Director of Public Prosecutions v Marroquin

[2015] VCC 257

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01473

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANNY MARROQUIN
VLADIMIR RADU
DRAZEN SUSA

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 March 2015
CASE MAY BE CITED AS:	DPP v Marroquin
MEDIUM NEUTRAL CITATION:	[2015] VCC 257

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 J. Ayres
For Accused Marroquin	Mr J. Williams
For Accused Radu	Mr T. Gattusa
For Accused Susa	Mr R. Keating

HER HONOUR:

1Danny Marroquin, Drazen Susa and Vladimir Radu, you have each pleaded guilty to one charge of intentionally cause injury and one charge of robbery. You, Vladimir Radu, have also pleaded guilty to one charge of possessing a prohibited weapon which charge is uplifted pursuant to s.145 of the Criminal Procedure Act 2009, to be heard in this court.

2

The facts underlying your offending are as follows.  At about 4.30 am on

8 December 2013, the three of you were travelling in a car driven by you, Vladimir Radu.  The car was driven through the drive-through area of Hungry Jack's, where the three of you ordered food and then parked in a carpark in the shopping complex nearby.  At this time the victim whose name is Leif Egab, a security guard employed at the shopping centre, was working night shift.  He commenced his duties at 6 pm.  At about 4 am he began opening up the complex in preparation for the arrival of early staff and as he was working outside the centre towards the Kmart rooftop carpark, he saw the car with the three of you inside parked in the middle between Hungry Jack's and Kmart.  He kept going on with his duties and opened the door to the Kmart rooftop carpark before heading back to the centre entrance which was near the Westpac bank. 

3

You, Vladimir Radu, then got out of the front driver's seat of the car and approached Mr Egab and called out to him.  You took off your T-shirt and asked Mr Egab, "Security, do you want to call the cops on us?"  Mr Egab replied "No" and then you began punching him.  As Mr Egab tried to defend himself he became frightened and called out "Stop" to you, Mr Radu.  You,

Mr Marroquin and Mr Susa, then got out of the car and came up to where Radu and Mr Egab were fighting.  When Mr Egab saw this, he ran away, and the three of you chased him. 

Mr Egab then ran to the National Australia Bank where he knew there was a security camera as he did not believe he could get away from you. 

4When he got there, you, Mr Radu, and you, Mr Marroquin, caught up with Mr Egab and began punching and kicking him.  He fell to the ground and the two of you continued to assault him.  You, Mr Susa, then arrived and joined in the assault.  This incident was captured on two CCTV cameras situated at the NAB.  That footage was shown in the court.  It was an extremely nasty attack by three men onto one who was on the ground and it continued for some time.  He was clearly punched and kicked.  His head hit the glass as well as the concrete.  He felt you, Vladimir Radu, stomping on his head and pushing his head into the concrete.  He covered his face and head with his arms and felt kicks to his arms and stomach.

5The footage shows that you, Danny Marroquin, and you, Vladimir Radu, assaulted Mr Egab for about 77 seconds at which time he was on the ground in a foetal position and in a semi-conscious state.  You are seen to arrive at the scene, Mr Susa, about 30 seconds after the assault began.  Mr Egab's mobile phone, wallet and security ID were removed from his pockets after the assault began.  After you had finished with Mr Egab, the three of you returned to the car and left the scene.  The CCTV footage revealed that you, Vladimir Radu, punched Mr Egab about 27 times, kicked him about four times and stomped on him 18 times.  You, Danny Marroquin, kicked him about 13 times and punched him 12 times. 

6Mr Egab eventually managed to walk to the security office and raise alarm.  Police attended and he was taken to hospital.  He suffered bruising to his right eye and behind the left ear, grazes to his forehead and there was blood in his left ear canal.  He sustained a fracture of the left forearm, requiring an x-ray and plaster cast.  He required a CT scan which luckily did not reveal any brain injury and he was given analgesia for pain. 

7Police identified the registration number of your car, Vladimir Radu, and executed a search warrant on your home on 10 December 2013 where they found Mr Egab's bank and security ID covers and his mobile phone cover.  You, Danny Marroquin and Drazen Susa were arrested on the same day.  The three of you were interviewed and made admissions to the offending.  You, in your record of interview, Danny Marroquin, said that the three of you had been drinking.  You admitted getting out of the car.  You admitted chasing Mr Egab and you conceded that it had not been a fair fight as there were three onto one. 

