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Court of Criminal Appeal 28 October 2024

Marshall v R

[2024] NSWCCA 194

Theft & property
CRIME APPEALS APPEAL AGAINST SENTENCE PRINCIPLE OF TOTALITY MANIFEST EXCESS PAROLE REVOKED

Citation: Marshall v R [2024] NSWCCA 194
Court: Court of Criminal Appeal, NSW
Date: 28 October 2024
Judges: Basten AJA, Dhanji J (primary), Faulkner J

Background

The appellant pleaded guilty in the Local Court to break and enter and commit a serious indictable offence under s 112(1)(a) of the Crimes Act 1900 (NSW). The offence occurred on 5 July 2023 at Cooma, just nine days after the appellant had been released to parole on an earlier sentence. He was arrested the same day and remained in custody continuously from that point.

The sentencing judge in the District Court at Queanbeyan imposed a total term of 2 years and 3 months with a non-parole period of 1 year and 5 months. The sentence was backdated not to the date of arrest but to 1 January 2024, providing only partial concurrency with the balance of the earlier parole period the appellant was by then serving in custody following revocation.

The appellant sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge failed to properly apply totality principles, including in the choice of commencement date.

  • Whether the sentencing judge failed to apply totality principles in the length, structure, and backdating of the new sentence
  • Whether the notional starting point of three years' imprisonment was manifestly excessive given the objective seriousness of the offending
  • On resentence, what the appropriate sentence should be, including the correct commencement date and its relationship to the earlier sentence and parole revocation

Decision

Totality: The Court found no error in the sentencing judge's approach to totality. The earlier sentence had been a significant focus at the sentencing proceedings, and the judge appreciated the impact of the new sentence on the appellant's overall custodial position. The specific error the appellant alleged under this ground was not established.

Manifest excess: The Court upheld the manifest excess ground. The offence was described by the sentencing judge as "entirely spontaneous and unplanned." Crucially, the prosecution did not allege that the appellant intended to commit an indictable offence when he broke and entered. The indictable offence actually committed inside the premises, damage to a laundry door, was minor and added little to the overall criminality. The Court held that the principle of proportionality required the sentence to reflect the true objective gravity of what occurred. Without a prior criminal record for similar offending, a custodial sentence would likely not have been imposed at all. A starting point of three years was therefore manifestly excessive.

Commencement date on resentence: The Court held that the new sentence should be backdated to the date of arrest, 5 July 2023. Because the parole period of the earlier sentence was lengthy and the legislative framework required the new sentence to commence no later than the date of sentencing, the new sentence was subsumed within that parole period and operated entirely concurrently. Dhanji J and Basten AJA each reasoned that dating the sentence from a later point would artificially curtail the State Parole Authority's power to consider re-release on the earlier sentence. The question of when the appellant might be re-paroled on the earlier sentence was properly a matter for the Parole Authority, which is concerned with community safety rather than punishment.

Basten AJA observed that backdating the sentence to a later date would not increase time served on the new offence as such, but would reduce the period available to the Parole Authority to consider release on the earlier sentence. That outcome was not an appropriate function of the sentencing court. Accordingly, the sentence was backdated to 5 July 2023 and structured as a fixed term of 15 months, expiring on 4 October 2024.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Fitzsimmons SC DCJ on 9 May 2024 quashed
  • In lieu thereof, the appellant sentenced to imprisonment for a fixed term of 15 months, commencing 5 July 2023 and expiring 4 October 2024
  • The Court noted the appellant remained in custody under the earlier sentence and that any re-release to parole on that sentence was a matter for the State Parole Authority

Key Takeaways

  • A notional starting point for sentencing must be commensurate with the objective gravity of the offence itself; where an offender's criminal history elevates a sentence beyond what the objective facts warrant, that elevation may render the sentence manifestly excessive in breach of proportionality principles.
  • Where a new offence is committed while on parole and the new sentence is, by operation of statute, subsumed within the balance of the revoked parole period, it should be served entirely concurrently with that period rather than structured so as to displace the Parole Authority's role.
  • The State Parole Authority's function in determining re-release to parole is concerned with community safety, not punishment; sentencing courts should not structure commencement dates in ways that effectively pre-empt or curtail that function.
  • Backdating a sentence to the date of arrest, rather than a later date, can be the appropriate course where the alternative would artificially remove from the Parole Authority its power to assess the offender's suitability for re-release during the intervening period.
  • The R v Todd (1982) and Cahyadi v R (2007) principles on totality were affirmed as applicable in this sentencing context, though on the facts they did not assist the appellant on the totality ground specifically.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(1), 112(1)(a), 112(2), 196
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 135, 170A, 171
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 47
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Inclosed Lands Protection Act 1901 (NSW), s 4
- Parole Legislation Amendment Act 2017 (NSW)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465 (proportionality)
- R v Todd (1982) 2 NSWLR 517 (totality)
- Cahyadi v R (2007) 168 A Crim R 41 (totality)
- Callaghan v R (2006) 160 A Crim R 145 (concurrency and commencement date)
- The Queen v Kilic (2016) 259 CLR 256
- Markarian v The Queen (2005) 228 CLR 357
- Bugmy v The Queen (2013) 249 CLR 571 (personal history of deprivation)
- Kentwell v The Queen (2014) 252 CLR 601
- Hoare v The Queen (1989) 167 CLR 348
- Elias v The Queen; Issa v The Queen (2013) 248 CLR 483
- The Queen v De Simoni (1981) 147 CLR 383
- R v Gray [2018] NSWCCA 241
- DS v R; DM v R (2022) NSWLR 82; [2022] NSWCCA 156