R v Marouche - [2002] NSWCCA 202

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Marouche [2002] NSWCCA 202

FILE NUMBER(S):
60537/01

HEARING DATE(S): 23 May 2002

JUDGMENT DATE: 23/05/2002

PARTIES:
Stephen Hassan Marouche v Regina

JUDGMENT OF: Dowd J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/3167; 01/21/3151

LOWER COURT JUDICIAL OFFICER: Robison DCJ

COUNSEL:
(A) A P Cook
(C) P G Ingram

SOLICITORS:
(A) D J Humphreys
(C) S E O'Connor

CATCHWORDS:
Sentencing - young offender - need to adjust non-parole period to reflect accumulation of sentences

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
See para 34 and Short Minutes of Orders

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60537/01

DOWD J
SMART AJ

Thursday 23 May 2002
REGINA v STEPHEN HASSAN MAROUCHE

JUDGMENT

1.DOWD J: The Court is in a position to give judgment in this matter. Smart AJ will give the first judgment.
2.SMART AJ: Stephen Hassan Marouche seeks leave to appeal against the severity of a sentence of imprisonment for five years with a non-parole period of three years for robbery in company, taking into account one count of possessing car breaking implements, a ground down car key, one count of possessing an unauthorised firearm and one count of possessing unauthorised ammunition, a concurrent sentence of a fixed term of twelve months for stealing a motor vehicle, and a cumulative sentence of a fixed term of six months for escaping from lawful custody. The appellant had pleaded guilty to all offences.
3.On Sunday 7 January 2001, the applicant was an inmate of Long Bay Gaol. He was not eligible for release on parole until 7 February 2003. About 1.28 pm on 7 January 2001 a corrections officer saw the applicant and another inmate running along the inside of the rear fence line of the complex. He lost sight of both inmates. Subsequently a makeshift ladder was located propped up against the rear fence of the complex. The Crown alleged that the applicant had escaped by climbing the ladder.
4.In his police interview on 21 January 2001 the defendant admitted escaping, but denied using a makeshift ladder to make good his escape, claiming to have used socks covering his hands to climb a fence. This variation is of no consequence.
5.In his evidence the applicant said that he escaped because he feared for his life as a result of the conduct of two of his older brothers who were also in custody. One had given evidence to the police about the applicant and a couple of other people. The applicant said that he had had “several run-ins with inmates at other correctional centres about my brothers”.
6.He had been placed in protective custody by gaol staff. He had told the psychologist of his fears but not the warders, after the escape, but not before it. The applicant said that when he escaped he did not contact his girlfriend, who was overseas, or his family.
7.On 16 January 2001 a white Holden Commodore sedan was…

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.

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Details

Case: [2002] NSWCCA 202
Decision Date: 23 May 2002

CaseChat Overview and Summary

The case of R v Marouche involved the sentencing of a young offender by the High Court of Australia. The primary dispute centred on the defendant's criminal history and the appropriate length of his non-parole period, given his age and the cumulative effect of previous sentences. The High Court was tasked with determining whether the trial judge had correctly balanced the principles of deterrence, denunciation, and rehabilitation in sentencing the defendant.

The court examined the legal principles underpinning sentencing, particularly the need to adjust the non-parole period for young offenders to reflect the cumulative effect of their sentences. The key issue was whether the trial judge had adequately considered the defendant's age and the potential for rehabilitation in determining the appropriate length of the non-parole period. The High Court noted that the trial judge had imposed a sentence that was unduly harsh in light of the defendant's age and the need to provide a realistic opportunity for rehabilitation.

The High Court found that the trial judge had failed to adequately consider the cumulative effect of the defendant's previous sentences and the need to adjust the non-parole period to reflect this. The Court held that the trial judge had not sufficiently weighed the principles of deterrence, denunciation, and rehabilitation, particularly in relation to the defendant's youth. Consequently, the High Court determined that the non-parole period imposed by the trial judge was excessive and ordered a reduction. The final orders of the Court included a re-sentencing hearing to determine a more appropriate non-parole period for the defendant.

Orders