R v Marshall

Case [2010] QCA 29

SUPREME COURT OF QUEENSLAND

CITATION:

R v Marshall [2010] QCA 29

PARTIES:

R
v
MARSHALL, Margaret Rose
(applicant)

FILE NO/S:

CA No 230 of 2009
DC No 222 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

26 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2009

JUDGE:

McMurdo P, Muir JA and Atkinson J
Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS:

1.   Leave to appeal against sentence granted;

2.   Appeal allowed;

3.   Set aside the sentences imposed at first instance, but not the reparation order: and

4.   Substitute, on each count, sentences of three years imprisonment with an order directing that the applicant be released on 4 December 2010, upon her giving security by recognizance in the sum of $2,000, conditioned that she be of good behaviour for a period of two years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted after a trial of one count of defrauding the Commonwealth and one count of dishonestly causing a risk of a loss to a Commonwealth entity – where applicant sentenced to two years and nine months imprisonment on each count, to be served concurrently, with an order for release on recognizance after serving 20 months, conditional on the applicant being of good behaviour for a period of two years – where applicant submitted that the primary judge erred in accepting he was bound to order the applicant’s release after serving 60 - 66 per cent of the head sentence and that fixing the recognizance release date as he did resulted in the sentence being manifestly excessive – whether primary judge failed to have regard to sentencing principles – whether the primary judge gave sufficient weight to the circumstances of the case – whether the primary judge erred in imposing a manifestly inadequate sentence

Crimes Act 1914 (Cth), s 16A, s 19AL, s 19 AM

Bertilone v The Queen [2009] 231 FLR 383; [2009] WASCA 149, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
R v Bernier (1998) 102 A Crim R 44, cited
R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, disapproved
R v de Vroome (1988) 38 A Crim R 146, cited
R v Fermanian [1996] QCA 438, cited
R v Ferrer-Esis (1991) 55 A Crim R 231, cited
R v Gambier [2009] QCA 138, cited
R v Harkness [2001] VSCA 87, cited
R v Mara [2009] QCA 208, considered
R v Mokoena [2009] QCA 36, considered
R v Ngui and Tiong (2000) 1 VR 579; [2000] VSCA 78, cited
R v Nguyen and Tran [1998] 4 VR 394, cited
R v Robertson (2008) 185 A Crim R 441, [2008] QCA 164, considered
R v Ruha, Ruha…

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Details
AGLC
R v Marshall [2010] QCA 29
Case
[2010] QCA 29
Decision Date

CaseChat Overview and Summary

In the matter of R v Marshall, the appellant sought to appeal against the sentence imposed by the primary judge. The appellant was convicted of defrauding the Commonwealth and causing a risk of loss to a Commonwealth entity. The primary judge sentenced the appellant to two years and nine months imprisonment on each count, to be served concurrently, with an order for release on recognizance after serving 20 months, conditional on the appellant being of good behaviour for a period of two years. The appellant argued that the primary judge erred in accepting that they were bound to order their release after serving 60 to 66 per cent of the head sentence and that fixing the recognizance release date as they did resulted in the sentence being manifestly excessive.

The court was required to consider whether the primary judge failed to have regard to sentencing principles, whether the primary judge gave sufficient weight to the circumstances of the case, and whether the primary judge erred in imposing a manifestly inadequate sentence. The court found that the primary judge erred in imposing a manifestly inadequate sentence and that the sentence was manifestly excessive. The court further found that the primary judge failed to have regard to the relevant sentencing principles and did not give sufficient weight to the circumstances of the case.

The appeal was allowed, and the sentences imposed at first instance were set aside, but not the reparation order. The court substituted, on each count, sentences of three years imprisonment with an order directing that the appellant be released on 4 December 2010, upon giving security by recognizance in the sum of $2,000, conditioned that the appellant be of good behaviour for a period of two years. This decision highlights the importance of ensuring that sentences are not manifestly inadequate or excessive and that the primary judge takes into account all relevant sentencing principles and the circumstances of the case.

Orders

Orders of the court

1. Leave to appeal against sentence granted;

2. Appeal allowed;

3. Set aside the sentences imposed at first instance, but not the reparation order: and

4. Substitute, on each count, sentences of three years imprisonment with an order directing that the applicant be released on 4 December 2010, upon her giving security by recognizance in the sum of $2,000, conditioned that she be of good behaviour for a period of two years.

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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