R v Marsh - [1993] QCA 452

IN THE COURT OF APPEAL [1993] QCA 452

SUPREME COURT OF QUEENSLAND

C.A. No. 351 of 1993

Brisbane

[R v. Marsh]

T H E Q U E E N
v.
COLIN DOUGLAS MARSH

(Applicant)

________________________________________________________________

The President
Pincus J.A.
Mackenzie J.

________________________________________________________________

Judgment delivered 09/11/93
Judgment of the Court
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_

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED WITH RESPECT TO COUNT 3, PERMITTING CARNAL KNOWLEDGE BY ANAL INTERCOURSE. SENTENCE ON THAT COUNT OF 5 YEARS SET ASIDE, SUBSTITUTE THEREFOR A SENTENCE OF THREE YEARS AND SIX MONTHS IMPRISONMENT WITH A RECOMMENDATION APPLICANT BE CONSIDERED FOR RELEASE ON PAROLE AFTER SERVING ONE YEAR OF HIS SENTENCE. THE SENTENCES IMPOSED BELOW IN RESPECT OF THE OTHER 2 OFFENCES ARE CONFIRMED.

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_

CATCHWORDS: CRIMINAL LAW - indecent dealing - permitting child to have carnal knowledge by anal intercourse - sentence of 5 years imposed with respect to carnal knowledge - whether manifestly excessive - circumstances to be taken into account when considering sentence.

R v. Hackett C.A. No. 144 of 1993.

Counsel:	Mr T Carmody for the Applicant. Mr R J Hunter for the Crown.
Solicitors:	Legal Aid Office for the Applicant. Department of Public Prosecutions for the Crown.

Hearing Date: 01/11/93
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 351 of 1993

Brisbane

Before:

The President
Pincus J.A.
Mackenzie J.

[R v. Marsh]

T H E Q U E E N
v.
COLIN DOUGLAS MARSH

(Applicant)

JUDGMENT OF THE COURT

Delivered 09/11/93

This is an application for leave to appeal against sentence. The applicant pleaded guilty in the District Court to a charge of having committed three sexual offences with a boy aged 12. The offences of which the applicant was convicted were indecent dealing with a child under the age of 16 years, permitting himself to be indecently dealt with by such a child, and permitting the child to have carnal knowledge of him by anal intercourse. The first two offences were charged under s. 210 of the Code; the maximum penalty is 5 years imprisonment for each. The third offence was charged under s. 208 of the Code and the maximum penalty is 14 years imprisonment. The applicant was sentenced to 2 years imprisonment in respect of each of the first two offences and 5 years in respect of the third; there was a recommendation that the applicant be considered for release on parole after having served 1 year and 9 months. The submissions made by Mr Carmody for the applicant concentrated on the third offence, which appears to be one of an unusual character; we were not referred to any case in which a sentence has been imposed for that offence.

The child was a member of a household which lived next door to the applicant, a man aged 48, married with children. The two families knew each other well. The way in which the offences were committed was as follows. When the boy was at the applicant's…

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 [1993] QCA 452
Case: [1993] QCA 452
Decision Date: 9/11/1993

CaseChat Overview and Summary

The case of The Queen v Colin Douglas Marsh, heard in the Court of Appeal of the Supreme Court of Queensland, involves an appeal against sentence for the applicant, Colin Douglas Marsh, who was convicted of three sexual offences involving a 12-year-old boy. Marsh pleaded guilty to indecent dealing with a child under 16, permitting himself to be indecently dealt with by such a child, and permitting the child to have carnal knowledge by anal intercourse. The maximum penalty for the first two offences was five years imprisonment, while the maximum penalty for the third offence was fourteen years imprisonment. Marsh was sentenced to two years imprisonment for the first two offences and five years for the third offence, with a recommendation that he be considered for parole after serving one year and nine months.

The primary legal issue before the court was whether the sentence imposed on Marsh for the offence of permitting carnal knowledge by anal intercourse was manifestly excessive. The court had to consider the circumstances of the offence, the age of the offender and the victim, the nature of the offender's criminal history, the duration of the incident, the lack of physical harm to the victim, and the impact of the offence on Marsh's family relationships. The court also had to take into account the psychiatric opinion regarding the significant psychological damage suffered by the victim.

In delivering the judgment, the court acknowledged that the gravity of sexual offences against young children can vary considerably. It referred to the case of Hackett, where the court had set out sentencing guidelines for sexual offences involving children and noted that the average effective sentence for such offences was just under two years imprisonment. The court also recognised the need for deterrence and the importance of considering the circumstances of each case. In the present case, the court found that the sentence imposed on Marsh for the offence of permitting carnal knowledge by anal intercourse was beyond the proper range, considering the factors favouring leniency. The court reduced the sentence to three years and six months imprisonment, with a recommendation that Marsh be considered for release on parole after serving one year of his sentence. The sentences for the other two offences were confirmed.

In conclusion, the Court of Appeal granted leave to appeal and allowed the appeal with respect to the offence of permitting carnal knowledge by anal intercourse, reducing the sentence to three years and six months imprisonment with a recommendation for parole after one year. The sentences for the other two offences were confirmed.

Orders