R v Marshall (No 2) - [2022] ACTSC 102

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Marshall (No 2)
Citation:	[2022] ACTSC 102
Hearing Date:	5 May 2022
DecisionDate:	5 May 2022
Before:	Berman AJ
Decision:	(a) For the offence of possessing a drug of dependence (CC2021/6701) I sentence Mr Marshall to the rising of the Court. (b) For the offences of damage property (CC2019/11212) and aggravated burglary with intent to commit theft (CC2019/11209) I re-open the sentences. (c) I cancel the good behaviour orders. (d) For the offence of damage property I impose 12 months’ imprisonment from 25 May 2020 to 24 May 2021. (e) For the offence of aggravated burglary with intent to commit theft I impose 18 months’ imprisonment from 25 May 2020 to 24 November 2021. (f) For the offence of aggravated robbery (CC2021/6700) I impose 3 years’ imprisonment from 21 November 2021 to 20 November 2024. (g) I set a nonparole period of 21 months, from 21 November 2021 to 20 August 2023.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery – found guilty in jury trial – in company and armed with offensive weapon – offender was subject to good behaviour orders associated with suspended sentences for damaging property and aggravated burglary with intent to commit theft – prospects of rehabilitation guarded – youth as a mitigating factor – difficulties in childhood and with mental health issues – importance of general and specific deterrence – sentence of imprisonment imposed for aggravated robbery – good behaviour orders cancelled – retrospective sentences of imprisonment imposed for offences subject to suspended sentence CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – possessing a drug of dependence – where offender had indicated he would plead guilty – where drug was for personal use only – sentenced to the rising of the court
Legislation Cited:	Crimes Act 1900 (NSW), s 94 Criminal Code 2002 (ACT), ss 310, 312, 403 Crimes (Sentence Administration) Act 2005 (ACT), s 110
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Henry [1999] NSWCCA 111; 46 NSWLR 346
Parties:	The Queen ( Crown) Jackson Nathanial-Jai Marshall ( Offender)
Representation:	Counsel S Jerome ( Crown) T Lee ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Number:	SCC 218 of 2021 SCC 219 of 2021

BERMAN AJ:

Facts

On 27 June last year, KA went to the Kippax shops at around midday. He was there to meet up, by pre-arrangement, with the offender in this matter Jackson Marshall. KA said that the purpose of the meeting was so that he could collect $100 from Mr Marshall that he owed to a friend of KA’s, a Mr Wilson. There are suggestions that there might have been a less lawful purpose for the two of them meeting - that the amount to be paid was $1,250 and that it involved something to do…

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 (No 2)

Details

AGLC: R v Marshall (No 2) [2022] ACTSC 102
Case: [2022] ACTSC 102
Decision Date

CaseChat Overview and Summary

In the case of R v Marshall (No 2), the offender, Jackson Nathanial-Jai Marshall, was sentenced by Berman AJ in the Supreme Court of the Australian Capital Territory. Marshall was found guilty of aggravated robbery, in company and armed with a knife, contrary to s 310 of the Criminal Code 2002 (ACT). The court was required to decide the appropriate sentence for this offence, as well as the sentences for other offences committed by Marshall, including possessing a drug of dependence, damage to property, and aggravated burglary with intent to commit theft. Additionally, the court had to determine whether to impose good behaviour orders, re-open the sentences for the other offences, and consider the impact of Marshall's age, mental health, and prospects of rehabilitation on the sentencing.

Berman AJ found that both aggravating circumstances, being in company and armed with an offensive weapon, were present in the aggravated robbery offence. The court assessed the objective seriousness of the offence, taking into account the violent and frightening nature of the crime, the degree of planning, and the impact on the victim. The court also considered the other offences committed by Marshall, the breach of good behaviour orders, and the subjective features of the offender, such as his age, criminal history, and mental health. The court found that full-time custody was the appropriate sentence, taking into account the objective seriousness of the offending, the prospects of rehabilitation, and the need for general deterrence.

The court imposed a sentence of 3 years' imprisonment for the offence of aggravated robbery, with a nonparole period of 21 months. The sentences for the other offences were re-opened, and the court imposed 12 months' imprisonment for the offence of damage property and 18 months' imprisonment for the offence of aggravated burglary with intent to commit theft. The court also cancelled the good behaviour orders and sentenced Marshall to the rising of the court for the offence of possessing a drug of dependence, taking into account the small quantity involved and the sentence for the aggravated robbery offence.

Orders