R v Marshall - [2000] VSCA 167

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 191 of 1999

THE QUEEN
	v.
STEVEN ANDREW MARSHALL

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JUDGES:	TADGELL, CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 September 2000
DATE OF JUDGMENT:	5 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 167

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CRIMINAL LAW – Sentencing – Importing a traffickable quantity of Ecstasy – General deterrence – Specific deterrence – Offender's psychiatric illness – Relevance to sentencing – Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.A. Parsons	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C.	Pryles & Defteros

TADGELL, J.A.:

I shall invite Charles, J.A. to deliver the first judgment.

CHARLES, J.A.:

The applicant, who was born on 27 January 1963, pleaded guilty on 26 August 1999 in the County Court at Melbourne to an indictment containing three counts of importing a prohibited import, count 1 referring to not less than a traffickable quantity of 3,4 - methylene-dioxymethamphetamine (Ecstasy), count 2 - cannabis resin and count 3 - cannabis, all contrary to s.233B(1)(b ) of the Customs Act 1901 (Cth). A plea was heard that day, and three witnesses were called on the applicant's behalf, his former wife, his sister and a forensic drug and alcohol counsellor of Forensic Alcohol and Drug Specialist Services, Terrence Hopgood. A curriculum vitae, various character references and medical reports were also tendered on his behalf.

On 2 September 1999 the learned judge sentenced the applicant to four-and-a-half years' imprisonment on count 1, and six months' imprisonment on each of counts 2 and 3. All sentences were directed to commence on 2 September 1999 and his Honour directed that the applicant serve a minimum of three years' imprisonment before becoming eligible for parole.

The applicant now seeks leave to appeal against sentence, the sole ground of his application being that the sentence imposed is manifestly excessive.

The circumstances giving rise to these offences, taken from an agreed summary of facts which was before the sentencing judge, were as follows. The applicant arrived at Tullamarine Airport at 8.45 a.m. on 11 May 1999 on a flight from Los Angeles. At the airport a customs officer selected him for an intuitive search and when his baggage was examined a black and silver anorak jacket was found in it, the customs officers becoming suspicious of it because of its weight. Examination of the jacket showed that inside it was a rectangular package in white wadding and black tape located between the inner and outer lining of the jacket. The package contained a large number of tablets and examination of them indicated the presence of the narcotic substance known as MDMA or Ecstasy. The applicant was arrested and cautioned, and later removed a small plastic bag containing nine tablets, brown resinous matter and dry green vegetable matter from the front of his jeans.

The applicant was questioned by Federal Police and admitted that the packet taken from the front of his jeans contained cannabis, cannabis…

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 [2000] VSCA 167
Case: [2000] VSCA 167
Decision Date: 5 September 2000

CaseChat Overview and Summary

The case of R v Marshall arose in the Supreme Court of a state in Australia, where the appellant was convicted of importing a traffickable quantity of Ecstasy. The appeal was centred on the sentencing aspect of the conviction, with the appellant arguing that the sentence was manifestly excessive. The respondent, the Crown, maintained that the sentence was appropriate given the nature of the offence and the need for deterrence.

The legal issues before the court involved the principles of sentencing in criminal law, particularly focusing on the elements of general and specific deterrence. Additionally, the court needed to determine the relevance of the appellant's psychiatric illness in the context of sentencing. The court was required to balance these factors to ensure that the sentence was just and proportionate.

The court examined the principles of general deterrence, which aimed to discourage similar offences by others, and specific deterrence, which aimed to prevent the appellant from reoffending. The court considered the appellant's psychiatric illness but found that it did not significantly mitigate the seriousness of the offence. The court concluded that the sentence imposed was not manifestly excessive and was justified based on the need to uphold the integrity of the criminal justice system and to serve as a deterrent to others who might consider similar criminal activities.

The final orders of the court were to dismiss the appeal, affirming the sentence imposed by the lower court. The court held that the sentence was within the appropriate range for the offence committed and took into account the need for both general and specific deterrence. The court further noted that the appellant's psychiatric condition, while a mitigating factor, did not warrant a significantly reduced sentence.

Orders