Marracos v R [2008] NSWCCA 267

Marracos v R [2008] NSWCCA 267

The sentencing judge did not err in using the standard non-parole period as a reference point or in finding the loaded pistol offence to be in the middle range of objective seriousness, and the 18 month non-parole period for the firearm offence was not manifestly excessive. However, the four year head sentence for count 4 was inconsistent with the judge's findings and s 44(2) of the Crimes (Sentencing Procedure) Act, 1999, and the 18 month sentence for the baton offence was excessive because proportionality required disparity between that less fearsome weapon and the loaded pistol. The sentences on counts 3 and 4 were therefore quashed and replaced.

Jurisdiction
Australia
Judgment Date
19 November 2008
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court on Counts 3 and 4
Outcome
Leave to appeal granted in respect of counts 3 and 4; appeal allowed; sentences on counts 3 and 4 quashed and substituted sentences imposed.
Legal Topics
['standard Non Parole Period' 'possession of Prohibited Weapon' 'possession of Prohibited Firearm' 'manifest Excess' 'totality and Proportionality' 'guilty Plea Discount']
['criminal Law' 'sentencing'] ['standard Non Parole Period' 'possession of Prohibited Weapon' 'possession of Prohibited Firearm' 'manifest Excess' 'totality and Proportionality' 'guilty Plea Discount']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court on Counts 3 and 4

Legal Issues

  1. 1 ['Whether the sentencing judge failed to properly apply Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act, 1999 to the Firearms Act offence.' 'Whether the sentencing judge erred in characterising the Firearms Act offence as in the middle range of objective seriousness.' 'Whether the sentence for possessing a prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act, 1998 was manifestly excessive.' 'Whether the sentence for possessing a prohibited firearm contrary to s 7(1) of the Firearms Act, 1996 was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not err in using the standard non-parole period as a reference point or in finding the loaded pistol offence to be in the middle range of objective seriousness, and the 18 month non-parole period for the firearm offence was not manifestly excessive. However, the four year head sentence for count 4 was inconsistent with the judge's findings and s 44(2) of the Crimes (Sentencing Procedure) Act, 1999, and the 18 month sentence for the baton offence was excessive because proportionality required disparity between that less fearsome weapon and the loaded pistol. The sentences on counts 3 and 4 were therefore quashed and replaced.

Court Disposition

Leave to appeal granted in respect of counts 3 and 4; appeal allowed; sentences on counts 3 and 4 quashed and substituted sentences imposed.

Orders

  • ['Grant leave to appeal in respect of the sentences imposed with respect to counts 3 and 4.' 'In respect of each of those sentences, allow the appeal and quash the sentence.' 'In lieu thereof, sentence the applicant in respect of Count 3 to a period of imprisonment of 12 months to date from 16 September 2008 and...