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28
Court of Criminal Appeal 14 February 2007

Marshall v R

[2007] NSWCCA 24

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE WHETHER OFFENCE ABOVE MID RANGE OF SERIOUSNESS TOTALITY

Citation: Marshall v R [2007] NSWCCA 24
Court: NSW Court of Criminal Appeal
Date: 14 February 2007
Judge(s): McClellan CJ at CL, Simpson J, Howie J

Background

The appellant pleaded guilty in the District Court to three counts of aggravated break, enter and commit a serious indictable offence (under s 112(2) of the Crimes Act 1900) and two counts of larceny. The offences, committed between December 2004 and February 2005, involved breaking into occupied homes, stealing from retail premises, and, in the most serious count, confronting a 56-year-old woman at knifepoint inside her home, demanding money, restraining her, and ultimately forcing her out of her own house at knifepoint before fleeing in her car.

In the District Court, Maguire DCJ sentenced the appellant to concurrent terms totalling an overall non-parole period of five years. The sentences for the two larceny counts were each set at a minimum term of four years plus a balance of 16 months. The maximum penalty for larceny is five years, but these sentences were structured in a way that the total term for each larceny count (four years minimum plus 16 months balance) exceeded that maximum.

The appellant sought leave to appeal, arguing that the sentences for the larceny counts unlawfully exceeded the statutory maximum, that the most serious offence was assessed at too high a level of seriousness, and that the overall sentence was excessive having regard to the principle of totality.

  • Whether the sentences imposed for the two larceny counts were invalid because they exceeded the five-year statutory maximum for that offence.
  • Whether, when one or more sentences in a multi-offence proceeding exceed the applicable maximum, the entire sentencing exercise is necessarily infected and must be re-done from scratch.
  • Whether the sentencing judge correctly assessed the seriousness of the most serious count (Count 5, the home invasion) as above the mid-range.
  • Whether the principle of totality required some or all sentences to be served concurrently, or whether any lesser overall sentence was warranted.

Decision

The Court accepted without contest that the sentences for Counts 3 and 4 (larceny) were unlawful: each exceeded the five-year statutory maximum for that offence. The appeal on those counts was allowed as of right. Simpson J emphasised that such an error is not merely "technical" but fundamental, while Howie J acknowledged the label in a narrower sense, drawing on R v Tadrosse, to describe cases where the error does not necessarily contaminate the balance of the sentencing exercise.

On the question of whether the error infected the overall sentencing discretion, the Court found that it did not in this case. The unlawful larceny sentences were running concurrently with the sentences for the more serious break, enter and steal offences, and the overall non-parole period of five years was driven by those more serious matters. The error in the larceny sentences had not distorted the broader exercise.

Turning to Count 5, the Court upheld the sentencing judge's assessment that the offence fell above the mid-range of seriousness. The multiple aggravating features, including the appellant's knowledge that a person was present, the use of a knife as an offensive weapon, and the deprivation of the victim's liberty, supported that conclusion. The Court rejected the submission that the standard non-parole period of five years had improperly anchored the judge's assessment.

On totality, the Court found that the overall non-parole period of five years was appropriate given the cumulative criminality across five offences. The larceny sentences were re-imposed as fixed terms of two years each (within the statutory maximum), to run concurrently with the Count 5 sentence. The sentence for Count 5 was restructured to a non-parole period of four years and six months with a balance of 14 months, preserving the same overall period of custody.

Orders Made

  • Leave to appeal granted; appeal allowed in respect of sentences for Counts 3, 4 and 5.
  • Sentences for Counts 3, 4 and 5 quashed.
  • On Counts 3 and 4: fixed term of two years, commencing 15 December 2005 and expiring 14 December 2007.
  • On Count 5: non-parole period of four years and six months, commencing 15 December 2005 and expiring 14 June 2010, with a balance of term of 14 months commencing 15 June 2010.
  • (A subsequent amendment on 15 March 2007 corrected a date error in the original judgment to ensure the Count 5 sentence dates were internally consistent.)

Key Takeaways

  • Where one or more sentences in a multi-offence proceeding exceed the statutory maximum, the Court of Criminal Appeal confirmed that this does not automatically require the entire sentencing exercise to be re-conducted: the critical question is whether the error infected the other sentences or the overall result.
  • Simpson J drew a clear distinction from the characterisation in R v Tadrosse: imposing a sentence beyond the statutory maximum is a fundamental error, not merely a technical one, even if its practical effect on the overall sentence is limited.
  • Multiple aggravating features under s 105A of the Crimes Act 1900, including presence of a person on the premises, use of an offensive weapon, and deprivation of liberty, can be relied upon by the Crown in sentencing even if only one was formally charged, provided the others are established on the evidence.
  • The totality principle does not automatically require all sentences in a multi-offence matter to run concurrently: the comparative seriousness of individual offences is a relevant consideration in determining whether cumulative or concurrent service is appropriate.
  • Larceny under s 117 of the Crimes Act 1900 carries a maximum of five years imprisonment; any sentence structure that produces a total term beyond that ceiling is unlawful regardless of how concurrent sentences may operate overall.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 105A(a), 105A(e), 105A(1)(f), 112(2), 112(3), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54B(3)

Cases
- R v Tadrosse [2005] NSWCCA 145
- R v Li (NSWCCA, unreported, 9 July 1997)
- R v Zegura [2006] NSWCCA 230
- R v Way (2004) NSWLR 168
- R v AJP (2004) 150 A Crim R 575
- R v Hammoud (2000) 118 A Crim R 66
- R v MMK [2006] NSWCCA 272
- Cahyadi v R [2007] NSWCCA 1
- R v Huynh [2005] NSWCCA 220
- R v Ponfield (1999) 48 NSWLR 327
- Mulato v R [2006] NSWCCA 282
- Dang v R [2005] NSWCCA 430