R v Marszalek [2023] NSWDC 574

R v Marszalek [2023] NSWDC 574

The application was refused because the evidence did not establish that the Offender was unable to participate in the sentence proceedings. Even assuming deterioration since March 2023, there was no basis to conclude that he was so physically unwell that he could not participate, and the medical condition and terminal illness could instead be considered in the sentencing discretion.

Jurisdiction
Australia
Judgment Date
10 November 2023
Procedural Posture
Criminal / Application for a Permanent Stay of Sentence Proceedings After Guilty Plea and Committal for Sentence
Outcome
Application for a permanent stay of sentence proceedings refused
Legal Topics
['permanent Stay of Sentence Proceedings' 'ill Health of Offender' 'abuse of Process' 'fairness and Oppression']
['criminal Procedure' 'sentencing'] ['permanent Stay of Sentence Proceedings' 'ill Health of Offender' 'abuse of Process' 'fairness and Oppression']

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Procedural Posture

Criminal / Application for a Permanent Stay of Sentence Proceedings After Guilty Plea and Committal for Sentence

Legal Issues

  1. 1 ["Whether the Offender's ill health, deteriorating health and prognosis justified a permanent stay of sentence proceedings." 'Whether continuation of the sentence proceedings would involve unacceptable injustice or unfairness, be unfairly and unjustifiably oppressive, be out of accord with common humanity, or bring the administration of justice into disrepute.' 'Whether the evidence established that the Offender was unable to participate in the sentence proceedings because of physical ill health and unlikely to become physically healthy enough to do so in the foreseeable future.']

Ratio Decidendi

The application was refused because the evidence did not establish that the Offender was unable to participate in the sentence proceedings. Even assuming deterioration since March 2023, there was no basis to conclude that he was so physically unwell that he could not participate, and the medical condition and terminal illness could instead be considered in the sentencing discretion.

Court Disposition

Application for a permanent stay of sentence proceedings refused

Orders

  • ['The application to permanently stay the sentence proceedings is refused.' 'The matter is to proceed to sentence.']