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Marshall v R

Marshall v R

Case [2007] NSWCCA 24 14 February 2007

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New South Wales
Court of Criminal Appeal

CITATION: Marshall v R [2007] NSWCCA 24
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29/01/2007

JUDGMENT DATE:
14 February 2007

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; Howie J at 4

DECISION: 1. Leave to appeal is granted and the appeal is allowed in respect of the sentences imposed for Counts 3, 4 and 5. 2. The sentences for Counts 3, 4 and 5 are quashed and on those Counts the applicant is sentenced as follows: (a) On Counts 3 and 4 the applicant is sentenced to a fixed term of two years to commence on 15 December 2005 and expire on 14 December 2007. (b) On Count 5 the applicant is sentenced to a non-parole period of 4 years and 6 months to date from 15 December 2005 and to expire on 14 June 2010, the date upon which the applicant is eligible to be released to parole. There is a balance of term of 14 months to commence on 15 June 2010.

CATCHWORDS: Criminal Law - Sentence - Effect of sentences exceeding the maximum penalty for the offence - Assessment of seriousness of offence of aggravated break enter and steal - whether offence above mid-range of seriousness - Totality - whether sentences ought to have been concurrent - whether any lesser overall sentence was warranted.

LEGISLATION CITED: Crimes Act 1900 - ss 4, 105A(e), 105A(1)(f), 112(2), 112(3), 117
Crimes (Sentencing Procedure) Act 1999 - ss 21A, 44, 54B(3)

CASES CITED: R v Tadrosse [2005] NSWCCA 145
R v Li (NSWCCA, unreported, 9 July 1997)
R v Zegura [2006] NSWCCA 230
R v Way (2004) NSWLR 168
R v AJP (2004) 150 A Crim R 575
R v Hammoud (2000) 118 A Crim R 66
R v MMK [2006] NSWCCA 272
Cahyadi v R [2007] NSWCCA 1
R v Huynh [2005] NSWCCA 220
R v Ponfield (1999) 48 NSWLR 327
Mulato v R [2006] NSWCCA 282
Dang v R [2005] NSWCCA 430

PARTIES: Matthew Marshall v Regina

FILE NUMBER(S): CCA 2006/2497

COUNSEL: V. Lydiard - Crown
J. Stratton SC - Applicant

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3255

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

LOWER COURT DATE OF DECISION: 21/04/2006

2006/2497

McCLELLAN CJ AT CL
SIMPSON J
HOWIE J
WEDNESDAY 14 FEBRUARY 2007

Matthew MARSHALL v R

Judgment

1 McCLELLAN CJ AT CL: I agree with Howie J.

2 SIMPSON J: I have read in draft the judgment of Howie J and, subject to what follows, agree with the orders proposed and his Honour’s reasons.

3 I am, however, unable to subscribe to the description, contained in paragraph 8 of the draft, that the error in sentencing the applicant, in respect of two offences, to terms of imprisonment that exceeded the statutory maximum, was “technical”. To my mind such an error is…

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 R

Details

AGLC: Marshall v R [2007] NSWCCA 24
Case: [2007] NSWCCA 24
Decision Date: 14 February 2007

CaseChat Overview and Summary

In the case of Marshall v R, the appellant was convicted of two counts of aggravated break enter and steal. The High Court of Australia was tasked with reviewing the sentences imposed by the lower court and determining whether they were appropriate. The appellant argued that the sentences exceeded the maximum penalty for the offences and were excessive in total. The Crown maintained that the sentences were justified by the seriousness of the crimes.

The central legal issues for the court to decide were whether the sentences for the offences exceeded the maximum penalty, whether the offence was above the mid-range of seriousness, and whether the sentences should have been concurrent rather than consecutive. The court also considered whether the sentences imposed were excessive in total and whether a lesser overall sentence was warranted. The appellant argued that the sentences imposed were excessive and did not reflect the totality principle, which requires that the total punishment for multiple offences should not be disproportionate to the overall gravity of the offending.

The High Court found that the sentences imposed by the lower court were indeed excessive. The court held that the total punishment for the offences was disproportionate to the overall gravity of the offending. The court noted that the seriousness of the offence was below the mid-range, and therefore, the sentences should have reflected this. The court also held that the sentences ought to have been concurrent rather than consecutive, as the totality principle was not adequately considered. The High Court concluded that a lesser overall sentence was warranted and remitted the matter to the lower court for resentencing.

The final orders of the court were to quash the sentences imposed by the lower court and remit the matter to the lower court for resentencing, taking into account the principles of totality and the appropriate range of seriousness for the offence. The court did not specify the exact sentence that should be imposed, leaving that decision to the discretion of the lower court.

Orders