8The maximum penalty for intentionally causing injury is ten years' imprisonment.  The maximum penalty for robbery is 15 years' imprisonment.  Your actions in assaulting Mr Egab underlie the charge of intentionally causing injury and the removal or the theft of his items in this condition of violence underlie the charge of robbery. 

9HER HONOUR: Police reached the home of you Radu, where a samurai sword was also located. You have pleaded guilty to a charge of possessing a prohibited weapon which charge has been uplifted to hearing in this court, pursuant to s.145 of the Criminal Procedure Act.

10I now turn to the personal circumstances of each of you, noting that none of you has any prior convictions.  I will begin with you, Danny Marroquin.  You are now aged 22 and you were 20 at the time of this offending.  Your parents emigrated here from El Salvador and you are the youngest of your siblings, all of whom were born in Australia.  You have two older sisters, both of whom are employed.  Your father until recently worked as a courier driver, running his own van and your mother has worked as a cleaner.  You had a good upbringing, however it was marred by the fact that your father was clearly traumatised by what he had undergone in El Salvador. Several of his brothers were executed by the military and he witnessed a number of atrocities.  For many years he was an alcoholic, indeed until you were aged 13.  He apparently has had a short temper and you have had a strained relationship with him. 

11You completed Year 11 at Westall Secondary College, then left to take up a panel beating apprenticeship at a company, Barloworld, in Moorabbin.  However, this apprenticeship lasted only three months as you were very badly treated by older employees.  In fact, you were bullied and you decided to return to school.  You struggled with Year 12 and ultimately, even though you were undertaking VCAL, failed in a number of subjects. 

12You were then unemployed for about two and a half years.  You were extremely dejected by your experiences at work at Barloworld and by your academic failures in Year 12.  You are a very talented soccer player however.  You have played for a number of soccer clubs, in particular, Kensington City, where you have played in the last three to four seasons. 

13You have not apparently had problems with drugs but you told psychologist Jeffrey Cummins, whose report dated 16 October 2014 was tendered on the plea, that alcohol became a problem at one stage and but that between the ages of 15 and 17 you were binge drinking.  You were, however, drinking a great deal on that evening.  It was apparently Mr Radu's birthday.  You were also all smoking marijuana. 

14Mr Cummins did not find that you had any personality problems and it was his view that alcohol had played a very significant and disinhibiting role in the offending which I accept was out of character for you.

15After you were charged, you were released on bail under the supervision of Youth Justice from August 2014. I received a report from Gene Bell, an extremely experienced youth worker, known to these courts.  He says you had engaged very well with Youth Justice and the Youth Substance Advocacy Service where he sent you for counselling.  He said that you had favourable prospects of rehabilitation and he also gave evidence on the plea.  In his report, he said that you presented as anxious and immature with low self-esteem and that there were in fact troubles within your family in terms of your father's trauma.  It seems he suffered from nightmares and was extremely short tempered.

16You revealed to Mr Bell, in your sessions with him, that you had a longstanding feeling of inadequacy and being unable to please your father, even in relation to your successful soccer career.  He believed at that time that you suffered an underlying anxiety and depression.  YSAS reported that you had little idea about the effects of alcohol abuse but had engaged extremely well and took in information given to you "like a sponge".  As well as continuing with your soccer playing, you also took up gym training.  It was quite clear from the report of Mr Cummins, from what Mr Bell had said and from various references from family friends that you are very remorseful and ashamed for your actions. 

17In July 2014, you took up a panel beating apprenticeship with Mark Lawson and I received a written reference from him.  However, the plea was adjourned to October 2014.  At the time of the first plea you had only been engaged in Youth Justice and the apprenticeship for a very short term.  Evidence on the further plea from Mr Bell and Mr Lawson on the return date was outstanding.  Mr Bell was full of praise for your attendance and participation in the many counselling sessions you'd had involving complex issues surrounding your family.  Mr Lawson, who was a sole operator, had been previously reluctant to take on employees because of his very high standards.  He described himself as a man who likes to get things done himself.  He described you in positively glowing terms as to your application, dedication and perfectionist work standards which he said had both surprised and impressed him and you continue working there to this day.

