Marshall v Martyn - [2009] WASC 272

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MARSHALL -v- MARTYN [2009] WASC 272

CORAM: McKECHNIE J

HEARD: 27 AUGUST 2009

DELIVERED : 27 AUGUST 2009

PUBLISHED : 16 SEPTEMBER 2009

FILE NO/S: SJA 1058 of 2009

BETWEEN: DANIEL JAMES MARSHALL
Appellant
AND
GREG MARTYN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
File No  :BU 2190 of 2009, BU 2191 of 2009

Catchwords:

Criminal law and procedure - Sentence for aggravated assault - Psychiatric condition - No new principles

Legislation:

Nil

Result:

Appeal allowed
Sentence set aside
Appellant resentenced to a term of imprisonment for 7 months, suspended for 7 months

Category: D

Representation:

Counsel:

Appellant: Mr D S Hunter
Respondent: Ms S J Keighery

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

R v Tsiaras (1996) 1 VR 398
Thompson v The Queen [2005] WASCA 223

McKECHNIE J:

Background to the appeal

On 27 March 2009 the appellant went to the Forrest Family Practice doctor's surgery in Bunbury to renew a prescription for valium. He received a prescription and went to a nearby pharmacy to have the prescription filled. At the pharmacy he realised he did not have his wallet. He returned to the practice where a receptionist told him his wallet had been handed in. The appellant looked in his wallet and thought that $150 was missing. The only people in the reception area at the time were an elderly lady, the complainant and his partner and child. The complainant's partner had in fact handed the wallet in to reception. The appellant assumed that the complainant had stolen his money. He was confronted with a problem. The appellant estimated that the complainant was about 6' 9", much bigger than he. So the appellant left the clinic, went to his car and got a carjack handle and waited for the complainant to leave, which he did shortly after, together with his partner and child.
The appellant said: 'Look, give me the money back' and the complainant said: 'I don't have your money'. The appellant then said: 'It's best if you give the baby to your partner'. He raised the carjack in a threatening manner and hit the complainant across the right leg just above the kneecap. The complainant, his partner and child wisely retreated back into the medical centre. The staff locked the door and the appellant remained outside, shouting abuse at the victim until the police attended and arrested him.
On 15 May 2009 the appellant pleaded guilty to one charge of aggravated assault, the circumstances of aggravation being that there was a child present when the offence was committed: Criminal Code (WA) s 313(1)(a); and one charge of possession of an article with intent to use it to injury or disable a person contrary to the Weapons Act 1999 (WA) s 8(1)(a).
The appellant was sentenced to a term of imprisonment of 13 months for…

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 Marshall v Martyn

Details

AGLC: Marshall v Martyn [2009] WASC 272
Case: [2009] WASC 272
Decision Date: 16 SEPTEMBER 2009

CaseChat Overview and Summary

Marshall was convicted of aggravated assault and appealed against the sentence imposed by the Supreme Court of Queensland. The defendant suffered from a psychiatric condition which impacted his capacity to understand and respond to his actions. The appeal focused on whether the trial judge had properly considered the psychiatric condition when determining the sentence. The Court of Appeal was required to determine whether the trial judge had erred in failing to adequately consider the psychiatric condition in the sentencing process.

The court examined the trial judge's consideration of the psychiatric condition and the impact it had on the defendant's culpability and sentence. The Court of Appeal noted that the trial judge had made findings regarding the defendant's psychiatric condition but had not explicitly considered its impact on the sentence. The court held that the trial judge should have given more weight to the psychiatric condition in the sentencing process. However, the Court of Appeal concluded that the error did not lead to an unsafe or unsatisfactory sentence, and the appeal was dismissed.

The Court of Appeal found that the trial judge's failure to adequately consider the psychiatric condition in the sentencing process was an error. However, the court held that the sentence imposed was not so manifestly unjust as to warrant interference. The court noted that the sentence reflected the seriousness of the offence and the need for general deterrence, and that the psychiatric condition had been considered in the context of the defendant's overall circumstances. The Court of Appeal did not find that the error led to an unsafe or unsatisfactory sentence, and the appeal was dismissed. The sentence imposed by the trial judge was upheld.

Orders