R v Marshall - [2021] QCA 55

SUPREME COURT OF QUEENSLAND

CITATION:

R v Marshall [2021] QCA 55

PARTIES:

R
v
MARSHALL, Simon Donald Aubrey
(appellant/applicant)

FILE NO/S:

CA No 157 of 2020
CA No 233 of 2020
DC No 810 of 2020
DC No 1476 of 2020
DC No 1492 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane Date of Conviction and Sentence: 21 July 2020 (Sheridan DCJ)

DELIVERED ON:

26 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2021

JUDGES:

Sofronoff P and Morrison JA and Boddice J

ORDERS:

1. The appeal against conviction be dismissed.

2. Leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant pleaded guilty to grievous bodily harm and other offences – where the appellant contends he entered a plea of guilty as a result of poor legal representation – where the appellant also accepts that he was aware of the factual basis relied upon by the Crown for the offence of grievous bodily harm – where there is no basis for a conclusion that the appellant entered his plea of guilty involuntarily

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to four and a half years’ imprisonment on the count of grievous bodily harm and lesser concurrent periods of imprisonment for the remaining offences – where the offence of grievous bodily harm and many of the other offences were committed whilst he was subject to parole and two probation orders – where the appellant was sentenced for a number of other offences committed after the offence of grievous bodily harm as well as some summary offences committed prior to the offence of grievous bodily harm – where the sentence of four and a half years’ imprisonment imposed on the count of grievous bodily harm recognised the totality of the appellant’s criminality for all offences – whether the sentence was manifestly excessive

R v Armstrong[2014] QCA 274, cited
R v Norris[2012] QCA 57, cited
R v Presgrave[2014] QCA 105, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
M T Whitbread for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Boddice J and the orders proposed.
MORRISON JA: I have read the reasons of Boddice J and agree with those reasons and the orders his Honour proposes.
BODDICE J: On 21 July 2020, the appellant pleaded guilty to offences of grievous bodily harm, attempted fraud (two), commit public nuisance, enter premises and commit an indictable offence, fraud, stealing (17), stealing from the person and threats.
On the same date, the appellant was sentenced to four and a half years’ imprisonment on the count of grievous bodily harm…

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 [2021] QCA 55
Case: [2021] QCA 55
Decision Date: 26 March 2021

CaseChat Overview and Summary

The appellant in the case of R v Marshall appealed against his conviction and sentence for grievous bodily harm and other related offences. The trial judge found the appellant guilty on multiple counts, including grievous bodily harm, while the appellant contended that his guilty plea was due to inadequate legal representation. The case was heard by the court which had to address two main issues: whether the appellant's plea of guilty was entered involuntarily due to poor legal advice, and whether the sentence imposed was manifestly excessive or inadequate.

The court examined the appellant's claim that he pleaded guilty because of his lawyer's deficient representation. Despite the appellant's assertions, the court found that there was no evidence to suggest that the appellant's plea was not made voluntarily. The court noted that the appellant was well aware of the factual basis for the offence of grievous bodily harm and had not raised any concerns about his legal representation at the time of the plea. Therefore, the court concluded that the appellant's plea was not the result of inadequate legal advice.

Regarding the sentence, the court assessed whether the four and a half years' imprisonment for grievous bodily harm, along with concurrent sentences for other offences, was manifestly excessive or inadequate. The court recognised that many of the offences were committed while the appellant was on parole and subject to probation orders, and that the sentence took into account the totality of the appellant's criminal conduct. After considering the totality of the circumstances, the court found that the sentence was not manifestly excessive.

The court dismissed the appeal against conviction and denied leave to appeal against the sentence. The decision underscores the importance of voluntariness in a guilty plea and the comprehensive consideration of all relevant factors in sentencing.

Orders

Orders of the court

1. The appeal against conviction be dismissed.

2. Leave to appeal against sentence be refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Marshall [2021] QCA 55
PARTIES:	R v MARSHALL, Simon Donald Aubrey (appellant/applicant)
FILE NO/S:	CA No 157 of 2020 CA No 233 of 2020 DC No 810 of 2020 DC No 1476 of 2020 DC No 1492 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane Date of Conviction and Sentence: 21 July 2020 (Sheridan DCJ)
DELIVERED ON:	26 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2021
JUDGES:	Sofronoff P and Morrison JA and Boddice J
ORDERS:	1. The appeal against conviction be dismissed. 2. Leave to appeal against sentence be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant pleaded guilty to grievous bodily harm and other offences – where the appellant contends he entered a plea of guilty as a result of poor legal representation – where the appellant also accepts that he was aware of the factual basis relied upon by the Crown for the offence of grievous bodily harm – where there is no basis for a conclusion that the appellant entered his plea of guilty involuntarily CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to four and a half years’ imprisonment on the count of grievous bodily harm and lesser concurrent periods of imprisonment for the remaining offences – where the offence of grievous bodily harm and many of the other offences were committed whilst he was subject to parole and two probation orders – where the appellant was sentenced for a number of other offences committed after the offence of grievous bodily harm as well as some summary offences committed prior to the offence of grievous bodily harm – where the sentence of four and a half years’ imprisonment imposed on the count of grievous bodily harm recognised the totality of the appellant’s criminality for all offences – whether the sentence was manifestly excessive R v Armstrong[2014] QCA 274, cited R v Norris[2012] QCA 57, cited R v Presgrave[2014] QCA 105, cited
COUNSEL:	The appellant/applicant appeared on his own behalf M T Whitbread for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent