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Court of Criminal Appeal 29 April 2002

R v Marsh

[2002] NSWCCA 151

Assault & violenceHomicideTheft & property
APPEAL DISMISSED.

Citation: R v Marsh [2002] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 29 April 2002
Judges: Meagher JA, Hidden J, Bell J

Background

The respondent, Stuart Cecil Marsh, pleaded guilty in the Supreme Court to three charges arising from events on 3 August 2000 at Lidcombe: manslaughter, robbery in company, and taking and driving a conveyance. The charges related to a planned handbag snatch in which Marsh drove a stolen vehicle while his co-offender grabbed the victim's bag. When the victim ran alongside the vehicle and partially entered it, Marsh accelerated, swerved, and repeatedly punched her in the head. She fell from the vehicle and the rear tyre struck her head. She died shortly afterwards at Westmead Hospital.

McClellan J sentenced Marsh in the Supreme Court to 10 years and 4 months for manslaughter, 6 years for robbery in company, and a fixed term of 14 months for the driving offence, all to run concurrently. The starting point for the manslaughter sentence was 13 years, reduced by 20 percent to reflect the guilty plea.

Two separate appeals came before the Court of Criminal Appeal. The Crown appealed on the ground that the overall sentence was inadequate. Marsh separately sought leave to appeal on the ground that his sentence was manifestly excessive.

  • Whether the sentencing judge failed to reflect the total criminality of the offender, including by ordering the sentences to run concurrently rather than consecutively
  • Whether the sentencing judge failed to apply the principles in Pearce v The Queen (1994) 144 CLR 610 when structuring the multiple sentences
  • Whether the 13-year starting point for manslaughter was within the appropriate range for an offence of this character
  • Whether a 20 percent discount for the guilty plea was appropriate given the co-offender had already informed police
  • Whether the sentencing judge erred in declining to find special circumstances affecting the non-parole period
  • Whether the effective sentence of 10 years and 4 months (after the guilty plea discount) was manifestly excessive

Decision

The Court was divided on the Crown appeal, with Hidden J and Bell J forming the majority to dismiss it. Hidden J held that the sentencing judge was correct to treat 13 years as the appropriate starting point for this particular manslaughter. His Honour drew on Judicial Commission statistics and his own experience of sentencing patterns for manslaughter, concluding that 13 years was at the high end of the realistic range for an offence of this type. No error was established in the weight given to the offender's criminal record or in the concurrent structure of the sentences.

On the Pearce argument, Hidden J was not persuaded that the sentencing judge had fallen into error in directing concurrent sentences. His Honour acknowledged the seriousness of the offending but found the overall effective sentence adequately reflected the total criminality.

Meagher JA dissented on the Crown appeal. His Honour considered the sentencing judge had correctly identified that a sentence at the high end of the available range was warranted but then failed to act on that conclusion. Meagher JA would have imposed 15 years for manslaughter and made the 6-year robbery sentence consecutive, producing a total of 21 years. However, his Honour's view did not prevail.

On Marsh's application for leave to appeal against severity, all three judges agreed: leave was granted but the appeal was dismissed. Hidden J found no error in the guilty plea discount, no error in declining to find special circumstances, and no basis to interfere with the overall sentence. The Court noted that the plea was made in circumstances where the co-offender had already disclosed the offence to police, leaving Marsh with little practical alternative, and genuine remorse had not been clearly established.

Orders Made

  • Crown appeal against inadequacy of sentence: dismissed
  • Marsh's application for leave to appeal against severity of sentence: leave granted, appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a 13-year starting point for manslaughter arising from a fatal opportunistic robbery was within the appropriate sentencing range, consistent with Judicial Commission statistics and established sentencing patterns.
  • A guilty plea discount of 20 percent was upheld even where the plea was made in circumstances where the co-offender had already informed police, provided the utilitarian value of the plea was still present; however, the absence of demonstrated remorse was a relevant factor in the overall assessment.
  • No error was established in the sentencing judge's decision to impose concurrent rather than consecutive sentences across the three charges, notwithstanding the Crown's Pearce argument.
  • Declining to find special circumstances affecting the non-parole period was held not to be an error on the facts, particularly where the parole period remaining after the non-parole period still allowed for supervisory oversight of rehabilitation.
  • A strong dissent from Meagher JA illustrates that the concurrent structure of sentences for multiple serious offences arising from the same criminal episode can be a live issue on Crown appeals, even where the majority find no appellable error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 19 (manslaughter, maximum penalty 25 years)

Cases
- Pearce v The Queen (1994) 144 CLR 610 (principles governing sentencing for multiple offences)
- R v Simpson (2001) NSWCCA 534 (principles governing the specification of a non-parole period and special circumstances)