MARLIN v R [2007] NSWCCA 222

New South Wales Court of Criminal Appeal

CITATION: MARLIN v R [2007] NSWCCA 222

HEARING DATE(S): 20 March 2007 JUDGMENT OF: McClellan CJ at CL at 1; Barr J at 11; Hoeben J at 12

EX TEMPORE JUDGMENT DATE: 20 March 2007

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against sentence – self-represented applicant – aggravated sexual intercourse – apparent inability of applicant to complete the CUPIT Sex Offenders Program was not a basis to review sentence – health of offender and sentencing – whether the applicant's health problems warranted intervention

LEGISLATION CITED: Crimes Act 1900

CASES CITED: Iglesias v R [2006] NSWCCA 261 R v Burrell (2000) 114 A Crim R 207

PARTIES: David John Marlin (Appl) The Crown

FILE NUMBER(S): CCA 2006/2909

COUNSEL: Applicant in person V Lydiard (Crown)

SOLICITORS: Applicant in person Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3176

LOWER COURT JUDICIAL OFFICER: Quirk DCJ

LOWER COURT DATE OF DECISION: 14 March 2006

IN THE COURT OF CRIMINAL APPEAL 2006/2909

McCLELLAN CJ at CL BARR J HOEBEN J

TUESDAY 20 MARCH 2007 MARLIN, David John v R Judgment 1 McCLELLAN CJ at CL: The applicant, David John Marlin, pleaded guilty to one count of aggravated sexual intercourse without consent contrary to s 61J(1) Crimes Act 1900. The maximum penalty for this offence is 20 years imprisonment and the standard non-parole period which applies is 10 years imprisonment. 2 The applicant was sentenced to imprisonment for a non-parole period of 3 years commencing on 30 September 2005 and expiring on 29 September 2008 with a balance of term of 2 years expiring on 29 September 2010. Accordingly, his total sentence is a term of 5 years commencing on 3 September 2005 and expiring on 29 September 2010. 3 The sentencing judge provided a 20% discount for the utilitarian value of the applicant's plea. Her Honour was also satisfied that the applicant was contrite. The sentencing judge also made a finding of special circumstances having regard to the fact that it would be the applicant's first time in custody, his age and his numerous physical and psychological problems and depression making his time in custody more onerous; his positive response to supervision in the past; and his need for supervision and psychological intervention. 4 The applicant seeks leave to appeal against his sentence. He is not represented but has provided written submissions and has this morning addressed the Court. 5 The grounds which the applicant seeks to press in the appeal are twofold. They relate to his apparent inability to attend the CUBIT Sex Offender's Program in prison and his deteriorating health whilst in custody. 6 In his letter dated 15 December 2006 the applicant states that he has been informed by a female psychologist that he might not have access to the CUBIT Program due to lengthy waiting lists. Because the applicant has been convicted of a sexual offence, it is possible that unless he can satisfactorily complete the CUBIT Program he may not be able to obtain release on parole at the earliest possible date. I understand that he is eligible for the Program and will be able to apply for admission to it once this application has been determined. His admission to the program and his ultimate completion of it are, of course, matters for the Department of Corrective Services and are not matters for this Court. 7 I am satisfied that the applicant's concerns about his capacity to enter the CUBIT Program is genuine. Whether they are justified is another matter. There is evidence before this Court which suggests that upon determination of this application the applicant may be able to enter the CUBIT Program thereby relieving his present concerns. In any event, as I have indicated, these concerns cannot provide a basis for this Court to review the sentence imposed on him. 8 The second matter is an apparent deterioration in the applicant's medical condition. Evidence has been provided to this Court which suggests that he has cardio vascular problems and may have had minor coronary events. It would appear that each of these events have been appropriately dealt with through the medical facilities available to prisoners and if further medical intervention is required it will also be provided. 9 This Court said in R v Burrell (2000) 114 A Crim R 207 that the health of an offender may be a factor which bears upon the length and type of sentence when that sentence is being imposed. If a latent condition not detected at the time of sentence ultimately materialises this Court may, depending on all the circumstances, review the offender's sentence: Iglesias v R [2006] NSWCCA 261. However, there is nothing in the present case to suggest that the health problems which the applicant has recently experienced are of a kind which would justify the intervention of this Court. 10 Although in my opinion leave to appeal should be granted, the appeal should be dismissed. 11 BARR J: I agree. 12 HOEBEN J: I agree. 13 McCLELLAN CJ at CL: The orders of the court are as I have indicated. **********