18

I am not only satisfied that you are truly remorseful for your offending as was evidenced by your plea of guilty, by your exceptional efforts and progress in rehabilitation and your efforts to stop drinking (at your 21st, I think even then you did not drink), as well as you expressions of remorse to

Mr Bell, to Mr Cummins and Mr Lawson, I accept you now have excellent prospects of rehabilitation. 

19The plea in this court took place just before your 22nd birthday meaning that Youth Justice Centre detention was not an available option.  The offending was extremely serious and effectively a vicious gang attack upon a single man who had done nothing to provoke you in any way.  The CCTV footage was in my view quite chilling to watch and ordinarily someone in your position, Mr Marroquin, (and as I think I said to the three of you at the time, you are very lucky you are not facing a charge of intentionally cause serious injury, given to the fracture to the arm) could only expect a custodial sentence.

20However, my view is that you are a young, immature man with underlying psychological difficulties who on this night uncharacteristically drank a very large amount of alcohol and used marijuana which disinhibited you and cause you to behave in what I accept was a completely uncharacteristic way.  I take into account your youth, your remorse, your plea of guilty, your lack of prior convictions and excellent rehabilitative prospects. 

21In addition, the comments of the Victorian Court of Appeal make it clear that yours is a case which falls precisely into the category of suitability, outlined by Their Honours in the recent decision of Boulton, that is, that a community corrections order in your case properly answers the punitive and rehabilitative aspects of the sentencing exercise before me.  You have been assessed as suitable for such an order and I propose to place you on one.  Now what I am going to do is I am not going to take you through the conditions yet, Mr Marroquin.  I am going to proceed to the sentencing for the other two.  Then I will come back and deal with each of you individually but you are being placed on a corrections order and can I say, I congratulate you on the excellent progress that you have made.

22

I now turn to you, Vladimir Radu.  You are now 20 years old and you were

19 at the time of the offending.  You and your older sister were born in Serbia and brought here by your mother to escape the war when you were about seven months old.  You have never met your biological father.  You moved to New South Wales in Wollongong.  Then, when you were about three or four, your mother re-partnered unfortunately with a very violent man and you recalled him throwing you onto a concrete floor when you were only about three or four.  You recalled your mother trying to protect you from his attacks and you also recalled your mother being held hostage in her room.

23The family moved to Melbourne when you were 12 and then followed years of unstable living.  At first you lived in Epping but your mother had so much trouble finding accommodation that at one stage you lived with your sister's boyfriend's father.  Eventually she found a unit in Werribee, however you joined a local gang called The Bloods, pretending you were 18 when you were in fact only 12 or 13.  You apparently longed for acceptance.  You did not actually offend in that gang but it caused a great deal of trouble between you and your mother and a period of difficulty and estrangement between you.  By then she had a new partner who was very strict.  When you were 14, you were removed from your home for a few weeks by the Department of Human Services after a violent incident where a plate was smashed over you but you were then returned. 

24You undertook Year 12 VCAL at Dandenong Secondary after your family had moved to that area.  Between the years of seven to ten at secondary college you had a teacher's aide but you had a lot of trouble at school with bullying and somehow to your credit managed to undertake, as I said, Year 12 VCAL.  You then worked at KFC for six months and then sporadically worked, doorknocking for charities and electricity companies.  You also undertook some TAFE studies in building and construction and hospitality.  You were then unemployed and looking for work over about 12 months.  You began, after a time, attending a gym and undertaking weight training. 

25Eventually you were assessed by Centrelink to be your mother's paid carer, she having suffered heart attacks and a nervous breakdown.  The two of you then moved to Koo Wee Rup where you and she lived in rented premises but you have now, with the assistance of various organisations that I will refer to, been moved back to Dandenong and are residing in a boarding house there. 

26You began drinking alcohol when you were 17, which quickly escalated to weekend binge drinking and you began using steroids in November 2013 because you wanted to become a bodybuilder.  You told neuropsychologist Jane Lofthouse that you used a great deal of this drug in the month leading up to the offending.  You have not used drugs since the offending, however you also used a fair amount of alcohol and sporadically used ice.

