DPP v Marrah (Unreported, County Court of Victoria, Judge Hampel, 20 September 2013)
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CRIMINAL LAW – Sentence – Violence by male partner towards female partner – Breach of intervention order – Recklessly causing serious injury (RCSI) – Threat to kill – Rape – Injuries sustained comparatively minor – Crown concession that two of the three sentences imposed fell outside the available range – Sentences on RCSI and threat to kill represented statistical extremes – Sentences on RCSI and threat to kill manifestly excessive – One course of conduct involving discrete criminal offending – Total effective sentence more than was necessary to reflect offender’s total criminality – Azzopardi v The Queen (2011) 35 VR 43 applied – Appeal allowed.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr C T Carr
Tait Lawyers
For the Crown
Mr B F Kissane
Mr C Hyland, Solicitor for Public Prosecutions
REDLICH JA TATE JA:
The applicant seeks leave to appeal against sentences imposed in the County Court following the applicant’s plea of guilty to charges of making a threat to kill,[1] rape,[2] and recklessly causing serious injury.[3] Each of the offences occurred during a prolonged assault by the applicant against his domestic partner. He was sentenced as follows:
12 years, with 10 years to be served before becoming eligible for parole.
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991
458 days.
Section 6AAA declaration
15 years, with 13 years to be served before becoming eligible for parole.
Circumstances of the offending
The complainant was 28 years old at the time of the offending, and had been in a relationship with the applicant for about two years. They have one child together, who at the time of the offending was one year old and in the care of the Department of Human Services (‘DHS’). Throughout the relationship there had been a number of family violence incidents, some of which were reported to the police and others which were not. A family violence intervention order was active at the time of the offending, with conditions that the applicant could not commit acts of family violence or damage the complainant’s property.
On 18 June 2012, the applicant and the complainant were arguing about his belief that she had been having sexual relations with other men. The verbal argument escalated into a prolonged…
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
AGLC
Marrah v The Queen [2014] VSCA 119
Case
[2014] VSCA 119
Decision Date
CaseChat Overview and Summary
Marrah appealed against his conviction and sentence for offences against his partner, including recklessly causing serious injury, threatening to kill, and rape. The appeal focused on the severity of the sentences imposed. The Court of Appeal was required to determine whether the sentences were excessive and whether they appropriately reflected the totality of the offender’s criminal conduct.
The court considered the principles established in Azzopardi v The Queen, which emphasise that the totality principle should be applied when sentencing for multiple offences arising from a single course of conduct. The court noted that the injuries sustained by the victim were comparatively minor, and two of the sentences imposed were acknowledged by the Crown to be outside the available range. Additionally, the sentences for recklessly causing serious injury and threatening to kill were at the extreme ends of the statistical range. The court held that these sentences were manifestly excessive and did not appropriately reflect the totality of the offender’s criminality. The court concluded that the total effective sentence was more than necessary to address the offender’s criminal conduct.
The appeal was allowed, and the sentences were quashed. The matter was remitted to the sentencing court for reconsideration in light of the court’s findings.