MARKS, Simon Christopher v R [2009] NSWCCA 24

MARKS, Simon Christopher v R [2009] NSWCCA 24

The appeal was allowed because the sentencing judge failed to distinguish adequately between the individual losses and aggravating factors for each charge, wrongly concluded that there were no special circumstances despite material concerning mental illness and first custody, and imposed an excessive degree of accumulation producing a manifestly excessive aggregate non-parole period. The re-opening ground failed because the applicant suffered no prejudice and the corrected sentence was not more onerous.

Jurisdiction
Australia
Judgment Date
13 February 2009
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Leave to appeal granted, appeal allowed, sentences quashed and new sentences imposed.
Legal Topics
['dishonestly Obtain a Financial Advantage' 'sentence Appeal' 'aggravating Factors' 'mitigating Factors' 'special Circumstances' 'totality' 'manifest Excess']
['criminal Law' 'sentencing'] ['dishonestly Obtain a Financial Advantage' 'sentence Appeal' 'aggravating Factors' 'mitigating Factors' 'special Circumstances' 'totality' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred in treating breach of trust, substantial loss and planning as aggravating factors.' 'Whether the sentencing judge failed separately to consider aggravating factors and the amount of loss for each individual charge.' 'Whether the sentencing judge failed to consider significant mitigating factors, including mental illness, assistance to authorities, contrition, rehabilitation and first custodial sentence.' 'Whether the aggregate sentence was manifestly excessive having regard to the degree of accumulation.' 'Whether the sentencing judge erred in re-opening and re-sentencing the applicant under s 43 of the Crimes (Sentencing Procedure) Act 1999.']

Ratio Decidendi

The appeal was allowed because the sentencing judge failed to distinguish adequately between the individual losses and aggravating factors for each charge, wrongly concluded that there were no special circumstances despite material concerning mental illness and first custody, and imposed an excessive degree of accumulation producing a manifestly excessive aggregate non-parole period. The re-opening ground failed because the applicant suffered no prejudice and the corrected sentence was not more onerous.

Court Disposition

Leave to appeal granted, appeal allowed, sentences quashed and new sentences imposed.

Orders

  • ['Grant leave to appeal and allow the appeal.' 'Quash the sentences imposed upon the applicant by Nield DCJ on 1 June 2007.' 'On charge 1, sentence the applicant to imprisonment for 1 year and 8 months with a non-parole period of 1 year and 2 months commencing on 23 January 2007 and expiring on 22 March 2008, with a...