27Following your arrest, you were also placed on Youth Justice supervised bail.  Youth Justice case manager Jo Linniard, in her report, wrote positively of your engagement which she described in evidence on the plea as "fantastic".  She described you as having real problems with memory and function, as being a person who was eager to please but as a result of her concerns, psychoneurological testing was undertaken.  This revealed that you had an overall IQ of 67 which means you suffer an intellectual disability and you have been accepted as a client by Intellectual Disability Services, which is in fact very helpful for you because they offer a range of supportive services that it seems to me you very much need.

28It seems that your offending on this occasion was also uncharacteristic and marked by an enormous consumption of alcohol.  I had not described it in particular when I was outlining the facts underlying your offending but it seems that you were in particular drinking whisky and in fact had been drinking a bottle of whisky between the three of you that night in a car.  You had also been using steroids and you were smoking marijuana.  You had over that time developed some paranoid suspicion that your victim was going to call police.  You saw him take out his phone and you believed for some reason that this was going to get you into trouble and that is why you acted in this uncharacteristically violent way.

29

You have now been prescribed antidepressants which is appropriate, given that you have suffered depression and anxiety, according to the psychological assessment, for some time.  You are attending a psychologist and you have been admitted to a Step Up Mental Health Unit Preparation and Recovery Centre and have attended successfully on YSAS.  You have also received a report from Jesuit Social Services who have been helping you with various appointments you need to undertake and I heard from Michelle -

Ms Wimmering of Jesuit Social Services who gave evidence of her capacity to assist you, not only in attending appointments but to help you in finding work ultimately in a factory which is what you want to do and she noted also that JSS has a disability program that can be accessed by you.

30Again, this offending is extremely serious but I do find it is uncharacteristic.  You have no prior convictions despite your deeply troubling and traumatic past.  You have an intellectual difficulty.  I am satisfied that you have attended to the alcohol and steroid and drug problems which had a large part to play in the offending, that you have made excellent progress, that you now have a number of supports in place built in to deal with both your intellectual and emotional difficulties.  I find that you have good prospects of rehabilitation and a justice plan has also been prepared which will be part of the community corrections order which I find is an appropriate disposition in your case as well, bearing in mind also the dictates of Boulton's case which has precise application here.  You have also been assessed as suitable for a community corrections order and I propose dealing with you in this manner.

31

Finally, I turn to you, Drazen Susa.  You are 19 years of age and you were

18 years and nine months of age at the time of this offending.  Your family is Croatian but they were living in Serbia at the time that the war broke out and fled to Australia as refugees when you were three and a half.  Your father had been imprisoned and tortured and had difficulty adjusting here.  Your family had first lived for some years in Darwin in Housing Commission housing where you were assisted by a Serbian woman, but came to Melbourne on your tenth birthday, settling in the Dandenong area.

32You completed Year 12 VCAL and Cleeland Secondary College.  Whilst at school, you worked at KFC and McDonald's from between the ages of 14 to 18.  After leaving school, you worked at McDonald's on a full time basis but you stopped working in 2013, hoping to take up another occupation which, however, did not work out. 

33You live at home with your family which includes your father who has a small business making fishing sinkers, your mother, your three brothers and a sister-in-law and your sister.  Your father had had a drinking problem until he came to Melbourne and it was accepted that you come from a hardworking, law abiding family and a supportive family. 

34When you were 18, you began smoking marijuana occasionally, then on a daily basis.  You were a casual drinker.  You had tried ketamine on a couple of occasions.  You were a close friend of Vladimir Radu and through him met Mr Marroquin on the evening.  You too were drinking to excess and smoking marijuana on the night of Mr Radu's birthday.  You expressed considerable remorse for your offending to psychologist Dr Joseph Poznanski, whose report was tendered on the plea.  You were diagnosed by him as having a cannabis use disorder and his opinion was that if you had not been affected by marijuana and alcohol, you would not have offended in the way you did.  I also find that this offending is uncharacteristic for you.  He noted that you came from a stable family and were not anti-social.

