R v Marshall [2001] NSWCCA 283

New South Wales Court of Criminal Appeal

CITATION : R v Marshall [2001] NSWCCA 283 FILE NUMBER(S) : CCA 60131/00 HEARING DATE(S) : 12 June 2001 JUDGMENT DATE : 24 July 2001

PARTIES : Regina v David Gregory Marshall JUDGMENT OF : Smart AJ at 1; Newman AJ at 60; Badgery-Parker AJ at 61

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/71/0106; 99/71/0099 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : (A) S J Odgers SC (R) P G Berman SC SOLICITORS : (A) D J Humphreys (R) S E O'Connor CATCHWORDS : Omission from Summing-Up of element of offence but complete as to lesser offence - substituted verdict - Sentencing - slight reduction because of substituted verdict and principle of totality - parity challenge rejected CASES CITED: Osland v The Queen (1998-1999) 197 CLR R v Tangye (1997) 92 A Crim R DECISION : (1) Appeal against conviction on Count 1 of the first indictment allowed; conviction for aggravated break enter and steal from Ms Gower quashed and in lieu thereof substitute conviction for break enter and steal (2) Quash sentence on Count 1 - in lieu thereof appellant sentenced to a fixed term of 2 years imprisonment to commence on 6 August 1999 and to expire on 5 August 2001 (3) Leave to appeal against sentence on Count 2 of first indictment - aggravated break enter and steal from Ms Duffy refused (4) Leave to appeal against sentence on Count 1 of second indictment - armed robbery of the Woods - vary date of commencement of that sentence - in lieu of the commencing date of 6 August 2002 for the sentence of 7 years for armed robbery that sentence is to commence on 6 August 2001 and expire on 6 August 2008 with a non-parole period of 4 years starting on 6 August 2001 and ending on 5 August 2005.