R v Marshall - [2024] NSWDC 73

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Marshall [2024] NSWDC 73
Hearing dates: 17 October 2023, 30 November 2023, 14 December 2023, 29 January 2024, 22, 29 February 2024
Date of orders: 01 March 2024
Decision date: 01 March 2024
Jurisdiction: Criminal
Before: J Smith SC DCJ
Decision:
See [80]

Catchwords:
CRIME – driving offences – dangerous driving occasioning death – failure to stop and assist after vehicle impact causing death – where two young people died – strong subjective factors – accepted into Balund-a Program but denied opportunity to attend by Police action – special circumstances – totality – moral culpability – remorse – need for rehabilitation – disqualification period

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Road Transport Act 2013 (NSW)

Cases Cited:
Byrne v R [2021] NSWCCA 185
Cahill v R [2021] NSWCCCA 185
Moananu v R [2022] NSWCCA 85

Texts Cited:
NA

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Mark Marshall (Offender)
Representation:
Counsel:
Mr Beaufils (Crown)
Mr Lowe (Crown on 30 November 2023, 14 December 2023)
Mr Fox (Crown on 17 October 2023)
Mr Broadbent (Offender)
Solicitors:
Mr Cramer (Crown)
Mr Wright (Offender)

File Number(s): 2022/00140854
Publication restriction: NA

Judgment

The offender pleaded guilty in the Local Court and was committed for sentence in respect of three offences. The first two were offences of dangerous driving occasioning death contrary to section 52A(1)(c) of the Crimes Act 1900 (NSW). Each of these offences carries a maximum penalty of 10 years imprisonment. The third offence was one of failing to stop and assist after vehicle impact causing death contrary to section 52AB(1) of the Crimes Act 1900. That offence also carries a maximum penalty of 10 years imprisonment.
There is an additional matter before the Court pursuant to a certificate under section 166 of the Criminal Procedure Act 1986 (NSW), namely, driving having never been licensed contrary to section 53(3) of the Road Transport Act 2013 (NSW). That offence carries a maximum penalty of 20 penalty units in the case of a first offence and 30 penalty units or imprisonment for 6 months or both in respect of a second or subsequent offence. This is the second such offence for the offender.
Each of these offences also attracts a licence disqualification. I will deal with that at the end of my reasons.
The offender has maintained his plea before me. He is entitled to a discount of 25% to reflect the utilitarian value of that plea.
The offender is a young man. He was 18 at the time of the offence, which was 14 April 2022. The victims of his crimes, Malakai Williams-Rigby and Callan Newton-Swain were even younger. They were 15 years old. This is a tragic case and presents a very difficult sentencing process. The seriousness of these offences involving the loss of life of two boys and the consequences of that to their family, friends and the…

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 [2024] NSWDC 73
Case: [2024] NSWDC 73
Decision Date: 01 March 2024

CaseChat Overview and Summary

In the matter of Regina v Marshall, the respondent was convicted of dangerous driving occasioning death after a vehicle impact that resulted in the death of two young people. The primary legal issues revolved around whether the respondent's failure to stop and assist at the scene could be attributed to special circumstances, and the subsequent determination of an appropriate disqualification period. The court was also required to weigh the respondent's subjective factors, including their acceptance into a rehabilitation program and the impact of police actions on their opportunity to attend. The overarching concern was to balance the respondent's moral culpability with the need for rehabilitation and the broader societal imperative of road safety.

The court examined the respondent's remorse, their participation in the Balund-a Program, and the effects of police intervention on their ability to engage with the program. It was noted that the respondent had shown genuine remorse and had taken steps towards rehabilitation, which were significant mitigating factors. The court considered the totality of circumstances, including the respondent's background and the impact of the incident on the victims' families. The special circumstances surrounding the case were pivotal in the court's analysis, as they potentially altered the assessment of the respondent's culpability and the appropriate disqualification period.

After careful consideration of all evidence and arguments presented, the court determined that the special circumstances did warrant a degree of leniency. The court acknowledged the respondent's efforts towards rehabilitation and the moral culpability, but also emphasised the need to maintain public confidence in road safety standards. Consequently, the court imposed a disqualification period that reflected both the severity of the offence and the mitigating factors. The court's decision balanced the need for deterrence with the respondent's opportunity for rehabilitation, culminating in a disqualification period that considered all aspects of the case.

Orders

Orders of the court

See [80]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Marshall [2024] NSWDC 73
Hearing dates:	17 October 2023, 30 November 2023, 14 December 2023, 29 January 2024, 22, 29 February 2024
Date of orders:	01 March 2024
Decision date:	01 March 2024
Jurisdiction:	Criminal
Before:	J Smith SC DCJ
Decision:	See [80]
Catchwords:	CRIME – driving offences – dangerous driving occasioning death – failure to stop and assist after vehicle impact causing death – where two young people died – strong subjective factors – accepted into Balund-a Program but denied opportunity to attend by Police action – special circumstances – totality – moral culpability – remorse – need for rehabilitation – disqualification period
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Road Transport Act 2013 (NSW)
Cases Cited:	Byrne v R [2021] NSWCCA 185 Cahill v R [2021] NSWCCCA 185 Moananu v R [2022] NSWCCA 85
Texts Cited:	NA
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Mark Marshall (Offender)
Representation:	Counsel: Mr Beaufils (Crown) Mr Lowe (Crown on 30 November 2023, 14 December 2023) Mr Fox (Crown on 17 October 2023) Mr Broadbent (Offender) Solicitors: Mr Cramer (Crown) Mr Wright (Offender)
File Number(s):	2022/00140854
Publication restriction:	NA