Marshall v R [2024] NSWCCA 194

Marshall v R [2024] NSWCCA 194

The original sentence of imprisonment for 2 years and 3 months, with a non-parole period of 1 year and 5 months, was manifestly excessive given the objective gravity of the offending, which was at the lower end of the range for break and enter and where the damage constituting the serious indictable offence was minor. A fixed term sentence of 15 months, backdated to the date of arrest, more appropriately reflects proportionality and the principle of totality, leaving decisions about time to be served in custody or on parole to the Parole Authority.

Parties
Applicant: Matthew Marshall; Respondent: Rex
Jurisdiction
Australia
Judgment Date
28 October 2024
Procedural Posture
Criminal Appeal / Leave to Appeal Against Sentence; Resentencing
Outcome
Appeal allowed; sentence quashed and replaced with a fixed term sentence.
Legal Topics
Appeal Against Sentence, Break and Enter, Serious Indictable Offence, Principle of Totality, Manifest Excess, Sentencing Discretion, Concurrency and Cumulation, Role of Parole Authority
Criminal Law Appeal Against Sentence Break and Enter Serious Indictable Offence Principle of Totality Manifest Excess Sentencing Discretion Concurrency and Cumulation +1 more

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Parties

Matthew Marshall

Applicant

Rex

Respondent

Procedural Posture

Criminal Appeal / Leave to Appeal Against Sentence; Resentencing

Legal Issues

  1. 1 Whether the sentencing judge erred by failing to consider principles of totality in the length, structure and backdating of the sentence
  2. 2 Whether the sentence imposed was manifestly excessive such that a different sentence was warranted at law
  3. 3 Appropriate sentence on resentencing

Ratio Decidendi

The original sentence of imprisonment for 2 years and 3 months, with a non-parole period of 1 year and 5 months, was manifestly excessive given the objective gravity of the offending, which was at the lower end of the range for break and enter and where the damage constituting the serious indictable offence was minor. A fixed term sentence of 15 months, backdated to the date of arrest, more appropriately reflects proportionality and the principle of totality, leaving decisions about time to be served in custody or on parole to the Parole Authority.

Court Disposition

Appeal allowed; sentence quashed and replaced with a fixed term sentence.

Orders

  • Grant leave to appeal
  • Allow the appeal