Marshall v The Queen - [2011] VSCA 130

COURT OF APPEAL

S APCR 2010 0182

DAVID MARSHALL
	v
THE QUEEN

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JUDGE:	ASHLEY and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 May 2011
DATE OF JUDGMENT:	10 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 130
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Nixon, 27 May 2010)

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CRIMINAL LAW – Sentence – Causing serious injury intentionally – Appellant trained in martial art – Whether sentencing judge misdirected himself as to the effect of delay – Whether sentencing judge erred in finding that appellant’s culpability was high – Whether sufficient weight given to prospect of rehabilitation – Consequences of absconding on bail – Manifest excess – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C G Mandy	Doogue & O’Brien
For the Crown	Mr S Cooper	Mr C Hyland Solicitor for Public Prosecutions

ASHLEY JA:

David Marshall appeals by leave against sentence passed upon him in the County Court on 27 May 2010. On a count of causing serious injury intentionally, the offence having been committed on 16 January 2004, the appellant was sentenced, on a plea of guilty, to three years and six months’ imprisonment, with a non-parole period of 18 months. The judge stated that if the appellant had been convicted after trial he would have sentenced him to four years and three months’ imprisonment, with a non-parole period of two years and three months.

The appellant relies upon the following grounds:

Ground 1
The Learned Sentencing Judge erred at law in misdirecting himself as to the effect of the delay between the commission of the offence and the plea hearing.
Ground 2
The Learned Sentencing Judge erred at law in finding that the Appellant’s culpability was high and accordingly gave too much weight to general deterrence and denunciation.
Ground 3
The Learned Sentencing Judge erred at law in failing to give sufficient weight to the Appellant’s rehabilitation.
Ground 4
The sentence imposed is manifestly excessive, both as to the head sentence and the non parole period.

Circumstances of the offending

The judge summarised the circumstances of the offending as follows:

7On Friday 16 January 2004 the victim, Ben Willison, and three friends met in the city, and they then sat in the Queen Victoria Gardens, where they had some drinks, before they walked back to the Flinders Street Station in order to catch a train to Mitcham. On their arrival at Mitcham Station they walked in a group towards the Maroondah Highway. The three others in the group crossed the highway, while Mr Willison stopped on the median strip between the highway and the service lane in order to tie his shoelaces. A silver Honda Civic motor car was seen to do a U-turn. That car stopped in the service lane. You, Mr Marshall, alighted from the driver’s seat of the car and accused the group of damaging your car; those allegations were denied.
8While Mr Willison was bending down to tie up his shoelace, you walked over to him…

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 [2011] VSCA 130
Case: [2011] VSCA 130
Decision Date: 10 May 2011

CaseChat Overview and Summary

The appellant, Marshall, appealed against his sentence for causing serious injury intentionally, arguing that the sentencing judge misdirected himself regarding the effect of the delay in bringing the matter to court and erred in finding that his culpability was high. The appeal also contended that insufficient weight was given to the prospect of the appellant's rehabilitation and the consequences of his absconding on bail. The appeal was heard by the High Court of Australia.

The legal issues before the court included whether the sentencing judge had erred in his assessment of the appellant’s culpability and the effect of the delay in the proceedings. The court also needed to determine if the sentencing judge had sufficiently considered the prospect of the appellant's rehabilitation and the consequences of his absconding on bail. Additionally, the court had to consider whether the sentence imposed was manifestly excessive.

The court held that the sentencing judge did not misdirect himself regarding the effect of the delay or err in finding that the appellant's culpability was high. The judge had properly assessed the circumstances and the appellant's training in martial arts. The court found that sufficient weight was given to the prospect of rehabilitation, despite the appellant's absconding on bail. The sentence imposed was not manifestly excessive, and therefore the appeal was dismissed. The court's decision affirmed the original sentence, maintaining that the sentencing judge had correctly balanced the various factors in arriving at the punishment.

Orders