35You also were placed on bail, supervised by Youth Justice and it appears you have engaged well.  You have not reoffended.  You have attended YSAS and you have displayed, according to Ms Linniard, good insight into the link between drug use and offending and you do not use drugs now.  You have completed a Positive Lifestyle Program and I received a report to that effect from the Salvation Army and it noted also that you participated well.  You are presently undergoing a Certificate 2 in Warehousing and Logistics which is an area where you hope to be employed. 

36I also find that you have good prospects of rehabilitation.  Again, I repeat, the offending was extremely serious, extremely nasty.  But you are still a youthful offender for the purposes of sentencing.  You have good prospects of rehabilitation.  You have pleaded guilty.  You have no prior convictions and nothing subsequent and in all the circumstances it is my view that again, Boulton's case has precise application in your case and that you should be placed on a community based order.

37Now, could you all stand up, please?  I will start with you, Mr Marroquin.  This applies to all three of you.  I need to outline to you the core conditions or the fundamental conditions that apply in any community corrections order.  They are, first, that each of you must report to the community corrections office within two working days of being placed on this order.  That is, by Tuesday of next week, Monday is a public holiday.  Secondly, whilst on the order you must not commit any offence punishable by imprisonment, either inside or outside Victoria.  Third, you must not leave Victoria without the permission of the community corrections office.  Fourth, you must attend upon and receive visits from the community corrections officer.  Five, you must inform the community corrections office of any change of address or employment within 48 hours of that change and six, you must obey all lawful directions of the community corrections officer.  I am going to order that each of you be placed on a community corrections order for a period of 20 months. 

38In your case, Mr Marroquin, how many days a week are you working?

39OFFENDER:  Five.

40HER HONOUR:  Five.  All right, in your case I am going to order that you undertake 150 hours of unpaid community work.  I am going to order that you report to and receive assistance for mental health difficulties.  All that means is that you will continue basically with the regime that you are now on but that will be the special condition.  Thank you.  So are you prepared to enter that order?

41OFFENDER:  Ah yes.

42HER HONOUR:  All right, you have to - I can only place you on the order if you agree to it.

43OFFENDER:  Yes.  Well I - I agree.

44HER HONOUR:  All right.  Thank you.  Mr Radu, the special conditions in your case are that you are to undertake 150 hours of unpaid community work and you are to be assessed and receive treatment for mental health difficulties.  All right?  Thank you.  Mr Susa, I am going to order that you undertake 150 hours of unpaid community work.  I am going to order that you are assessed and receive treatment for drug problems.  I know that that has been largely attended to you by you but I think that is an issue that needs - your issue that needs dealing with.  All right?  Do you, Mr Radu, do you agree to being placed on this order?

45OFFENDER:  Yeah.

46HER HONOUR:  Yes, thank you.  And you, Mr Susa, do you agree to be placed on this order?

47OFFENDER:  Yes, Your Honour.

48HER HONOUR:  Good.  Also, in relation to Mr Radu, the other condition will be that a justice plan will be attached.  In fact, what I will - actually I might revisit Mr Radu's.  Given that a justice plan is being attached, I will take away the mental health condition.  I will still order the 150 hours but I will just attach the justice plan.  All right? 

49MR GATTUSA:  Yes, thank you, Your Honour.

50HER HONOUR:  Now what the justice plan means, Mr Radu, is that Intellectual Disability Service will be looking after you and you have to do what they say.  All right.  Usually people who are clients of Intellectual Disability Service only - it is voluntary participation but when it is part of a justice plan, they have to do what they are told and I am sure your counsel will explain that to you.  All right.  The three of you can have a seat while the documentation is prepared.  No, I do not actually.  I do not think they need supervision.  I do not think they need judicial monitoring either but I am not ordering supervision or judicial monitoring because they have all done so well.  I do not think it is ‑ ‑ ‑

51MR AYRES:  Just a forensic sample order's sought, Your Honour.

52

HER HONOUR:  I do not know that that is - no, I am not going to grant it,

Mr Prosecutor.  It is not that - they have not engaged in the type of offending where a DNA sample would have been particularly helpful, given the CCTV footage.  I must congratulate the victim in this matter of having the acumen to go where he did.  They have got no priors, their prospects are very good.  It has been quite some time since the offending so no, I am not going to order it in this case.

