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Supreme Court 20 December 1999

R v Marshall

[1999] NSWSC 1267

Homicide
SENTENCING SEVEN STAB WOUNDS TO BODY OF DECEASED APPLICATION GRANTED SENTENCING ACT, S 13A.

Citation: R v Marshall [1999] NSWSC 1267
Court: Supreme Court of New South Wales
Date: 20 December 1999
Judge(s): Studdert J

Background

In July 1989, the applicant was convicted of the murder of a 38-year-old man following an incident on 13 May 1988. The applicant forced his way into a Petersham unit and inflicted at least seven stab wounds on the deceased during a confrontation. Medical evidence confirmed the cause of death as multiple stab wounds, one of which had penetrated a major vein and caused extensive internal bleeding.

At the time of sentencing in 1989, Studdert J was required by s 19 of the Crimes Act to impose a life sentence unless mitigating circumstances significantly diminished the applicant's culpability. No such circumstances were established, and a life sentence was accordingly imposed. The applicant's subsequent appeal against conviction was dismissed by the Court of Criminal Appeal.

More than ten years after sentencing, the applicant brought this application under s 13A of the Sentencing Act, seeking the court's determination of a minimum term and an additional term to replace the existing life sentence.

  • Whether the threshold requirements under s 13A of the Sentencing Act were met so as to permit the granting of the application
  • What minimum term and additional term were appropriate, having regard to all circumstances of the offence, the applicant's criminal history, and all other relevant factors under s 13A
  • What weight should be given to mitigating factors, including the applicant's age at the time of the offence, his rehabilitation progress, and his alcohol problems, as against the objective seriousness of the crime

Decision

Studdert J granted the application, noting that the Director of Public Prosecutions did not oppose it. The court was required under s 13A(4A) to have regard to all circumstances surrounding the original offence and to any other offences of which the applicant had been convicted at any time.

The court treated the objective features of the crime as very serious. Seven stab wounds were inflicted, and the jury's verdict established that the applicant had acted at least with an intention to cause serious bodily harm. Studdert J referred to the Court of Criminal Appeal's repeated emphasis on the seriousness with which knife violence is regarded, citing R v Rothapfel.

Despite acknowledging some progress in rehabilitation, the court noted two significant concerns: the applicant had not freely acknowledged his alcohol problem or engaged adequately with counselling, and his acceptance of guilt remained incomplete. The court indicated that further counselling for alcohol abuse and genuine engagement with the question of guilt were matters the applicant should address during the balance of the minimum term, and that progress in these areas would be relevant when parole was considered.

Having regard to comparable sentences for murder and the particular facts of this case, the court determined that a total sentence of 19 years penal servitude was appropriate, with a minimum term of 13 years and 6 months and an additional term of 5 years and 6 months.

Orders Made

  • Application under s 13A of the Sentencing Act granted
  • Total sentence fixed at 19 years penal servitude
  • Minimum term of 13 years and 6 months, backdated to 14 May 1988 (the date continuous custody commenced), expiring 13 November 2001
  • Additional term of 5 years and 6 months, commencing 14 November 2001 and expiring 13 May 2007
  • First eligible date for release on parole: 14 November 2001

Key Takeaways

  • Under s 13A of the Sentencing Act, a prisoner serving a life sentence may apply for the determination of a minimum and additional term once ten years have elapsed since sentencing, and the court must have regard to all circumstances of the original offence and any other convictions.
  • The Supreme Court confirmed that the objective gravity of a murder involving multiple knife wounds is very serious, consistent with the Court of Criminal Appeal's established view of the particular abhorrence attached to the use of knives as weapons.
  • A sentence of 19 years penal servitude with a minimum term of 13 years and 6 months was determined to be appropriate in circumstances where the crime was serious, but some rehabilitative progress had been made.
  • Incomplete acknowledgment of guilt and inadequate engagement with alcohol counselling were identified as factors weighing against the applicant, and the court noted these would remain relevant to any future parole assessment.
  • Where the prosecution does not oppose a s 13A application, that non-opposition is a relevant consideration, though the court retains the obligation to assess all statutory factors independently before granting the application.

Legislation and Cases Referenced

Legislation
- Sentencing Act (NSW), s 13A (application for minimum and additional term determination)
- Crimes Act (NSW), s 19 (mandatory life sentence for murder, as it stood at the time of the original sentence)

Cases
- R v White (unreported, NSWCCA, 23 June 1998)
- R v Stephens [1999] NSWCCA 80
- R v Rothapfel (unreported, NSWCCA, 4 August 1992)