R v Marsh - [2017] ACTSC 405

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Marsh
Citation:	[2017] ACTSC 405
Hearing Date:	11 December 2017
DecisionDate:	15 December 2017
Before:	Burns J
Decision:	See [33]-[44]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – found guilty after trial by jury of 10 counts of indecent assault and one count of buggery – historic offences – Crimes Act 1900 (ACT) ss 79 and 81 as at 1979 and 1980 – offender was school teacher and coach of victim –– certain circumstances taken into account in determining objective seriousness of offences – offences in low, mid and upper range – high moral culpability – whether maximum penalty applies in relation to offences of indecent assault – whether to take into account legislature’s change in attitude – whether minimum penalty applies in relation to offence of buggery – Crimes (Sentencing) Act 2005 (ACT) s 7 – subjective features – person of otherwise good character – carer for mother – age and ill-health – terms of imprisonment imposed
Legislation Cited:	Crimes Act 1900 (ACT) ss 79, 81 (as at 1979/1980) Crimes (Sentencing) Act 2005 (ACT) ss 7, 33
Cases Cited:	R v Hall [2017] NSWCCA 313 R v Ronen [2006] NSWCCA 123; 161 A Crim R 300 R v Scheeren [2014] ACTSC 272
Parties:	The Queen (Crown) Garry Marsh (Offender)
Representation:	Counsel Ms J Campbell (Crown) Mr G Walsh (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Greg Walsh Co (Offender)
File Number:	SCC 4 of 2016

BURNS J:

Garry Leslie Marsh, on 25 August 2017, you were found guilty after a trial by jury of 10 counts of indecent assault and one count of buggery. You were originally charged with 12 counts of indecent assault and the one count of buggery. There was a directed verdict of not guilty with respect to Count 11, a count of indecent assault, on 23 August 2017, being the third day of your trial. The jury returned a verdict of not guilty on Count 1, which was also a count of indecent assault. You were found guilty on the remainder of the charges.

These offences were all committed against the same victim in 1979 or 1980, when the victim was aged 12 or 13 and was a student at St Edmund's College. You were a teacher at that school and you were 33 or 34 years old at the time. At the time of these offences, you were the coach of a school football team in which the victim played.

The maximum penalty for the offence of buggery, contrary to s 79 of the Crimes Act 1900 (ACT) as at 1979 and 1980, is life imprisonment, or any term not less than five years imprisonment. The maximum penalty for the offence of indecent assault upon a male, contrary to s 81 of the Crimes Act 1900 (ACT) as at 1979 and 1980, is five years imprisonment.

Issues arose in the sentence proceedings as…

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 Marsh

Details

AGLC: R v Marsh [2017] ACTSC 405
Case: [2017] ACTSC 405
Decision Date: 15 December 2017

CaseChat Overview and Summary

The appellant, Marsh, was found guilty after trial by jury of ten counts of indecent assault and one count of buggery, all of which were historic offences. The court was required to determine an appropriate sentence in light of the seriousness of the crimes, the moral culpability of the offender, and various mitigating factors. Marsh, a former school teacher and coach of the victim, was found to have high moral culpability due to the nature of the offences. The court had to decide whether the maximum penalty should apply to the offences of indecent assault and whether the legislature’s change in attitude towards such offences should be taken into account. Additionally, the court had to determine whether a minimum penalty should apply in relation to the offence of buggery.

In assessing the objective seriousness of the offences, the court found them to be in the low, mid, and upper ranges. The court also considered the subjective features of the offender, including Marsh’s otherwise good character, his role as a carer for his mother, and his age and ill-health. Under the Crimes (Sentencing) Act 2005 (ACT), the court had to weigh these factors against the gravity of the crimes committed. Ultimately, the court decided on a term of imprisonment that balanced the need for punishment and deterrence with the mitigating circumstances presented.

The court's reasoning was grounded in the principles of sentencing, taking into account both the statutory framework and the specific facts of the case. The court determined that while the offences were serious, the mitigating factors warranted a sentence that reflected Marsh’s personal circumstances. The final orders detailed the specific terms of imprisonment imposed, reflecting the court’s balanced approach to sentencing in this complex case.

Orders

Orders of the court

See [33]-[44]

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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