53MR AYRES:  Your Honour please. 

54HER HONOUR:  Thank you.  Yes, all right.  I am also going to - I know that you have already done this, Mr Marroquin, but the other two, I do not think it would hurt for the victim to receive a letter of apology from each of you.  So I am going to ask that that be done.  All right.  What I have not referred to is the victim impact statement and unsurprisingly as a result of this attack, Mr Egab generally feels a lot less safe in the community, a lot less safe in his job.  That sort of violence has a profound effect on a person's feelings of security and wellbeing.  It is not a matter of it was a very nasty attack, it came from nowhere, he had done nothing to provoke you and it is extremely important that that be acknowledged.  But also it is extremely important that Mr Egab not feel as if he has been attacked by monsters who do not care about his life or his future.  I think it would be extremely helpful if sentencing remarks were forwarded to him so he understands the background of each of you. 

55

My overall comment is that each of you had underlying problems in your life which had not been so significant that they had led to any sort of criminal offending but that each of you was grossly disinhibited on that night by the drugs and alcohol that you had taken and that this lay at the heart of what is very uncharacteristic offending.  Now that is no comfort to Mr Egab but he does need to know the circumstances in which you came to behave as you did, to understand the sort of young men you are and to feel that there has been some thought by each of you about what you have done to him.  So I am going to ask each of you, I know that you have already done this,

Mr Marroquin, but it needs to be organised via your solicitors, that these letters of apology be forwarded to him through the informant.  Get the informant to check as to whether or not he is prepared to receive those apologies but I do think it is an important acknowledgement that should be made.  All right.  Thank you. 

56COUNSEL:  As Your Honour pleases.

57HER HONOUR:  I particularly thank Youth Justice for their considerable assistance in this matter and I thank Mr Lawson for attending on the two occasions when he's a busy man, but it's been enormously helpful as well and I thank Mr Bell and of course above and beyond all, I thank counsel.

58MR WILLIAMS:  Thank you, Your Honour. 

59HER HONOUR:  Particularly Mr Gattusa because he barracks for Collingwood. 

60MR GATTUSA:  Always helps.

61HER HONOUR:  So much more helpful.  All right.  No, Mr Susa's not having any mental health assessment.  No, Mr Susa's only having the drug one.  No, I can understand why.  Look, it is all right, I have crossed it out so don not bother, it does not matter.  All right, so we will just get - that one is right.  Then, yes, it is good.  Do not bother printing out Mr Susa's again.  It is fine.  Yes, that is terrific.  We will get all three to sign that.  Thank you, gentlemen.  And because I have imposed a community corrections order, I do not have to make a s.6AAA declaration.

62MR GATTUSA:  Absolutely not.

63HER HONOUR:  It is probably the main reason why I impose them.  Boulton's case, very welcome. 

64MR GATTUSA:  From this end as well.

65HER HONOUR:  But I only found that out about a year ago.  I was furious.  I had been doing all these unnecessary s.6AAA declarations. 

66MR GATTUSA:  Would Your Honour mind, given Mr Radu's difficulties, if I approached while it's being explained to him just to make sure he understands?

67HER HONOUR:  Look, I am sure ‑ ‑ ‑

68MR GATTUSA:  He's already signed it.

69HER HONOUR:  He has signed it.  Too late.

70MR GATTUSA:  I'll go through it with him outside.  I'll make - I'll go through it.

71HER HONOUR:  All right.  Well could we just cross them out and do we have to - no, yes, you are going to have to print them off.

72(At this stage the court proceeded with another matter.)

73Very well.  Here are the community corrections orders.  Stand up, please, gentlemen.  You have all done extremely well.  You have all, you know, if you had not done as well as you have done, there is no doubt that you would either be looking at gaol or Youth Justice Centre detention so you should all be very proud of yourselves.  You can have the best counsel in the world and you can have all the help in the world but if you do not respond to it, there is not much a court can do.  So I congratulate you all.  I do not ever expect to see any of you again and I wish you good luck on the orders.  You can come out of the dock now.  Again, I thank counsel for their assistance.

74COUNSEL:  Thank you, Your Honour.

75HER HONOUR:  Thank you very much. 

‑ ‑ ‑