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Court of Criminal Appeal 13 February 2013

Marshall v R

[2013] NSWCCA 16

Assault & violenceTheft & property
APPEAL APPEAL AGAINST SENTENCE PLEAS OF GUILTY BREAK AND ENTER COMMIT SERIOUS INDICTABLE OFFENCE OFFENCE PUNISHABLE BY FINE.

Citation: Marshall v R [2013] NSWCCA 16
Court: Court of Criminal Appeal, New South Wales
Date: 13 February 2013
Judge(s): Latham J, Button J, Grove AJ (judgment delivered by Grove AJ)

Background

The appellant pleaded guilty in the District Court at Parramatta to two offences arising from a home invasion in April 2011: breaking and entering a dwelling house and committing a serious indictable offence (intimidation), and assault occasioning actual bodily harm. The facts involved a disturbing sequence of events in which the appellant entered a suburban home, struck a male resident, threatened him with a syringe claimed to be filled with HIV-infected blood, and attempted to strike him with a spray can before fleeing.

At sentencing, the court was also asked to take into account, via the Form 1 procedure under the Crimes (Sentencing Procedure) Act 1999 (NSW), a separate offence of entering a vehicle without consent committed one week earlier. That offence carried a maximum penalty of only four penalty units, equivalent to a fine of up to $440. It was not punishable by imprisonment.

Before formally pronouncing sentence, the sentencing judge noted that he had taken the Form 1 vehicle offence into account when considering personal deterrence and retribution in connection with the primary count. The appellant was sentenced on count 1 to a non-parole period of 18 months and total term of 3 years. He appealed, arguing the judge had erred in allowing a fine-only offence to increase the custodial component.

  • Whether a sentencing court errs by taking into account a Form 1 offence that carries only a fine (not imprisonment) when imposing a custodial sentence for the primary offence.
  • Whether the sentencing judge's remarks disclosed that he had actually extended the custodial term on count 1 by reason of the fine-only Form 1 offence.

Decision

The Court of Criminal Appeal rejected both limbs of the appellant's argument. On the first question, Grove AJ confirmed there is no statutory prohibition on a court taking into account a fine-only offence through the Form 1 procedure when imposing a sentence of imprisonment. The Crimes (Sentencing Procedure) Act defines "imposing a penalty" to include both imprisonment and fines, and the operative provision uses the permissive word "may", meaning a court has discretion to accept or decline the request regardless of the nature of the Form 1 offence.

On the second question, the Court examined the sentencing judge's ex tempore remarks and found they demonstrated an awareness of the established approach set out in Attorney General's Application No 1 of 2002. That authority, decided by Spigelman CJ with four concurring judges, established that Form 1 offences are taken into account by giving greater weight to personal deterrence and community retribution, without attempting to quantify any specific addition to the sentence. The judge's reference to those two concepts did not demonstrate that he had impermissibly extended the custodial term; rather, it showed he was applying the correct framework.

The Court found the single ground of appeal was not made out. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No statutory barrier exists under the Crimes (Sentencing Procedure) Act 1999 (NSW) to taking a fine-only offence into account via the Form 1 procedure when imposing a custodial sentence for the primary offence.
  • Under the Attorney General's Application No 1 of 2002 framework, a Form 1 offence is taken into account by giving greater weight to personal deterrence and retribution, not by adding a discrete quantum to the sentence; it will rarely be appropriate to attempt to quantify its effect.
  • A sentencing judge's express reference to deterrence and retribution in connection with a Form 1 offence does not, without more, establish that the custodial term was impermissibly extended by that offence.
  • The Court of Criminal Appeal confirmed that the focus throughout the Form 1 exercise must remain on sentencing for the primary offence, with the maximum penalty for that offence and the totality principle both operating as constraints.
  • In dismissing the appeal, the Court reinforced that the permissive language in s 33(2) leaves courts with genuine discretion to accept or decline requests to take further offences into account, regardless of whether those offences carry custodial penalties.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 3, Part 3 (ss 31, 33)
- Summary Offences Act 1988 (NSW), s 6A

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Kay [2002] NSWCCA 286