Marshall v R [2013] NSWCCA 16

Marshall v R [2013] NSWCCA 16

There was no statutory inhibition on taking into account an offence punishable only by fine when imposing a custodial sentence for the primary offence. The sentencing judge's reference to deterrence and retribution showed reliance on the accepted Form 1 principles and did not demonstrate that he impermissibly extended the custodial sentence for count 1 or lost focus on sentencing for the primary offence. The ground of appeal was not made out.

Jurisdiction
Australia
Judgment Date
13 February 2013
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['appeal Against Sentence' 'guilty Plea' 'break and Enter' 'assault Occasioning Actual Bodily Harm' 'form 1 Offences' 'personal Deterrence' 'retribution']
['criminal Law' 'sentencing' 'criminal Procedure'] ['appeal Against Sentence' 'guilty Plea' 'break and Enter' 'assault Occasioning Actual Bodily Harm' 'form 1 Offences' 'personal Deterrence' 'retribution']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by taking into account, for the purposes of personal deterrence and retribution on count 1, a Form 1 offence that was punishable only by a fine.' 'Whether the Form 1 offence impermissibly increased the custodial sentence imposed for count 1.']

Ratio Decidendi

There was no statutory inhibition on taking into account an offence punishable only by fine when imposing a custodial sentence for the primary offence. The sentencing judge's reference to deterrence and retribution showed reliance on the accepted Form 1 principles and did not demonstrate that he impermissibly extended the custodial sentence for count 1 or lost focus on sentencing for the primary offence. The ground of appeal was not made out.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']