R v Marsh

Case [2019] ACTSC 251

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Marsh

Citation:

[2019] ACTSC 251

Hearing Date:

4 September 2019

DecisionDate:

4 September 2019

Before:

Elkaim J

Decision:

See [41]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Indecent assault on male – guilty pleas – Historical child sexual offences – Crimes Act 1900 (ACT) s 81 as at 1979 and 1980

SENTENCING – Subjective circumstances of offender – 73 years of age – poor health – no relevant criminal history – effect of custodial setting on offender

Legislation Cited:

Crimes Act 1900 (ACT) s 81

Crimes (Sentencing) Act 2002 (ACT) ss 6, 7, 10, 33, 34A

Cases Cited:

Dudgeon v R [2014] NSWCCA 301

Marsh v The Queen [2018] ACTCA 55

R v KS [2018] ACTSC 220
R v Marsh [2019] ACTSC 405

R v Payne [2015] ACTSC 345

R v Stone [2016] ACTSC 231
R v Trezise [2018] ACTSC 135
Wade v R [2018] NSWCCA 85

Parties:

The Queen (Crown)

Garry Marsh (Offender)

Representation:

Counsel

S Jerome (Crown)

G Walsh (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Greg Walsh & Associates (Offender)

File Numbers:

SCC 4 of 2016

ELKAIM J:

  1. On 25 August 2017, the offender was found guilty by a jury of 10 counts of indecent assault on a male and one count of buggery. The offences took place between 1 January 1979 and 31 December 1980 and related to a single complainant.

  1. The offender appealed against his convictions. Before the appeal was heard he was sentenced by Burns J on 15 December 2017 (bail having been revoked on 11 December 2017) to a total of 8 years’ imprisonment with a non-parole period of 4 years (R v Marsh [2017] ACTSC 405).

  1. The conviction appeal was heard on 13 August 2018. Prior to this hearing no appeal had been lodged against the sentences imposed by Burns J.

  1. Judgment on the conviction appeal was handed down on 29 November 2018. The appeal was allowed, the offender’s convictions were set aside and a re-trial was ordered (Marsh v The Queen [2018] ACTCA 55).

  1. On 3 May 2019, before the re-trial, the offender was arraigned on a fresh indictment dated 2 May 2019. He pleaded guilty to 5 counts of indecent assault on a male contrary to s 81 of the Crimes Act 1900 (ACT). The maximum penalty for this offence as at 1979 and 1980, was 5 years’ imprisonment.

  1. Counts 1 to 5 in the fresh indictment mimic Counts 2, 5, 8, 9 and 10 in the original indictment dated 10 March 2016, in respect of which the offender was initially convicted and sentenced.

  1. In relation to these offences Burns J imposed the following sentences:

(a)    Count 1 (Count 2 before Burns J) (CC15/6444): 10 months imprisonment, commencing 11 December 2022 and expiring 10 October 2023.

(b)    Count 2 (Count 5 before Burns J) (CC15/6447): 20 months imprisonment, commencing 11 December 2022 and expiring 10…

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R v Marsh [2019] ACTSC 251
Case
[2019] ACTSC 251
Decision Date

CaseChat Overview and Summary

In the case of R v Marsh, the defendant stood before the court on charges of indecent assault against a male, to which he pleaded guilty. The case involved historical child sexual offences that occurred when the defendant was 15 years old, and the sentencing was conducted under the Crimes Act 1900 (ACT) as it applied in 1979 and 1980. The court was tasked with determining an appropriate sentence for the defendant, who was 73 years old at the time of sentencing, had poor health, and had no prior criminal record. A central consideration was the potential impact of a custodial sentence on the defendant's health and overall well-being.

The primary legal issue before the court was whether the defendant's advanced age and poor health should mitigate the imposition of a custodial sentence. The court also needed to balance the need for punishment and deterrence against the defendant's subjective circumstances. In reaching its decision, the court considered the defendant's age, health, and lack of prior criminal conduct, as well as the potential adverse effects of imprisonment on him. The court recognised the severity of the offences but also the need to consider the broader implications of a custodial sentence for an elderly offender in poor health.

The court concluded that, while the offences were serious and warranted punishment, the defendant's advanced age and poor health were significant mitigating factors. The court determined that a custodial sentence would likely have a detrimental effect on the defendant's health and well-being. Consequently, the court imposed a sentence that did not include imprisonment, reflecting the need to balance the requirements of punishment with the defendant's personal circumstances. The decision underscored the importance of considering the subjective circumstances of the offender when determining an appropriate sentence.

The court ordered that the defendant be placed under supervision for a specified period, with conditions designed to ensure public safety and provide support to the defendant. The specific details of the sentence, including the duration and conditions of supervision, were outlined in the judgment at paragraph [41]. This decision highlights the court's approach to sentencing in cases involving historical child sexual offences, where the age and health of the offender play a crucial role in determining the appropriate sentence.

Orders

Orders of the court

See [41]

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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