Director of Public Prosecutions v Marks

[2018] VCC 517

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-00352

DIRECTOR OF PUBLIC PROSECUTIONS

v

ISAAC MARKS

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Geelong
DATE OF HEARING:	19 April 2018
DATE OF SENTENCE:	19 April 2018
CASE MAY BE CITED AS:	DPP v Marks
MEDIUM NEUTRAL CITATION:	[2018] VCC 517

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Regan	Office of Public Prosecutions
For the Accused	Mr C. Pearson	Magazis & Associates

HIS HONOUR:

1Isaac Marks, you have pleaded guilty to one charge of armed robbery.  In addition you pleaded guilty to three related summary offences:  One of driving whilst disqualified, one of failing to exchange names and addresses after a motorcar accident and thirdly, using false registration plates.

2The facts of your offending are set out in Exhibit A of the prosecution opening.  I was informed by your counsel I could treat that document as an agreed statement of fact and I incorporate into these reasons for sentence.  I sentence you on the basis of the relevant facts as set out therein. 

3Relevantly but briefly stated, on 18 November 2017 you were driving the utility bearing false registration plates.  You were involved in a collision in Shern Avenue, West Geelong.  You left the scene without providing your details to the other driver and you were a disqualified driver at the time.

4You then went to Dan Murphy's car park in West Geelong.  You terrorised a man about to get into his vehicle, grabbed a hammer, threatened him and stole his motor vehicle.  You subsequently dumped that vehicle and invited a criminal associate to strip it for parts.

5You were arrested on 21 November and made a no comment record of interview.

6Your victim, Mr Panolzo, made a victim impact statement which was filed on your plea as Exhibit B.  He was fortunately insured against the loss of his vehicle but he still says that he strained his wrist as a result of the struggle with you, that he was very frightened when he saw the hammer; it was like he was in a life and death situation.  Fortunately the effects of the incident have worn off after six weeks and he now tries to forget it.  I take the contents of the victim impact statement into account in sentencing you.

7You have admitted an extensive prior criminal history.  Predominantly it represents an appalling driving record.  Although you do have prior appearances for threat to kill, criminal damage, reckless conduct endangering life, possession of controlled weapons and some dishonesty offences.  In addition you have several drug offences.

8Relevantly you have seven prior convictions for driving whilst disqualified and three for unlicensed driving and you have a prior conviction for using false number plates.

9Turning to your personal history, it is set out in Exhibit 2, the report of psychologist Ian McKinnon and summarised in Exhibit 1, the submissions of your counsel.

10You are currently 29 years of age, being born in Geelong on 8 February 1989.  You come from a supportive and decent family with five siblings.  Your parents now reside in Queensland.

11You moved from Geelong when you were two but returned five years later.  You suffered from a short-term memory issue which you saw you have difficulties at school absorbing auditory information.

12During your teenage years you exhibited difficult and challenging behaviour that you saw become estranged from your family.  You started polysubstance abuse at 12 years of age, using amphetamines before moving to ice.

13Your methylamphetamine use saw you develop drug-induced psychosis so bad that you were hospitalised at least on one occasion.

14You have not been substantially employed since leaving school at a very young age.  Apparently you were expelled for drug use whilst you were completing Year 7.

15Mr McKinnon, the psychologist, in his report says:

"Mr Marks' spoken English language skills appear to be developed and near adult average level.  His functional intelligence fell within the normal range.  Mr Marks appeared to be suffering from a long-standing depressed mood disorder currently of moderate intensity.  This depression appears to have its roots in Mr Marks' own sense of disappointment and personal failure; a reaction to his history of substance abuse, criminal offences and general ability to cope with the normal demands of adulthood.  He suffers from a polysubstance abuse disorder, primarily entailing his abuse of ice.

Mr Marks' history of substance abuse appears to be a product of his poor sense of self or a 'bad me' complex, depression and social and behavioural difficulties that emerged during his childhood, apparently triggered by his STEAM problems and associated consequences.  Mr Marks is likely to remain permanently and highly vulnerable to psychotic symptoms if he relapses into even minor illicit substance use.  Mr Marks will be at risk of developing into substance abuse, especially if his post-release circumstances are not stable.

