R v Marlow - [2003] NSWSC 1130

CITATION: R v Marlow [2003] NSWSC 1130

HEARING DATE(S): 11-20 August, 18 September 2003

JUDGMENT DATE:
5 December 2003

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF: Studdert J

DECISION: Sentenced to imprisonment for a term of nine years, commencing on 1 January 2002 and expiring on 31 December 2010. A non parole period of 6 years 9 months is fixed, commencing on 1 January 2002 and expiring on 30 September 2008. The first date upon which the prisoner is to be eligible for release on parole is 30 September 2008.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, ss 21A, 28

CASES CITED: R v Alexander (1995) 78 A Crim R 141
R v Blacklidge (unreported, NSWCCA, 12 December 1995)
R v Bollen (1998) 99 A Crim R 510
R v Harris (1961) VR 236
R v Isaacs (1997) 41 NSWLR 374
R v Johnson [2003] NSWCCA 129
R v Martin (1981) 2 NSWLR 640
R v Mills (1985) 17 A Crim R 411
R v Oinonen [1999] NSWCCA 310
R v Phelan (1993) 66 A Crim R 446
R v Previtera (1997) 94 A Crim R 76
R v Sandford (1994) 72 A Crim R 160
R v Thomson (2000) 49 NSWLR 383

PARTIES :
Regina v Paul David Marlow

FILE NUMBER(S): SC 70075/02

COUNSEL: B. Newport QC (Crown)
J. Stratton SC (Accused)

SOLICITORS: Director of Public Prosecutions (Crown)
Legal Aid Commission (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT J

Friday 5 December 2003

70075/02 REGINA v PAUL DAVID MARLOW
JUDGMENT

1 HIS HONOUR: Paul David Marlow, the prisoner, stood trial charged with having murdered Christopher William Powell, who met his death on 1 January 2002. The trial of the prisoner began on 11 August 2003. When indicted, the prisoner pleaded not guilty to murder but guilty to manslaughter. That plea was not accepted by the Crown and eventually, on 20 August 2003, the jury returned a verdict of not guilty of murder but guilty of manslaughter. The prisoner was then remanded in custody for evidence and submissions on sentence until 18 September 2003. Time was then taken to reflect upon the matter and hence the prisoner is before me today for sentence.

2 The deceased died as a consequence of injuries inflicted by the prisoner in an attack by the prisoner in the deceased’s home shortly before 2.00 am on New Years Day 2002. Having inflicted what were inevitably fatal injuries using a kitchen knife, the prisoner called 000. By the time an ambulance officer and a police officer attended, death had occurred. The body of the deceased was found on the kitchen floor in a pool of blood wearing only, by way of clothing, satin boxer shorts. Constable Molloy observed a ragged cut across the deceased’s throat and numerous cut and stab wounds, and Ambulance Officer Davies determined that death had occurred prior to his examination of the body.

3 The post mortem examination was conducted by Dr…

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 R v Marlow

Details

AGLC: R v Marlow [2003] NSWSC 1130
Case: [2003] NSWSC 1130
Decision Date: 5 December 2003

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Studdert J heard the case of R v Marlow. Marlow was found guilty of manslaughter but not guilty of murder in the death of Christopher Powell. The court had to determine the appropriate sentence for Marlow, considering the factors of provocation and the severity of the crime. The court found that while the sexual assaults on Marlow by Powell were not consensual, the events leading up to the killing were provoked, reducing the severity of the crime. The court also considered Marlow's background, his lack of prior convictions, and his early plea of guilty to manslaughter. Ultimately, the court sentenced Marlow to a term of imprisonment of nine years, commencing on 1 January 2002 and expiring on 31 December 2010, with a non parole period of six years nine months, commencing on 1 January 2002 and expiring on 30 September 2008. The first date upon which the prisoner is to be eligible for release on parole is 30 September 2008.

Orders