Marshall v The Queen - [2013] NSWCCA 16

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Marshall v R [2013] NSWCCA 16
Hearing dates: 4 February 2013
Decision date: 13 February 2013
Before: Latham J at [1]
Button J at [2]
Grove AJ at [3]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: APPEAL - appeal against sentence - pleas of guilty - break and enter - commit serious indictable offence - error in placing greater weight on Form 1 matter - offence punishable by fine.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Summary Offences Act 1988 (NSW)
Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Category: Principal judgment
Parties: Matthew Marshall (Applicant)
Regina (Crown)
Representation: Counsel:
D. Carroll (Applicant)
R. Herps (Crown)
Solicitors:
B. Sandland Legal Aid NSW (Applicant)
S. Kavanagh - Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/124665
Decision under appeal

Date of Decision:

2012-05-03 00:00:00

Before:

Sides DCJ

File Number(s):

2011/124665

Judgment

LATHAM J: I agree with Grove AJ.

BUTTON J: I agree with Grove AJ.

GROVE AJ: On 3 May 2012, the applicant appeared before Sides DCJ at Parramatta District Court where he pleaded guilty to breaking and entering a dwelling house and committing a serious indictable offence namely intimidation (count 1) and assault occasioning actual bodily harm (count 2). Both offences occurred on 15 April 2011. His Honour was asked to take into account pursuant to the Form 1 procedure an offence of entering a vehicle without consent contrary to s 6A of the Summary Offences Act 1988 (NSW). This offence occurred on 8 April 2011 and carried a maximum penalty of 4 penalty units, that is a fine of up to $440. It was not an offence for which imprisonment could be imposed.

Giving ex tempore reasons, his Honour sentenced the applicant on count 1 to a non-parole period of 18 months with a total term of 3 years commencing on 15 April 2012 and on count 2 to a non-parole period of 6 months and a total term of 8 months commencing on 15 December 2011.

Immediately prior to formal imposition of those sentences, his Honour said:

"The Court, I think, omitted to say that when considering deterrence and retribution in connection with count 1 it took into account the matter on the Form 1 schedule relating to the motor vehicle."

The single ground of appeal is:

"His Honour erred in placing greater weight on personal deterrence and retribution in connection with Count 1 by virtue of an offence on a Form 1 (enter vehicle without consent of owner) which had as a maximum penalty a fine".

A lengthy statement of agreed facts was put before the Court. For present purposes, it will suffice to extract there from a short sketch of some of them. Near to 4:00am on 15 April 2011, residents, Mr and Mrs Esprisito, were disturbed by external noise and saw a Honda Jazz motor…

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 The Queen

Details

AGLC: Marshall v The Queen [2013] NSWCCA 16
Case: [2013] NSWCCA 16
Decision Date: 13 February 2013

CaseChat Overview and Summary

In the case of Marshall v The Queen, the appellant, Marshall, was found guilty of breaking and entering a dwelling with the intent to commit a serious indictable offence. The appellant pleaded guilty to the charges and was subsequently sentenced by the trial judge. Marshall appealed against his sentence, arguing that the trial judge erred by placing undue weight on a matter recorded on Form 1, a document related to a previous offence. The appeal was heard by the High Court of Australia.

The primary legal issue before the court was whether the trial judge had erred in the sentencing process by giving excessive weight to the Form 1 matter. The appellant argued that the offence in question was punishable by a fine and, as such, should not have been considered as heavily as it was. The appellant contended that this error in sentencing led to an overall harsher sentence than would otherwise have been imposed. The central question was whether this constituted a significant error that warranted a reduction in the sentence.

The High Court examined the sentencing principles and the trial judge's assessment of the evidence. The court found that while the trial judge did consider the Form 1 matter, it was not the sole factor influencing the sentence. The court held that the trial judge had adequately considered all relevant factors and did not place disproportionate weight on the Form 1 matter. Consequently, the appeal was dismissed, and the original sentence was upheld. The High Court emphasised the importance of judicial discretion in sentencing and the need for appellate courts to be cautious in interfering with the trial judge's assessment.

Orders