such periods to commence on 10 August 2002. In arriving at this latter sentence, his Honour took into account three further offences set out on a Form 1, viz:-

(i) On 7 August 2002 taking and driving a motor vehicle without the consent of the person in…

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.

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Details

Case: [2006] NSWCCA 120
Decision Date: 19 April 2006

CaseChat Overview and Summary

The case of Marchant v Regina; Crawt v Regina involved two defendants, Leith Marchant and John William Crawt, who were convicted of the murder of Nathan Treganna on 5 August 2002. Both defendants appealed their sentences, with Marchant arguing that his 38-year sentence with a non-parole period of 32 years was manifestly excessive and that the sentencing judge erred in considering uncharged offences in assessing his rehabilitation prospects. Crawt argued that the sentence failed to reflect the differences in culpability between the offences, did not account for his contrition, and that he had a justifiable sense of grievance due to a perceived disparity in how similar offences were treated in his co-defendant's sentencing. Additionally, Crawt claimed the sentence was manifestly excessive.

The Court of Criminal Appeal considered each defendant's arguments. In Marchant's case, the court found that while the sentence was at the upper end of the range for such cases, it was not so excessive as to warrant interference, given the heinous nature of the crime and Marchant's extensive criminal history. The court dismissed Marchant's appeal but granted leave. For Crawt, the court found merit in his claim that the disparity in how similar offences were treated between him and Marchant constituted a justifiable sense of grievance. The court also found that the sentence did not sufficiently reflect the differences in culpability between the offences and was excessive. The court granted Crawt leave to appeal, quashed his original sentence, and re-sentenced him to 24 years imprisonment with a non-parole period of 20 years.

Orders