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R v Marschall

R v Marschall

Case [2002] NSWCCA 197 21 May 2002

Sentencing

Criminal Law

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Reported Decision:
(2002) 129 A Crim R 381

New South Wales

Court of Criminal Appeal

CITATION: R v Marschall [2002] NSWCCA 197

FILE NUMBER(S): CCA 60701/02

HEARING DATE(S): 21 May 2002

JUDGMENT DATE:
21 May 2002

PARTIES :

Regina v Lee Anthony Marschall

JUDGMENT OF: Smart AJ at 1

LOWER COURT JURISDICTION: Drug Court

LOWER COURT FILE NUMBER(S) : 1999/0225

LOWER COURT JUDICIAL
OFFICER : Murrell DCJ

COUNSEL : (A] P M Winch
(C) G I O Rowling

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

CATCHWORDS: Sentencing - approach to time spent in full time residential centre when offender being sentenced on termination of Drug Court Program

LEGISLATION CITED: Drug Court Act 1998
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Eastaway CCA unrep. 19 May 1992
R v Cartwright (1989) 17 NSWLR 243 at 258
R v M E Douglas unrep. CCA 4 March 1997
R v Aiken [2001] NSWCCA 40
R v Campbell (1999) NSWCCA 76
R v Thompson {2002] NSWCCA 362
R v B J Smith [1999] NSWCCA 45
R v Everingham unrep. CCA 4 July 1994
R v Baker [1999] NSWCCA 150

DECISION: Appeal dismissed

60701/01

SMART AJ

Tuesday 21 May 2002

REGINA v LEE ANTHONY MARSCHALL

JUDGMENT

1. Lee Anthony Marschall appeals against the asserted severity of final sentences of imprisonment imposed upon him in the Drug Court on 2 October 2001 consequent upon s 12 of the Drug Court Act 1998.

2. On each of Counts 1 and 7 (possess car breaking implements), Count 9 (possess housebreaking implements), Count 10 (steal property from dwelling) and Count 12 (take and drive conveyance without consent of owner) he was sentenced to imprisonment for a fixed term of seven months three weeks from 25 August 2001 to 14 April 2002.

3. On each of Counts 2 and 8 (goods in custody), Counts 3, 5 and 11 (larceny), Counts 4 and 6 (maliciously destroy property) he was sentenced to imprisonment for a fixed term of three months from 25 August 2001

4. On Count 13 (take and drive conveyance) he was sentenced to imprisonment for eight months from 15 April 2002 with a non-parole period of three months from that day to 14 July 2002.

5. On each of Count 14 (drive in a manner dangerous) and Count 15 (drive whilst disqualified) he was sentenced to imprisonment for a fixed term of three months from 15 April 2002 to 14 July 2002.

6. The appellant was initially sentenced on 9 August 1999 pursuant to s 7(2) of the Drug Court Act in respect of offences committed on 17 May 1999, 19 May 1999, 20 June 1999 and 2 July 1999. The judge has set out the facts in relation to such offences on pp 1 and 2 of her remarks on 9 August 1999. At that stage the appellant was to go to Westmount at Katoomba on a drug rehabilitation program.

7. On each of Count 1 (possess car breaking implements), Count 9 (possess…

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 Marschall

Details

AGLC: R v Marschall [2002] NSWCCA 197
Case: [2002] NSWCCA 197
Decision Date: 21 May 2002

CaseChat Overview and Summary

The case before the court involved an offender who had been sentenced following their participation in the Drug Court Program. The offender had spent time in a full-time residential centre as part of their rehabilitation efforts. The central issue before the court was whether the time spent in the residential centre should be considered as pre-sentence custody for the purposes of calculating the offender's sentence. The court was required to determine the appropriate approach to sentencing in this context, particularly in light of the unique nature of the Drug Court Program and the offender's rehabilitation journey.

The court identified the key legal issue as the interpretation of the law concerning the consideration of time spent in a residential centre as part of a drug rehabilitation program. The court had to balance the principles of sentencing, which include the punishment of the offender and their rehabilitation, with the specific requirements of the Drug Court Program. The court considered whether the time spent in the residential centre should be treated as pre-sentence custody, which could potentially reduce the overall sentence, or whether it should be disregarded in the sentencing process.

In reaching its decision, the court examined the purpose and structure of the Drug Court Program, which is designed to provide a therapeutic and rehabilitative approach to offenders with drug-related issues. The court recognised that the residential centre is a critical component of this program, aimed at facilitating the offender's rehabilitation rather than serving as a punitive measure. The court concluded that the time spent in the residential centre should not be treated as pre-sentence custody, as it was not intended to punish the offender but rather to support their rehabilitation. The court emphasised the importance of considering the overall objectives of the Drug Court Program when determining the appropriate sentence.

The court ordered that the time spent in the full-time residential centre should not be considered as pre-sentence custody for the purposes of calculating the offender's sentence. This decision ensures that the sentencing process reflects the rehabilitative intent of the Drug Court Program and supports the offender's journey towards recovery. The court's ruling provides clarity for future cases involving offenders who have participated in similar rehabilitation programs, ensuring that the unique nature of these programs is appropriately recognised in the sentencing process.

Orders