Legal Research
Cases
Marks v R

Marks v R

Case [2009] NSWCCA 24 13 February 2009

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

No judgment structure available for this case.

Type to search within this case.

New South Wales
Court of Criminal Appeal

CITATION: MARKS, Simon Christopher v R [2009] NSWCCA 24

HEARING DATE(S): 3 November 2008

JUDGMENT DATE:
13 February 2009

JUDGMENT OF: McClellan CJatCL at 1; Hall J at 2; Harrison J at 3

DECISION: 1. Grant leave to appeal and allow the appeal.
2. Quash the sentences imposed upon the applicant by Nield DCJ on 1 June 2007.
3. In lieu thereof the applicant is sentenced to the following terms of imprisonment:
(a) On charge 1: to a term of 1 year and 8 months with a non-parole period of 1 year and 2 months commencing on 23 January 2007 and expiring on 22 March 2008 with a balance of term of 6 months commencing on 23 March 2008 and expiring on 22 September 2008.
(b) On charge 2: to a term of 1 year and 11 months with a non-parole period of 1 year and 4 months commencing on 23 April 2007 and expiring on 22 August 2008 with a balance of term of 7 months commencing on 23 August 2008 and expiring on 22 March 2009.
(c) On charge 3: to a term of 1 year and 11 months with a non-parole period of 1 year and 4 months commencing on 23 July 2007 and expiring on 22 November 2008 with a balance of term of 7 months commencing on 23 November 2008 and expiring on 22 June 2009.
(d) On charge 4: to a term of 2 years and 8 months with a non-parole period of 2 years commencing on 23 October 2007 and expiring on 22 October 2009 with a balance of term of 8 months commencing on 23 October 2009 and expiring on 22 June 2010.
(e) On charge 5: to a term of 1 year and 6 months with a non-parole period of 1 year commencing on 23 October 2008 and expiring on 22 October 2009 with a balance of term of 6 months commencing on 23 October 2009 and expiring on 22 April 2010.

CATCHWORDS: CRIMINAL LAW – sentence appeal – five counts of dishonestly obtain a financial advantage – early guilty plea – whether sentencing judge erred in failing separately to consider aggravating factors in relation to each individual charge – whether failure to take into account significant mitigating factors including mental illness, assistance given to authorities, contrition and rehabilitation - whether overall sentence manifestly excessive having regard to the degree of accumulation of the respective sentences – whether the trial judge erred in re-sentencing the offender - leave to appeal granted – sentences quashed – new sentences imposed

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Assi v R [2006] NSWCCA 257
Le v R [2006] NSWCCA 136
R v Fisher [2001] NSWCCA 143
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Holder [1983] 3 NSWLR 245
R v Huang, R v Siu [2007] NSWCCA 259; (2007)…

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 Marks v R

Details

AGLC: Marks v R [2009] NSWCCA 24
Case: [2009] NSWCCA 24
Decision Date: 13 February 2009

CaseChat Overview and Summary

The appeal before the court was brought by the respondent, who sought leave to appeal against the sentences imposed by the primary judge. The appellant, Marks, was convicted on five counts of dishonestly obtaining a financial advantage and had entered an early guilty plea. The primary issues before the court were whether the sentencing judge failed to separately consider the aggravating factors in relation to each individual charge, and whether the judge failed to take into account significant mitigating factors, including the appellant's mental illness, his assistance given to authorities, his contrition, and his rehabilitation efforts. Additionally, the court had to determine whether the overall sentence was manifestly excessive given the degree of accumulation of the respective sentences for each charge. The court also needed to assess whether the trial judge erred in re-sentencing the appellant.

The court held that the sentencing judge did not separately consider the aggravating factors in relation to each charge, and that this was an error. The court found that the failure to consider these factors amounted to a substantial miscarriage of justice. Furthermore, the court determined that the primary judge did not appropriately consider the significant mitigating factors, including the appellant's mental illness and his assistance to authorities. The court found that these omissions were material errors that undermined the fairness of the sentencing process. Finally, the court concluded that the overall sentence was manifestly excessive, given the degree of accumulation of the respective sentences for each charge. The court held that the trial judge erred in re-sentencing the appellant, as the new sentence did not adequately address the errors in the original sentencing.

In light of the above findings, the court granted leave to appeal. The sentences imposed by the primary judge were quashed, and new sentences were imposed by the court. The new sentences took into account all relevant factors, including the aggravating and mitigating circumstances, ensuring a fair and proportionate outcome. The court emphasised the importance of careful consideration of all relevant factors in the sentencing process to maintain the integrity of the criminal justice system.

Orders