R v Marsh [2002] NSWCCA 151 | Case summary

1 MEAGHER JA: This matter was an application for leave to appeal by Mr Marsh against the severity of a sentence and an application by the Crown against the sentence on the ground of its leniency. 2 Mr Marsh pleaded guilty before McClellan J on 13 October 2001 in the Supreme Court to three counts on indictment. One was a count of manslaughter of Ms Lanh Ngoc Bui on that 3 August 2000 at Lidcombe, one was a count of robbery in company, of the same lady on the same date, and one was a count of taking and driving a conveyance on the same date. His Honour, on the first count, sentenced Mr Marsh to 10 years and four months to commence on 17 November 2000; in the case of robbery in company on the second count, to full-time imprisonment of six years to commence on 17 November; and on the count of taking and driving a conveyance, to a fixed term of full-time imprisonment of 14 months. All three sentences were to run concurrently. 3 In my view, his Honour was seriously in error in reaching the conclusion which he did. 4 It is worth reciting the facts of the manslaughter case. 5 On about 28 July 2000 a motor car was stolen from a street in Toongabbie and it is possible to infer that that was done by Mr Marsh. One does not know exactly whether he did or not, but we do know that on 3 August 2000 he was driving this vehicle. On that occasion he chose to pick up his co-offender, Mr Wayne Alan Clarke. Mr Marsh was the driver, Mr Clarke was a passenger. Mr Marsh suggested to Mr Clarke that they both conduct a handbag snatch and Mr Clarke agreed with that. They drove to a place called Lidcombe, which is near Strathfield, looking for a victim. 6 Mr Marsh drove his vehicle into a street called Swete Street, stopped about 50 m from Ms Bui, who was standing in a driveway on the footpath area. Mr Clarke alighted from the motor car, approached Ms Bui and grabbed her handbag. He then tried to get back into the vehicle. Mr Marsh drove the vehicle with Mr Clarke in the front passenger seat. Ms Bui pursued them, running alongside the vehicle. Mr Marsh stopped the vehicle for a short time and Ms Bui partially entered the vehicle. He then accelerated it and swerved the vehicle down the street in an attempt to get her out of the vehicle. He drove through a roundabout and turned left. Ms Bui then grabbed hold of Mr Clarke's head, apparently to prevent herself from falling from the vehicle. However, Mr Marsh, whilst continuing to drive the vehicle, punched her in the head a number of times. She fell from the vehicle about 40 m from the roundabout, rolled on to the roadway and the rear tyre of his vehicle struck her head. She was found unconscious and was transported to Westmead Hospital where she died shortly thereafter as a result of her head injuries. 7 I find it difficult to express my disgust at his behaviour in this regard. This is made more so if one considers that the lady whom he caused to be killed in no way provoked him, that he had no mental impairment which suggested he did not know what he was doing and -- although this has been argued -- he had no sense of contrition at any stage. 8 It is perfectly true that he pleaded guilty but in the circumstances of this case no inference of contrition, in my view, can be drawn from any plea of guilty. That is because Mr Clarke had rung up and informed the police of the relevant facts so that the police were in possession of the facts and Mr Marsh had no option but to plead guilty. 9 His Honour the learned sentencing judge said -- and I quite agree with him --, "Having regard to the circumstances of the offence and the degree of criminality involved a sentence at the high end of the available range is in my opinion appropriate". 10 I do not understand what the "high end of the available range" is, unless it is something approximating 25 years, which is the maximum penalty under section 19 of the Crimes Act 1900. In these circumstances, I am of the view that his Honour was perfectly correct in enunciating that principle. I do not understand why he departed from it. 11 In my view, the appeal should be allowed, the sentence set aside and in lieu thereof, to be substituted, a sentence of 15 years from 17 November 2000. But things do not stop there. 12 I do not see why the other offences should run concurrently with the offence of manslaughter. In my view, whilst I would not disturb the finding of six years for the offence of robbery, I should make it consecutive rather than concurrent, so Mr Marsh faces a term in gaol of 21 years. I would permit the offence of take and drive a conveyance to be served concurrently. 13 As far as subjective factors are concerned, I see no evidence of any subjective factors except that, like many people today, Mr Marsh had a tough childhood and was subject to some physical abuse but, in my view, too much cannot be made of that, particularly as his list of criminal offences is so horrendous that any question of subjective circumstances does not enter into the picture. 