Director of Public Prosecutions v Marks

[2018] VCC 2110

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR 18-02340

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRIAN MARKS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Bairnsdale
DATE OF HEARING:
DATE OF SENTENCE:	10 December 2018
CASE MAY BE CITED AS:	DPP v Marks
MEDIUM NEUTRAL CITATION:	[2018] VCC 2110

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosectuions
For the Offender	Mr D. Taylor	Daniel Taylor Lawyers

HIS HONOUR:

1Brian Edward Marks, you have pleaded guilty to one charge of threat to kill and one charge of arson.  Those crimes carry maximum penalties of ten years and 15 years respectively.

2You have also pleaded guilty to one uplifted charge of unlawful assault, which carries three months, and one charge of act in a disruptive manner, which carries a monetary penalty only.

3You are now, we believe, 38 years of age.  You pleaded guilty at the earliest reasonable opportunity and expressed appropriate remorse subsequent to the offending.  You must get the utilitarian benefit of that plea and you made significant admissions when ultimately interviewed by police.  You do have a prior conviction for arson, though you are not a serious arson offender, and you do have a very long history in regard to violence and threats of various sorts.

4Accordingly, on the charge of threat to kill you are to be sentenced as a serious violent offender.  I am aware that the sentence is to be cumulative, unless otherwise ordered, and that public protection becomes the principal sentencing purpose.  The Crown do not seek a disproportionate sentence.

5The summary of the offending outlines that you are an Aboriginal man and you were born on the mission at Lake Tyers.

6In July of 2018 you were at the mission with your uncle, Gordon Marks, your father, and a number of other people.  You were all drinking, and had clearly commenced drinking very early in the day.  As it got darker people began to leave the property until only you, your father and your uncle remained at the house.

7In the early hours of the morning, at approximately 2 am, you went to your room, leaving your father and uncle in the kitchen living room area.  You returned minutes later, complaining that your uncle and father had been talking about you.

8On any basis there had been an enormous amount of alcohol consumed throughout the day.  You told police eight or nine beers - I do not really believe that.  It does not make any difference in one sense, because I accept that you would have all been intoxicated.

9In any event, you had an argument with your uncle.  You then bent down, pulled a chair out from underneath him, and he ended up on the floor.  You then placed your hands around his throat.  That's Summary Charge 4 of unlawful assault.

10He called for assistance, so your father pulled you off him, and your father then left the home.  Mr Marks then told you, "I'm going to call the cops".  You responded by going to your room, and you threw your bag out the front of the house.  Mr Marks left to go to his sister's house to make a phone call to police.

11At 2.10 am police received the call and attended at the mission and went to Mr Marks' home.  They first attended at the auntie's house - well, I believe she is.  They spoke briefly with Gordon Marks.  You were located by police in a bedroom, lying on the mattress.  Once being spotted by police you have stood up and began calling the police "white dogs" and "cunts" as you walked towards the bedroom door.  A conversation then occurred between you and Mr McAlpine, in which you were asked to come out of the room and talk about what had happened.  There has been no attempt to arrest you, or anything, at that point in time.

12Your response was to slam the bedroom door shut, and police then attempted to force open the door but were unable to do so.  You then began placing objects against the door, barricading yourself into the bedroom.  A request was made that you come of the room, as police were not leaving.  You responded:

"Fuck you, fucking white dogs.  Fucking dogs, I'm going to kill you all, then I'm going to come and slit my own throat.  You fucking dogs.  I did ten years because of you dog cunts, I'm not going back".

13That gives rise to the charge of threat to kill.  You further told police that you knew about shields and pepper spray, et cetera, and you told them that pepper spray did not work on you.

14In any event, further attempts were made to communicate with you to get you to come out of the room, and they were unsuccessful.  At that point the police observe what appeared to be a white towel being placed at the base of the bedroom door by you.  The smoke alarm sounded.  Within about 20 seconds you removed the obstructions from the door and partially opened that bedroom door.  Smoke began to billow out of the room and light from a fire could be seen in the corner of the bedroom.

15I would sentence on the basis that it was not really your intention to burn the house down completely, and it may have been that you got as much of a fright as to the extent that the fire took off as everybody else did, but the fact of the matter was that it burnt the house to the ground and I am not aware as to whether it was insured or not.

16Police then were able to kick the door open to the bedroom and gain entry.  A door struck you on the right side of your forehead, causing you a four to 5 centimetre laceration above your right eye.  A Taser was then used and you were grabbed by the arm and forced out.  At that point obviously the rest - and all parties - were evacuated from the house due to the intensity of the fire.  You were still uncooperative and had to be dragged out of the house.

17At approximately 12.30 am fire services arrived, but as I have said, the house was completely destroyed.

18It is a situation where, in circumstances of great abuse and threats from you, police showed a great deal of courage in removing you from what may well have turned out to be your grave, Mr Marks.  In any event, I sentence on the basis that the arson was not one that carries the heavier penalties proposed by the other section, but it certainly was an arson that had the potential to cause difficulty and clearly placed others at risk and should not be in any way at all allowed to occur.

19In any event, you were taken to Bairnsdale Regional Hospital under s.351 of the Mental Health Act.  You were not sectioned.  You were taken to the police station, where you made admissions.  You said you just lit a piece of paper and threw it on the bed.  It is a bit hard to see how that was occurring when you are putting towels against the bottom of the door, but I am not going to try and rationalise all this.  I accept that you were very intoxicated and we will go from there.

20In any event, you made the necessary admissions for these charges to be brought out.

