Marshall v R [2007] NSWCCA 24

New South Wales Court of Criminal Appeal

CITATION: Marshall v R [2007] NSWCCA 24 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29/01/2007

JUDGMENT DATE: 14 February 2007

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; Howie J at 4

DECISION: 1. Leave to appeal is granted and the appeal is allowed in respect of the sentences imposed for Counts 3, 4 and 5. 2. The sentences for Counts 3, 4 and 5 are quashed and on those Counts the applicant is sentenced as follows: (a) On Counts 3 and 4 the applicant is sentenced to a fixed term of two years to commence on 15 December 2005 and expire on 14 December 2007. (b) On Count 5 the applicant is sentenced to a non-parole period of 4 years and 6 months to date from 15 December 2005 and to expire on 14 June 2010, the date upon which the applicant is eligible to be released to parole. There is a balance of term of 14 months to commence on 15 June 2010.

CATCHWORDS: Criminal Law - Sentence - Effect of sentences exceeding the maximum penalty for the offence - Assessment of seriousness of offence of aggravated break enter and steal - whether offence above mid-range of seriousness - Totality - whether sentences ought to have been concurrent - whether any lesser overall sentence was warranted.

LEGISLATION CITED: Crimes Act 1900 - ss 4, 105A(e), 105A(1)(f), 112(2), 112(3), 117 Crimes (Sentencing Procedure) Act 1999 - ss 21A, 44, 54B(3)

R v Tadrosse [2005] NSWCCA 145 R v Li (NSWCCA, unreported, 9 July 1997) R v Zegura [2006] NSWCCA 230 R v Way (2004) NSWLR 168 R v AJP (2004) 150 A Crim R 575 CASES CITED: R v Hammoud (2000) 118 A Crim R 66 R v MMK [2006] NSWCCA 272 Cahyadi v R [2007] NSWCCA 1 R v Huynh [2005] NSWCCA 220 R v Ponfield (1999) 48 NSWLR 327 Mulato v R [2006] NSWCCA 282 Dang v R [2005] NSWCCA 430