In my opinion, Mr Marks does not possess an inherently anti-social or criminal character.  Despite some anti-social tendencies and a prior criminal history, his offences appear to be, have been largely unplanned and a consequence of his substance abuse, chronic distress and depression.

Mr Marks expressed significant remorse for his offending stating, 'I feel pretty low.  What I did, that sort, isn't, that isn't me.  I regret it 100 per cent what I did to that bloke.  I regret it.  I wish I could apologise to the poor bloke.  My offences stem from drug use.  I don't want to be living this life anymore'.

At the time of the offences, Mr Marks was typically smoking between half and one a half grams of ice on most days".

16So I take the contents of Mr McKinnon's report into account in sentencing you.

17I was informed that you are now medicate d for your depression in custody.  You are trying to look after yourself by keeping fit.

18Your prospects for future rehabilitation are entirely dependent on you remaining drug-free upon your release from prison.

19Your father recognises this in Exhibit 3.  He wrote:

"I am Isaac Mark's father.  When he is not on drugs he is such a wonderful, caring, good natured law abiding person.  We stand by him for when he wants help to recover from his drug habits, but we do not condone his actions when he is addicted to drugs".

20You father said that:

"We located to regional Queensland in Maryborough.  Our decision was made to relocate Isaac there to get him away from his circle of drug friends and peer pressure; to get him as far away from the influence of problems and troubles.  But he then decided to return to Geelong and commenced employment.  Working was a positive step.  Unfortunately he got involved again in drugs.  I know deep in my heart that Isaac, when he's clean from drugs, can be a constructive member of our community and society and given in time, his skills, talents and moral standards, can give back to the community, workforce, and with family and friends to be a giver and not a taker."

21Your father thanks me for what he is considering what is written and asked to give Isaac a chance to overcome his addictions and become a better person.  Ultimately obviously, that is a matter for you.

22In sentencing you, I take into account your pleas of guilty.  I accept that your plea was made at the earliest opportunity.  That it demonstrates remorse for your offending and you have spared the community the cost of a criminal trial and your victims the need to give evidence in court.

23You are entitled to a significant reduction in sentence to reflect your plea of guilty and I will return to the effect of that reduction subsequently. 

24I take into account the remorse expressed to Mr McKinnon and the remorse that is inherent in your plea of guilty.

25Thirdly I take into account your disrupted childhood and your short-term auditory memory issues. 

26Fourthly, I take into account your contingent and guarded prospects for rehabilitation.  I find that you are not yet beyond salvage.

27Your counsel urged that I impose a combination sentence of a term of imprisonment and a community corrections order.  I can only do so if the purposes of sentencing can be met by such a disposition.  Clearly general deterrence, specific deterrence, just punishment and denunciation loom large as sentencing factors in your case.

28Although I have accepted that your offending was spontaneous and spur of the moment and it resulted in the situation you found yourself in, and I regard your offending as a lower level example of the serious offence of armed robbery, your prior criminal history, the escalating nature of that criminal history, the seriousness of your offending is such that I am unable to accede to your counsel's submission.  Simply put, your conduct was too serious for the disposition sought by your counsel.

29On the charge of armed robbery, you are convicted and sentenced to be imprisoned for a term of three years and three months;

30On the three summary charges you are sentenced to an aggregate term of imprisonment of five months.

31I order that three months of that sentence be served cumulatively upon the sentence imposed for the indicatable offence.

32That is an effective term of imprisonment of three years and six months.  I order that you be eligible for parole after serving two years and three months of that sentence.

33I declare 149 days not including today of that sentence have already been served by way of pre-sentence detention.

34I make an order pursuant to s.464ZF of the Crimes Act for the provision of a DNA sample.

35I am obliged to inform you that the authorities are entitled to use reasonable force to obtain that sample.  So it is in your interests to co-operate.

36Finally, pursuant to s.6AAA of the Sentencing Act I indicate that but for your pleas of guilty, I would have imposed a total term of imprisonment of five years with a non-parole period of three years and six months.

37Any other orders required, Mr Prosecutor?

38MR REGAN:  No, Your Honour.

39HIS HONOUR:  All right.  Would you remove Mr Marks please.  Nothing else, gentlemen?

40MR REGAN:  No, Your Honour.

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