21On 16 July 2018 you were in custody at the police gaol with two other male prisoners in a male cell, and you were seen on CCTV throwing coffee from a foam cup onto the floor and walls of the male cells before throwing the foam cup onto the ground.  That gives rise to act in a disruptive manner in a police gaol and is not exactly the worst example of it that I have ever encountered.  In any event, we end up with all those charges and you have to be sentenced accordingly.

22The circumstances here are that there is no victim impact statement from either your uncle or your father, or any of those who were present, and you have been now in custody for 150 days.

23The offending has to be regarded as serious.  Whilst it might be understandable in the overall circumstances it cannot be condoned.  There has to be general and specific deterrence - punishment is a bit problematic with you and denunciation is also a bit problematic.  Probably protection obviously has to play a part, and I am well aware of the provisions of the Act.

24The difficulty is in your situation you have a very significant criminal history.  The previous prior for arson you received a two month sentence, so it cannot have been a very serious example of it, but nevertheless.

25The real circumstances of violence that are concerning - and concerning in a number of other ways as well - are that in 2008, in March, you were sentenced in the Shepparton County Court to nine years' imprisonment with a non-parole period of seven years, with PSD of 547 days.  Some year and a half later the Court of Appeal increased that sentence to 11 years and six months with a non-parole period of nine years.  That was for intentionally cause serious injury and is a well-known authority in terms of intentionally causing serious injury at the higher levels.  You are not charged with that here, but the concern that really arises from your point of view, as opposed to the community's, is that you did the whole of 11 and a half years and were not granted parole.

26Whether - as is so often the situation with Kooris - you did not ask for parole, or simple refused it, I do not know, but you were released without any supervision four months prior to this incident occurring.  I am told by your counsel and accepted you had originally gone to your mother's, and to a very, very crowded house - where the Parole Board may have not let you go, in any event.  You went to Lake Tyers mission to try and live with your uncle and try and get your act together.  You have a situation where you have been an alcoholic the majority of your life and clearly have an acquired brain injury of some sort - whether it be by solvent use or alcohol use, no one seems to know.

27That has an effect that I take into account.  It is clear that when you have been drinking you can become paranoid, and it is a dreadful situation that you have only been at large for something like four months in the last 12 years.  It is hard to know what sort of progress can be made as a person with your difficulties in those circumstances.

28The circumstances of your background are described very succinctly in the remarks of the Court of Appeal.  You were referred to there as being born in 1980 in Bairnsdale.  Both of your parents were Aboriginal, and both suffered from serious alcohol abuse problems.  They separated before you turned four.  You then had an unsettled home life involving movements through country Victoria and New South Wales.  You left school in Year 9, had limited employment history, and you are a chronic alcohol and substance abuser; clearly including solvents.

29I would accept that you do have a degree of cognitive impairment; maybe because of intellectual disability or an acquired brain injury, and maybe a combination of both.  There was no other evidence of major mental illness, though you were taken to the hospital on the night of this offending and you are seeing a psych nurse in custody once a fortnight and you are on Avanza as a medication.

30I do not know the background of it, but you must have been making some attempt to get over alcohol if you were at the Percy Green Centre referred to in the Court of Appeal decision, and you tell me from the dock that you still have contact with family, who still talk to you whilst you are in gaol.

31You are at very serious risk, I would have thought, of becoming institutionalised - if you are not already - and that is to nobody's advantage.  You could be, fairly said, to have acted impulsively on this occasion, but you seem to have done that on many occasions when you were intoxicated.  Gaol - and very significant gaol - is the only available sentencing option here.  It is clearly out of the range of a community corrections order, or any form of combination sentence.

32The prospects of your rehabilitation have to be guarded, and the risk of you reoffending if you drink would be about 100 per cent, I would anticipate.  The difficulty is - and this is referred to in Bugmy, and many other decisions, and is well aware from long, extensive work in the Koori Court - that yours is a very common and very unfortunate situation.  It would be to everybody's benefit if somehow or other, upon your ultimate release, you were placed on some sort of supervision, so you get some sort of assistance and are not just thrown on your own devices, back into circumstances where alcohol is going to be abused by all those around you and, somehow or other, you are going to be asked to remain temperate.  I find that a challenging prospect, but it will not be a matter for me, it will be a matter for the Parole Board.

33As I have indicated to counsel, I am well aware of the decision of Bugmy.  To a limited degree the principles of Muldrock apply.  It is not a Verdins set of circumstances, but I do take all those matters into account.  Somehow or other I have got to impose an appropriate sentence for what you did, giving you some prospect of rehabilitation and not imposing a sentence which guarantees your institutionalisation.  How I am supposed to do that I have really got no idea, but in any event, taking all those matters into account, and having read the sentencing statistics over the last seven or eight years and seeing what the average sentence was for the crime of arson, I sentence you as follows.

34On the charge of threat to kill; 15 months - and obviously there you are a serious violent offender.

35On the charge of arson; two years and nine months.

36I direct that six months of the sentence imposed on Charge 1 be served cumulatively, or in other words; nine months served concurrently on the charge of arson.  That gives you a head sentence of three and a half years.

37In these circumstances I direct that you serve a minimum term of 24 months before becoming eligible for parole, though - as I have discussed with counsel - that is probably fanciful, and I declare 150 days reckoned as served under this sentence.

38I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of five years with a minimum term of three and a half.  Anything else I need to do, gentlemen?  The summary charges, sorry.

39MR CORDY:  Yes, beg your pardon.

40HIS HONOUR:  One month on the assault concurrent, convict and discharge on the disrupt of gaol.

41MR TAYLOR:  The court pleases.

42HIS HONOUR:  Yes, thanks, Mr Taylor.  Okay, do you want a moment to talk to him?  All right.  Yes, he can go now, thanks.  Good luck.

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