R v Marshall [1999] NSWSC 1267

New South Wales Supreme Court CITATION : R v Marshall [1999] NSWSC 1267 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : L4/98 HEARING DATE(S) : 17 December 1999 JUDGMENT DATE : 20 December 1999

PARTIES : Regina v Keith Reginald MARSHALL JUDGMENT OF : Studdert J

COUNSEL : P. Thompson (Crown) A. Webb (Applicant) SOLICITORS : Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Applicant) CATCHWORDS : Sentencing; application for determination concerning life sentence for murder; seven stab wounds to body of deceased; application granted; sentence of nineteen years penal servitude with minimum term of thirteen years six months; Sentencing Act, s 13A. ACTS CITED : Sentencing Act R v White (unreported, NSWCCA, 23 June 1998) CASES CITED : R v Stephens [1999] NSWCCA 80 R v Rothapfel (unreported, NSWCCA, 4 August 1992) DECISION : See para 27

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

STUDDERT J

Monday 20 December 1999 98/004 REGINA v KEITH REGINALD MARSHALL

JUDGMENT

1 HIS HONOUR: This is an application pursuant to s 13A of the Sentencing Act for the determination of a minimum term and an additional term. 2 In June 1989 the applicant, Keith Reginald Marshall, stood trial charged with the murder of a thirty-eight year old man, Richard Stanley Burridge. The jury found him guilty of that offence and on 14 July 1989 I sentenced the applicant to penal servitude for life. It was necessary, of course, as s 19 of the Crimes Act then provided, that such sentence be imposed unless it appeared that the applicant's culpability for the crime was significantly diminished by mitigating circumstances. I did not find the applicant's culpability to be significantly diminished. Before sentencing the applicant I had regard to evidence that the prisoner had been drinking intoxicating liquor prior to the commission of the offence but in my remarks on sentence I stated: "The evidence does not establish on the probabilities therefore that the prisoner was affected by intoxicating liquor at the time that this murder was committed. The evidence does not establish on the probabilities any circumstance whereby the prisoner's culpability for the crime of which the jury has found him guilty was significantly diminished. No mitigating circumstances having been established, I have no alternative but to sentence the prisoner to penal servitude for life." 3 The applicant appealed to the Court of Criminal Appeal against his conviction but that appeal was dismissed. 4 It is now over ten years since the applicant was sentenced, so there is no barrier to this application by reason of s 13A(3) of the Sentencing Act. 5 Under s 13A(4A) I am required, in considering the application: "to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences wherever committed, of which [the applicant] has been convicted at any time…"