R v Marsanic - [2008] QCA 219

SUPREME COURT OF QUEENSLAND

CITATION:

R v Marsanic [2008] QCA 219

PARTIES:

R
v
MARSANIC, Marko
(applicant/appellant)

FILE NO/S:

CA No 95 of 2008
SC No 1181 of 2007
SC No 216 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2008

JUDGES:

McMurdo P, Muir JA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application for leave to appeal against sentence granted

2.    Appeal allowed only to the extent of setting aside the sentences imposed on counts 1, 2 and 3

3.    Instead, in respect of count 1, the applicant is sentenced to two years and six months imprisonment; in respect of count 2 the applicant is sentenced to 12 months imprisonment; and in respect of count 3 the applicant is sentenced to six months imprisonment

4.    It is ordered that the date the applicant be released on parole be fixed at 16 December 2008

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE

SENTENCE – applicant pleaded guilty on indictment to three counts of possession of dangerous drugs, namely ecstasy, cocaine, cannabis, lysergide and MDEA – applicant pleaded guilty to two summary offences of possessing things and property connected with offences – judge imposed effective sentence of three and a half years imprisonment with parole eligibility fixed at 16 March 2009 – psychological report found applicant to be suffering from poly-substance dependence at time of offending – applicant pleaded guilty at an early stage – applicant was 24 years old and at a difficult time in his personal life at time of offences – applicant completed drug rehabilitation courses and had promising future prospects – whether sentence imposed was manifestly excessive

Drugs Misuse Act 1986 (Qld), s 9

R v de Carteret[2006] QCA 279, considered
R v Eaton [2007] QCA 43, cited
R v Hesketh; ex parte A-G (Qld)[2004] QCA 116, considered
R v Michalas[2007] QCA 38, cited
R v Sartori[2006] QCA 284, considered
R v Stuck[2008] QCA 165, considered
R v Wynyard[2004] QCA 431, considered

COUNSEL:

A J Kimmins for the applicant/appellant
G P Cash for the respondent

SOLICITORS:

Price and Roobottom for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: Marco Marsanic pleaded guilty on 17 March 2008 in the Supreme Court at Brisbane to possession of MDMA (ecstasy) with a circumstance of aggravation (count 1), possession of cocaine (count 2) and possession of cannabis sativa, lysergide and MDEA (a form of ecstasy) (count 3). He also pleaded guilty to the summary offences of possessing a thing (digital scales and razor blades) for use in the commission of crime and possession of property suspected of being…

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 Marsanic

Details

AGLC: R v Marsanic [2008] QCA 219
Case: [2008] QCA 219
Decision Date: 1 August 2008

CaseChat Overview and Summary

In the case of R v Marsanic, the applicant had pleaded guilty to three counts of possession of dangerous drugs and two summary offences. The High Court of Australia was tasked with considering the applicant's appeal against the sentence imposed by the lower court. The applicant sought a reduction in the sentence, arguing that it was manifestly excessive.

The central legal issue before the court was whether the sentence of three and a half years imprisonment with parole eligibility set for March 2009 was appropriate. The applicant contended that the sentence was too severe given his early guilty plea, his age, the fact that he was undergoing drug rehabilitation, and his promising future prospects. The court needed to assess the circumstances of the offence and the applicant's personal situation to determine if the sentence was indeed excessive.

The court found that the sentence imposed by the lower court was manifestly excessive. The court took into account the applicant's early guilty plea, his age, his psychological condition at the time of the offence, and his efforts towards rehabilitation. The court determined that a lesser sentence was appropriate and set aside the sentences imposed on counts 1, 2, and 3. Instead, the court imposed sentences of two and a half years for count 1, 12 months for count 2, and six months for count 3, with parole eligibility set for December 2008. The court also granted leave to appeal and allowed the appeal in part.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed only to the extent of setting aside the sentences imposed on counts 1, 2 and 3

3. Instead, in respect of count 1, the applicant is sentenced to two years and six months imprisonment; in respect of count 2 the applicant is sentenced to 12 months imprisonment; and in respect of count 3 the applicant is sentenced to six months imprisonment

4. It is ordered that the date the applicant be released on parole be fixed at 16 December 2008

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Marsanic [2008] QCA 219
PARTIES:	R v MARSANIC, Marko (applicant/appellant)
FILE NO/S:	CA No 95 of 2008 SC No 1181 of 2007 SC No 216 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	10 July 2008
JUDGES:	McMurdo P, Muir JA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted 2. Appeal allowed only to the extent of setting aside the sentences imposed on counts 1, 2 and 3 3. Instead, in respect of count 1, the applicant is sentenced to two years and six months imprisonment; in respect of count 2 the applicant is sentenced to 12 months imprisonment; and in respect of count 3 the applicant is sentenced to six months imprisonment 4. It is ordered that the date the applicant be released on parole be fixed at 16 December 2008
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – applicant pleaded guilty on indictment to three counts of possession of dangerous drugs, namely ecstasy, cocaine, cannabis, lysergide and MDEA – applicant pleaded guilty to two summary offences of possessing things and property connected with offences – judge imposed effective sentence of three and a half years imprisonment with parole eligibility fixed at 16 March 2009 – psychological report found applicant to be suffering from poly-substance dependence at time of offending – applicant pleaded guilty at an early stage – applicant was 24 years old and at a difficult time in his personal life at time of offences – applicant completed drug rehabilitation courses and had promising future prospects – whether sentence imposed was manifestly excessive Drugs Misuse Act 1986 (Qld), s 9 R v de Carteret[2006] QCA 279, considered R v Eaton [2007] QCA 43, cited R v Hesketh; ex parte A-G (Qld)[2004] QCA 116, considered R v Michalas[2007] QCA 38, cited R v Sartori[2006] QCA 284, considered R v Stuck[2008] QCA 165, considered R v Wynyard[2004] QCA 431, considered
COUNSEL:	A J Kimmins for the applicant/appellant G P Cash for the respondent
SOLICITORS:	Price and Roobottom for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent