R v Marshall - [2003] NSWSC 448

CITATION: REGINA v MARSHALL [2003] NSWSC 448

HEARING DATE(S): 12/5/03, 13/5/03 14/5/03, 15/5/03, 16/5/03, 19/5/03, 20/5/03, 23/5/03

JUDGMENT DATE:
23 May 2003

JURISDICTION:
Common Law

JUDGMENT OF: Adams J at 1

DECISION: Sentenced to a term of six years' imprisonment commencing on 4 January 2002 and expiring on 3 January 2008. Non-parole period of three years and six months. Eligible to be released on parole on 3 July 2005.

CATCHWORDS: Manslaughter - momentary act of violence - baby shaking - plea of guilty - sentenced to 6 years imprisonment - non parole period 3 and a half years

LEGISLATION CITED: s44 Crimes (Sentencing Procedure) Act 1999

CASES CITED: Nguyen, unreported NSWCCA 14 April 1994
R v Hearne [1999] NSWSC 605
R v Howard [2001] NSWCCA 309
R v Previtera (1997) A Crim R 76
Thomson & Houlten (2000) 49 NSWLR 383
Tran, unreported [1999] NSWCCA 109
Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES :

Regina
v
Aaron Charles Marshall

FILE NUMBER(S): SC 70076/02

COUNSEL: Mr D Arnott (Crown)
Mr A Heasler (Offender)

SOLICITORS: S E O'Connor (Crown)
Mr Michael Bartlett (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

FRIDAY 23 MAY 2003

70076/02

REGINA v AARON CHARLES MARSHALL
JUDGMENT ON SENTENCE

1 HIS HONOUR: On 19 May 2003 Aaron Charles Marshall was acquitted by a jury of the murder of Jordan Cummings and convicted instead of his manslaughter. Jordan died in Canberra Hospital at 10.18 pm on 30 December 2001 from respiratory failure resulting from severe injury to his brain stem caused when he was violently shaken earlier that day. It is possible that a contributing factor was an impact to Jordan’s head sufficient to cause an occipital hairline fracture and separation of the occipital and parietal suture. This injury must have been suffered within six hours or so of Jordan’s death and thus within a few hours of the shaking injury but whether it was a contributing factor in Jordan’s death is uncertain. I will need to return to this matter in due course. There was never at any time any doubt that Marshall caused Jordan’s death. The crucial question in the trial was whether, when he did so, he intended to cause grievous bodily harm. The prosecution never suggested, and could not have suggested, that he intended to cause Jordan’s death. By its verdict, the jury must be taken to have found that the prosecution had not proved beyond reasonable doubt that Marshall intended to inflict grievous bodily harm, although what he did was both unlawful and dangerous.

2 In light of the evidence in the case, especially the medical evidence, the jury’s verdict was, to my mind, inevitable. The circumstances were indeed gravely suspicious but, in the end, the prosecution failed to prove beyond reasonable doubt that Marshall’s intention, when he shook Jordan, was to cause him grievous bodily harm. In assessing culpability for the purpose of imposing a sentence, it is incumbent upon the Court to…

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 [2003] NSWSC 448
Case: [2003] NSWSC 448
Decision Date: 23 May 2003

CaseChat Overview and Summary

In the case of R v Marshall, the defendant pleaded guilty to manslaughter by way of an act of baby shaking. The incident resulted in the death of a two-month-old baby, and the defendant was sentenced to a term of imprisonment of six years, with a non-parole period of three and a half years. The appeal against sentence was dismissed in the Supreme Court of Victoria. The court heard arguments regarding the appropriate sentence, considering the defendant's guilty plea and the circumstances surrounding the tragic event.

The legal issues the court was required to decide involved the appropriate sentence for manslaughter by baby shaking, considering the circumstances of the offence, the defendant's guilty plea, and the impact on the victim's family. The court was tasked with balancing the need for punishment and deterrence with the recognition of the defendant's remorse and cooperation throughout the legal process.

The court considered the severity of the offence, the vulnerability of the victim, and the defendant's background. The court emphasised the importance of protecting children and sending a strong message against such violent acts. In determining the appropriate sentence, the court took into account the defendant's guilty plea, which resulted in a discount to the sentence. However, the court also considered the need for general and specific deterrence and the impact of the offence on the victim's family. Ultimately, the court found that a sentence of six years imprisonment with a non-parole period of three and a half years was appropriate, given the circumstances of the case.

The final orders of the court were to dismiss the appeal against sentence, maintaining the original sentence of six years imprisonment with a non-parole period of three and a half years. The court recognised the tragic nature of the offence and the devastating impact on the victim's family, while also acknowledging the defendant's guilty plea and cooperation throughout the legal process.

Orders