R v Marshall - [1999] NSWSC 1267

CITATION: R v Marshall [1999] NSWSC 1267

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): L4/98

HEARING DATE(S): 17 December 1999

JUDGMENT DATE:
20 December 1999

PARTIES :

Regina v Keith Reginald MARSHALL

JUDGMENT OF: Studdert J

COUNSEL : P. Thompson (Crown)
A. Webb (Applicant)

SOLICITORS: Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission (Applicant)

CATCHWORDS: Sentencing; application for determination concerning life sentence for murder; seven stab wounds to body of deceased; application granted; sentence of nineteen years penal servitude with minimum term of thirteen years six months; Sentencing Act, s 13A.

ACTS CITED: Sentencing Act

CASES CITED: R v White (unreported, NSWCCA, 23 June 1998)
R v Stephens [1999] NSWCCA 80
R v Rothapfel (unreported, NSWCCA, 4 August 1992)

DECISION: See para 27

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
STUDDERT J
Monday 20 December 1999

98/004 REGINA v KEITH REGINALD MARSHALL
JUDGMENT
1   HIS HONOUR: This is an application pursuant to s 13A of the Sentencing Act for the determination of a minimum term and an additional term.
2 In June 1989 the applicant, Keith Reginald Marshall, stood trial charged with the murder of a thirty-eight year old man, Richard Stanley Burridge. The jury found him guilty of that offence and on 14 July 1989 I sentenced the applicant to penal servitude for life. It was necessary, of course, as s 19 of the Crimes Act then provided, that such sentence be imposed unless it appeared that the applicant’s culpability for the crime was significantly diminished by mitigating circumstances. I did not find the applicant’s culpability to be significantly diminished. Before sentencing the applicant I had regard to evidence that the prisoner had been drinking intoxicating liquor prior to the commission of the offence but in my remarks on sentence I stated:

“The evidence does not establish on the probabilities therefore that the prisoner was affected by intoxicating liquor at the time that this murder was committed. The evidence does not establish on the probabilities any circumstance whereby the prisoner’s culpability for the crime of which the jury has found him guilty was significantly diminished. No mitigating circumstances having been established, I have no alternative but to sentence the prisoner to penal servitude for life.”

3   The applicant appealed to the Court of Criminal Appeal against his conviction but that appeal was dismissed.
4   It is now over ten years since the applicant was sentenced, so there is no barrier to this application by reason of s 13A(3) of the Sentencing Act.
5   Under s 13A(4A) I am required, in considering the application:

“to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences wherever committed, of which [the applicant] has been convicted at any time…”

The circumstances surrounding the offence

6   Pursuant to Practice Note 57 a statement of the facts of the case was filed and served upon the applicant disclosing the following circumstances:

“(i) Background to events of Friday, 13 May, 1988

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 [1999] NSWSC 1267
Case: [1999] NSWSC 1267
Decision Date: 20 December 1999

CaseChat Overview and Summary

In the matter of R v Marshall, the appellant, a convicted murderer, sought a determination of his sentence. The crime involved the deceased suffering seven stab wounds, leading to his death. The case was heard in the relevant appellate court, which was tasked with assessing the fairness and proportionality of the original sentence. The appellant argued that his life sentence should be reviewed, contending that it was excessive given certain mitigating circumstances.

The court was required to decide whether the original sentence was appropriate under the Sentencing Act. Specifically, the judges had to consider whether the sentence imposed was disproportionate in light of the statutory principles governing life sentences. The court also needed to determine if the minimum term specified in the sentence was justified and whether the appellant's prospects for rehabilitation warranted a lesser sentence.

The court found that the original sentence was indeed disproportionate to the crime committed. In its reasoning, the court highlighted that the seven stab wounds inflicted were severe, but it also noted the mitigating factors presented, such as the appellant's background and potential for rehabilitation. By applying the principles outlined in the Sentencing Act, the court determined that a sentence of nineteen years penal servitude with a minimum term of thirteen years and six months was more appropriate. This decision reflected a balance between the severity of the crime and the appellant's potential for rehabilitation.

The final orders of the court mandated that the appellant's sentence be reduced to nineteen years penal servitude with a minimum term of thirteen years and six months. This decision underscored the importance of considering both the gravity of the offence and the individual circumstances of the offender when determining an appropriate sentence.

Orders