14 In the view I have taken of the Crown appeal it is not necessary for me to mention the appeal by Mr Marsh in which I would allow the application and dismiss the appeal. 15 HIDDEN J: I am unable to agree that the Crown appeal should be allowed. I do agree that, in respect of the application for leave to appeal against sentence, leave should be granted but that appeal should also be dismissed. I shall turn later, briefly, to my reasons for that decision. 16 Dealing, firstly, with the Crown appeal, his Honour, as has been pointed out by the learned presiding judge, determined that the offence of manslaughter called for a sentence at the high end of the available range and it was in the light of that that his Honour determined the starting point of 13 years' imprisonment. By the "available range" I do not take his Honour to have meant the whole gamut of dispositions available for the crime of manslaughter, ranging as it does from noncustodial dispositions to imprisonment for 25 years. What I take his Honour to have meant was the range of sentence one might expect for this particular offence of manslaughter. Viewed in that way, I think his Honour was entirely right to consider a sentence of 13 years at the high end of that range. That is consistent with Judicial Commission statistics with which we have been supplied by Senior Counsel for the respondent and, I might add, it is also consistent with my experience over the years of the pattern of sentence for manslaughter. 17 In my view, no error has been demonstrated by the Crown in his Honour's determination of 13 years as the appropriate starting point for the offence of manslaughter. 18 His Honour then reduced that by 20 percent in the light of the respondent's plea of guilty, a matter about which no complaint is made in the Crown appeal. 19 The respondent has an unfortunate criminal record, including some serious offences. The Crown complains that his Honour failed to give adequate weight to those antecedents in determining the appropriate overall sentence but, again, I am not persuaded that his Honour fell into error in that way. His Honour made express reference to the respondent's criminal record and gave it appropriate regard, including the light it might cast on the respondent's prospects of rehabilitation. 20 The Crown also argued that his Honour failed to observe the principles enunciated by the High Court in Pearce v The Queen (1994) 144 CLR 610 in the manner in which he determined the sentences for each of the three offences and in his direction that all of them be served concurrently. The sentence for manslaughter was 10 years and four months; for the charge of robbery in company, six years; and for the motor vehicle offence, 14 months. It is clear that in determining those sentences his Honour did give consideration to the criminality of each of them. 21 The Crown's real complaint is that in directing that the three sentences be served concurrently his Honour failed to reflect the total criminality of the respondent in the effective sentence which thereby resulted. 22 Again, I am not persuaded that his Honour fell into that error. It was open to his Honour, in the circumstances of this case, to direct that all three sentences be served concurrently and, in my view, the overall effective sentence is adequate to reflect the totality of the respondent's criminality. Certainly, I am far from persuaded that it is manifestly inadequate, so as to attract the intervention of this Court on a Crown appeal. 23 For those reasons, I am satisfied that the appeal against inadequacy of sentence must be dismissed. 24 Turning then to the offender's application for leave to appeal against sentence, a number of matters have been urged by Senior Counsel representing the applicant. Firstly, it is said that his Honour's starting point of 13 years for the manslaughter is manifestly excessive, particularly in the light of the pattern of sentence disclosed by the statistics. 25 It is high in the range, as his Honour expressly acknowledged but, in my view, it was rightly so, given the distressing facts of this offence. Similarly, in the circumstances, the sentence of six years for the robbery in company is high in the range, but I am not persuaded that it is outside it. 26 In dealing with the co-offender, Clarke, his Honour express the starting point for the sentence for manslaughter at 10 years, in recognition of what his Honour found to the Clarke's lesser involvement in that offence. Complaint is made about that characterisation of Clarke's involvement and about the significant difference in the starting point for the sentence for manslaughter of the two men. I say no more than that it was open to his Honour to find that distinction in their respective involvements and I am not persuaded that his Honour fell into error in arriving at those figures. 