R v Marshall - [1994] QCA 161

IN THE COURT OF APPEAL	[1994] QCA 161
SUPREME COURT OF QUEENSLAND

C.A. No. 78 of 1994

Brisbane

[R. v. Marshall]

T H E Q U E E N

WARREN KEVIN MARSHALL

Applicant

The President
Mr Justice Pincus
Mr Justice Byrne

Judgment delivered 20/05/1994

Separate reasons for judgment delivered by the President, Mr Justice Pincus and Mr Justice Byrne. The President agreeing with the orders proposed by Mr Justice Pincus. Mr Justice Byrne dissenting.

1.Application for leave to appeal against sentence granted.
2.Appeal allowed.
3.Sentence imposed below is set aside and in lieu thereof substitute a sentence of 2 years

imprisonment to take effect from 28 February 1994, with a recommendation that the applicant be considered for parole after 9 months subject to the conditions imposed by the primary Judge below, namely:

(a) that the applicant refrain from being in possession of any dangerous drugs specified in the Drugs Misuse Act except such as may have been lawfully prescribed for the applicant's use by a legally qualified medical practitioner;

(b) that the applicant undergo during the period of his parole such medical, psychological and psychiatric examination, treatment, counselling and advice, in respect of the use of any dangerous drug specified in the Drugs Misuse Act as may reasonably be required by the applicant's community correctional officer; and

(c) that the applicant undergo any random test for the presence of drugs ordered by his

community correctional officer.

4.The time the applicant spent in custody prior to 28 February 1994 is not to be taken to be

imprisonment already served under his sentence.

CATCHWORDS:CRIMINAL LAW - sentence - whether manifestly excessive - whether significance in failure to allow for last minute offer of plea of guilty to a lesser charge not mentioned in the indictment -application of s. 13 of the Penalties and Sentences Act 1992.

Counsel:	Mr G P Long for applicant Mr P Callaghan for Crown
Solicitors:	Legal Aid Office for applicant

Director of Prosecutions for Crown

Hearing Date:11/05/1994

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 20/05/94

The circumstances giving rise to this application are set out in the judgment of Byrne J.. I agree with his Honour's remarks, subject to one significant qualification.

In my opinion, the appellant's offer to plead guilty to the only offence of which he was convicted was a relevant matter to be brought to account in the exercise of the sentencing discretion. Such a conclusion is clearly consistent with the policy enunciated in section 13 of the Penalties and Sentences Act 1992. What weight is given to the offer may depend upon a variety of other circumstances, including any terms attached to the offer and the time at which it is made.
It follows that the sentencing discretion miscarried, which is confirmed to some extent by the imposition of a head sentence at, or near, the top of the range. The circumstances, including considerations personal to the appellant, do not warrant such a sentence.

I am content to join in…

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 [1994] QCA 161
Case: [1994] QCA 161
Decision Date: 20/05/1994

CaseChat Overview and Summary

In this case, the applicant, Warren Kevin Marshall, appealed against the sentence imposed on him by the lower court. The applicant was convicted of unlawful wounding and sentenced to imprisonment for two years and six months, with a recommendation for parole after serving one year of the sentence. The applicant argued that the sentence was manifestly excessive and that the lower court failed to consider his offer to plead guilty to the offence of unlawful wounding, which was made on the eve of the trial.

The legal issues before the court were whether the sentence was manifestly excessive and whether the lower court's failure to consider the applicant's offer to plead guilty to unlawful wounding warranted interference. The court considered the policy enunciated in section 13 of the Penalties and Sentences Act 1992, which provided that an offer to plead guilty to an offence of which an accused is ultimately convicted is relevant when considering sentence.

The court found that the sentencing discretion miscarried because the lower court failed to consider the applicant's offer to plead guilty to unlawful wounding. The court also noted that the applicant had a very unfortunate childhood, which led to the inference that the life into which he had drifted, that of a heavy user of alcohol and other drugs and a persistent thief, appeared to be attributable, in part at least, to the circumstances of his upbringing. The court found that the head sentence imposed was towards the top of the range and did not take into account the applicant's personal circumstances, which were deserving of sympathy.

The court set aside the sentence imposed by the lower court and in lieu thereof substituted a sentence of two years imprisonment, to take effect from 28 February 1994, with a recommendation that the applicant be considered for parole after nine months. The court also noted that the time the applicant spent in custody prior to 28 February 1994 was not to be taken to be imprisonment already served under his sentence.

The final orders of the court were that the applicant's application for leave to appeal against sentence was granted, the appeal was allowed, and the sentence imposed by the lower court was set aside and replaced with a sentence of two years imprisonment, with a recommendation that the applicant be considered for parole after nine months. The court also noted that the time the applicant spent in custody prior to 28 February 1994 was not to be taken to be imprisonment already served under his sentence.

Orders