Citation: Marlin v R [2007] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 20 March 2007
Judge(s): McClellan CJ at CL, Barr J, Hoeben J
Background
The applicant pleaded guilty to one count of aggravated sexual intercourse without consent under s 61J(1) of the Crimes Act 1900, an offence carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The sentencing judge in the District Court imposed a total sentence of 5 years, with a non-parole period of 3 years commencing 30 September 2005. A 20% discount was applied for the utilitarian value of the guilty plea, and a finding of special circumstances was made based on factors including the applicant's age, his first time in custody, physical and psychological problems, and his need for supervision.
The applicant appeared before the Court of Criminal Appeal without legal representation. He relied on written submissions and oral argument presented on the day of the hearing.
Legal Issues
- Whether the applicant's apparent inability to access the CUBIT Sex Offenders Program in custody provided a basis to review his sentence
- Whether the applicant's deteriorating health while in custody warranted intervention by the Court of Criminal Appeal to reduce or vary the sentence
Decision
On the CUBIT Program issue, the Court accepted that the applicant's concern about accessing the program was genuine, but held that it provided no basis to review the sentence. The Court noted that the applicant's eligibility for the program, his admission to it, and his completion of it are matters for the Department of Corrective Services, not the Court of Criminal Appeal. The Court also observed that, with the application resolved, the applicant may in fact become able to access the program.
On the health issue, the Court acknowledged that the applicant had experienced cardiovascular problems and possible minor coronary events while in custody. It found that these had been appropriately managed through the prison medical system and that further intervention would be available if required.
The Court confirmed the legal principle from R v Burrell (2000) that an offender's health may be relevant when a sentence is first imposed. It also confirmed, by reference to Iglesias v R [2006] NSWCCA 261, that where a latent condition not detected at sentencing later materialises, a court may in appropriate circumstances review the sentence. However, the Court found that the applicant's health issues did not reach the threshold required to justify the Court's intervention in this case.
Leave to appeal was granted, but the appeal was dismissed.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Access issues relating to rehabilitation programs in custody, such as the CUBIT Sex Offenders Program, are matters for the Department of Corrective Services and do not provide a basis for the Court of Criminal Appeal to review a sentence.
- Under the principle confirmed in R v Burrell (2000) 114 A Crim R 207, an offender's health may be relevant to the length and type of sentence at the time of sentencing.
- Where a latent health condition not detected at sentencing later materialises, the Court of Criminal Appeal may review the sentence depending on all the circumstances, as confirmed in Iglesias v R [2006] NSWCCA 261.
- In dismissing this appeal, the Court held that health problems experienced in custody do not automatically justify appellate intervention; the condition must be of a character that warrants it.
- A sentencing court's finding of special circumstances can reflect multiple intersecting factors, including a first period of custody, age, and physical and psychological difficulties, even where the total sentence is well below the statutory maximum.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61J(1)
Cases
- R v Burrell (2000) 114 A Crim R 207
- Iglesias v R [2006] NSWCCA 261