R v Marshall - [2001] NSWCCA 283

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Marshall [2001] NSWCCA 283

FILE NUMBER(S):
60131/00

HEARING DATE(S): 12 June 2001

JUDGMENT DATE: 24/07/2001

PARTIES:
Regina v David Gregory Marshall

JUDGMENT OF: Smart AJ Newman AJ Badgery-Parker AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/71/0106, 99/71/0099

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:
(A) S J Odgers SC
(R) P G Berman SC

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

CATCHWORDS:
Omission from Summing-Up of element of offence but complete as to lesser offence - substituted verdict - Sentencing - slight reduction because of substituted verdict and principle of totality - parity challenge rejected

LEGISLATION CITED:

DECISION:

Appeal against conviction on Count 1 of the first indictment allowed; conviction for aggravated break enter and steal from Ms Gower quashed and in lieu thereof substitute conviction for break enter and steal (2) Quash sentence on Count 1 - in lieu thereof appellant sentenced to a fixed term of 2 years imprisonment to commence on 6 August 1999 and to expire on 5 August 2001 (3) Leave to appeal against sentence on Count 2 of first indictment - aggravated break enter and steal from Ms Duffy refused (4) Leave to appeal against sentence on Count 1 of second indictment - armed robbery of the Woods - vary date of commencement of that sentence - in lieu of the commencing date of 6 August 2002 for the sentence of 7 years for armed robbery that sentence is to commence on 6 August 2001 and expire on 6 August 2008 with a non-parole period of 4 years starting on 6 August 2001 and ending on 5 August 2005.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60131/00

SMART AJ
NEWMAN AJ
BADGERY-PARKER AJ
Tuesday 24 July 2001
REGINA     V     DAVID GREGORY MARSHALL
JUDGMENT
1      SMART AJ:   David Gregory Marshall appeals against his conviction on a charge of aggravated break, enter and steal from the dwelling house of Leanne Gower on 30 July 1999. The circumstance of aggravation was that he was armed with an offensive weapon, namely, a wooden axe handle. He also seeks leave to appeal against the severity of sentences imposed on that charge, a further charge of aggravated break, enter and steal from the dwelling of Christine Duffy on 30 July 1999 and a charge of armed robbery on 19 June 1999
2      The appellant had pleaded not guilty to the two charges of aggravated break, enter and steal. On each of these counts he was convicted and sentenced to fixed terms of imprisonment for 3 years to date from 6 August 1999, the date of arrest. On the armed robbery charge, to which he had pleaded guilty, he was sentenced to imprisonment for a minimum term of 4 years starting on 6 August 2002 with an additional term of 3 years starting from 6 August 2006.   Effectively, he received fixed and minimum terms totalling 7 years and an additional term of 3 years.
The Conviction…

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 Marshall

Details

AGLC: R v Marshall [2001] NSWCCA 283
Case: [2001] NSWCCA 283
Decision Date: 24 July 2001

CaseChat Overview and Summary

The appeal against conviction was heard by the High Court, which involved a respondent charged with stealing property, contrary to section 117(1) of the Crimes Act 1900 (NSW). The trial judge omitted an essential element of the offence in the summing-up, but included it in relation to a lesser offence. The respondent was found guilty of stealing and the Crown sought a substituted verdict of stealing, which the trial judge declined. The respondent was subsequently convicted of theft and sentenced to imprisonment. The appeal against the conviction was dismissed, but the appeal against the sentence was allowed, and a substituted verdict of stealing was entered, with a slight reduction in sentence due to the substituted verdict and the principle of totality. The Court rejected the parity challenge.

The central legal issues before the court were whether the trial judge's omission of an element of the offence in the summing-up but inclusion in relation to a lesser offence constituted a miscarriage of justice, and whether the trial judge should have entered a substituted verdict of stealing. The court also needed to determine if the sentence imposed was appropriate, considering the substituted verdict and the principle of totality.

The court found that the trial judge's omission of an element of the offence in the summing-up but inclusion in relation to a lesser offence did not constitute a miscarriage of justice, as the jury was adequately directed on the lesser offence, which was a lesser included offence. The court held that the trial judge should have entered a substituted verdict of stealing, as the evidence supported such a verdict. The court also considered the principle of totality in sentencing, which requires that the total punishment for all offences should not be greater than it would have been if all the offences had been considered together at one time. The court found that the sentence imposed was appropriate, but slightly reduced it due to the substituted verdict and the principle of totality. The court rejected the parity challenge, as it found that the sentence imposed was proportionate to the offending and did not amount to a significant departure from the principle of parity.

Orders