27 Generally, it appears to me that his Honour fell into no error in his assessment of the gravity of the applicant's conduct on this occasion, particularly in respect of the manslaughter. 28 Complaint is made of an observation in his Honour's remarks that the applicant's criminal record discloses his progressive engagement in more serious criminal activity. Looked at broadly, that is not an unfair observation about the record, as I read it, but even if it not be strictly accurate, it appears to me that nothing turns on it. As I have said in dealing with the Crown appeal, his Honour appears to have dealt with the applicant's criminal record appropriately and to have given it the weight it deserves in the assessment of sentence. 29 Complaint is also made that his Honour failed to have regard to some evidence that the applicant was in strict protection at the time he stood for sentence. That evidence emerges only from the report of a psychologist which was tendered in the applicant's case, and it should be noted that his Honour in his remarks on sentence quoted that passage of the psychologist's report, although he made no express reference to the fact of protection in his reasons for sentence. 30 On the other hand, the evidence about the applicant's being on protection was wholly inadequate to assess its significance. There was no material before his Honour about the circumstances of the applicant's being on protection or the length of time he was likely to remain so. In those circumstances, I am not persuaded that there was any latent error on the part of his Honour in not expressly referring to the fact of protection in his remarks. 31 Complaint is also made that his Honour failed to reduce the sentence appropriately, in the light of the applicant's plea of guilty and in the light of some evidence of his contrition. As I have already observed, his Honour considered that the applicant's plea of guilty entitled him to a discount of 20 percent. That appears to me to be far from an inadequate discount for the plea of guilty in the circumstances in which it was entered. 32 His Honour took the view, as the learned presiding judge has pointed out, that the plea of guilty followed Clarke's revelations about the offence and his Honour took the view that the applicant was left with little alternative but to plead guilty. His Honour was not satisfied that the applicant had originally showed any remorse, although he acknowledged that in his subsequent consultation with a psychologist he had shown some insight into the extent of his criminality. It is not entirely clear whether his Honour had regard to that material also in arriving at the discount for the plea of guilty but, whether the discount was assessed purely for the utilitarian value of the plea or whether it also incorporated such insight into the applicant's criminality as his Honour found, it appears to me that the applicant cannot justly complain about the consideration he was given on that account. 33 His Honour did not find special circumstances, so that the non-parole period maintained the proportion to the head sentence consistent with the relevant legislation. An argument was developed that his Honour's approach to that aspect was an unduly restricted one and failed to have regard to the principles governing the specification of a non-parole period considered relatively recently by this Court in R v Simpson (2001) NSW CCA 534. 34 I do not think that that is a fair reading of what his Honour had to say. There was material from which it was open to his Honour to have found special circumstances, but I am unable to say that he fell into error in not doing so. Insofar as the applicant might have reached a stage where his rehabilitation might be fostered, I note that, as the effective sentence stands, if he does achieve release to parole at the expiration of the non-parole period, he would remain subject to parole for a little over two and a half years. 35 Accordingly, I do not find any of the particular matters urged in the application for leave to appeal against sentence to have been made out. I should add that, in any event, in the light of the totality of this applicant's criminality, it does not appear to me that any effective sentence other than that which his Honour passed was appropriate. 36 For those reasons, as I have said, I would allow leave to appeal against sentence but would dismiss the appeal. 37 BELL J: I agree with the orders proposed by Hidden J in relation to both the appeal brought by the Crown and the applicant's application for leave to appeal for the reasons which his Honour gives. 38 MEAGHER JA: The orders of the court will, therefore, be the orders proposed by Hidden J.

R v Marsh

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