R v Marshall

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.