Director of Public Prosecutions v Marshall

[2016] VCC 729

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02018

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL MARSHALL

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2016, 15 March 2016
DATE OF SENTENCE:	27 May 2016
CASE MAY BE CITED AS:	DPP v Marshall
MEDIUM NEUTRAL CITATION:	[2016] VCC 729

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	Ms M. Mahady	Office of Public Prosecutions
For the Accused	Ms S. Holmes	Tony Hannebery & Associates

HIS HONOUR:

1Paul Marshall, it is a tragic fact that you have spent most of your adult life in prison here in Victoria, and in New South Wales.  Your past offences often involved serious violence.  Most recently, you were incarcerated in 2006 in Victoria for serious crimes of violence.  The sentence imposed was one of 11 years with a minimum of seven.  In 2008, you were sentenced by the Supreme Court for attempted murder.  The effect of the 12-year sentence was to lift your term of imprisonment to 17 years and reimpose a new non-parole period of 11. 

2Thereafter in 2010 and 2011 you were sentenced, and then the sentence was restated for another violence offence committed in prison.  The sentences were again uplifted.  You are not eligible for release on parole until the year 2023.  The end date of your sentences, if you are not granted parole, is 2026.

3You have pleaded guilty to two offences of making a bomb hoax, committed on 21 November 2014 in Barwon Prison, and then repeated just over there weeks later on 15 December 2014 at Port Phillip Prison.  The maximum term for these offences is five years.  As to what you did, the prosecution opening read out at the plea, set out the following.

4"On Friday 21 November 2014, at about 8.15, the accused exited his cell and was checked by prison officers.  He was placed in yard five, and shortly after requested to go to yard six.  The accused then handed a prison officer a note showing him a device with wires strapped to his chest.  He told the prison officer to inform prison management.  The note handed over was two pages with a handwritten step-by-step to the creation of an explosive device with the remark 'This is what I have strapped to my chest'.  Prison management then isolated the accused to yard six within a unit, locking down the area.

5"This commenced a process of negotiations between the accused and senior managers at the prison.  You requested to see the Corrections Commissioner, or the Corrections Commissioner's assistant, a request that was denied.  You also made reference to placement issues as being part of the reason for your actions".  I take this to mean where you were in the prison, what unit you were in, and the conditions that you were under.  I continue.

6"During the negotiations, you showed a black band strapped to your chest with a small hand-made round object attached to the middle of your chest with batteries and wires, and concealed in your hand was a wire connected to the device.  You stated the device was full of ground match heads, (indistinct), and ball bearings, with a battery to detonate it if officers entered the yard.  You stated the ball bearings were for maximum effect of blowing yourself apart.

7"You laid out a protest banner on the ground, which had reference to the IRA, and your membership.  You said you did not want to hurt anyone but yourself.  You also stated that you were committed to what you were doing, you have made peace with yourself, and there was no deal to be made.  You said you wanted the 'goon squad' to rush in on him, and stated 'If people had their homework on the device, they would it would detonate and make a loud bang'.  Negotiations continued until 11.35, when you finally agreed to remove the device and your upper garments, and you were secured by prison staff.  The incident caused huge disruption to the prison, resulting in lockdown of the prison and attendance of prison security, emergency services group, emergency response group, police critical response, and the bomb squad.  The device was secured and taken away by the bomb squad and forensically examined. 

8"The device was built in accordance with your handwritten note.  Examination showed it appeared to be the remains of a disrupted-improvised explosive device.  It did consist of match head composition, probably inserted into a ball from a deodorant can.  The ball was then inserted or taped into the match box, the metal beads taped to the outer surface as shrapnel.  It was apparently intended to function by connecting a bared wire to an exposed battery terminal, and heating the soldered connection by short-circuiting the battery.  It was not possible to determine how much match head composition was present, but the instructions said ten boxes.

9"There were several issues with the device, and it was unlikely to have functioned unless it was inadvertently dropped and crushed.  Match head composition is an explosive substance, as it can be used as a filler for improvised explosive devices.  Batteries connected correctly and fitted with a fuse head or electrical ignite, it would have been an improvised explosive device, and could have caused injury to those persons in the immediate vicinity.  A search of your cell located numerous empty match boxes, discarded matches, empty battery packets, tampered deodorant container, wire, and (indistinct) beads, all used in connection with making the device".

10As your next offence, the prosecution opening continued, "Subsequently you were moved to the Port Phillip Prison.  On 15 December 2014, you were the sole occupant in Charlotte unit.  At 10.20 pm, you contacted the Corrections officers through the intercom device, saying 'You better come to my cell, I have an explosive device'.  The prison officer attended and observed you seated in your cell holding an item in your hands, which the prison officer described as a cylinder with wires attached.  You stated then 'If I connect this wire to this section, there's gunna be trouble'.  The prison officer called an emergency code which brought members to the location.  You handed them, or their staff, an envelope with the words 'Swab this with your explosive kit', and along the friend was the letters IRAASU, being a reference to the Irish Republican Army Active Service Unit.  The envelope was tested by staff and returned positive indications for nitro-glycerine and explosive liquid.  The accused then said 'Well, you know I'm serious'.  The accused then showed other Corrections officers the device, which looked like a makeshift bomb.  Over the next few hours, you were spoken to a number of times and said at one point to a prison officer, 'As soon as they run in here, I'm going to set it off and take a few out with me'. 

11"Staff sent the result that they had to a forensic chemist with the Victorian Police, who advised that the results displayed made it unlikely it was an explosive device.  Enquiries by prison staff reveal that certain medications that you take would likely contain trace amounts of nitro-glycerine.  The accused further spoke to staff and eventually agreed to comply with their instructions.  You were secured and removed from your cell without further incident.  Wires had been removed from your television in the cell, however staff were unable to locate the device that had been seen by two officers.

12"As a result of your actions, numerous prison staff were called into the prison to assist with relocating prisoners from neighbouring cells as staff treated the threat as genuine".

13These were serious crimes.  You had made significant effort, planned and executed the crime so that the authorities were desperately concerned for the safety of the prison.  These crimes were no idle or obvious joke.  It all looked serious, which is what you wanted to achieve.  The crimes were directed at undermining the good management of the prison.  Prisons are hard and volatile places, where it is diabolically difficult to keep the peace, to keep all inmates and staff safe.  Violence simmers just below the surface and often breaks out.  Your prison time over the years is replete with outbursts of violence and misbehaviour. 

14Creating the turmoil that you did with the serious bomb hoax, is a crime ordinarily requiring a significant level of punishment.  The sentence must be proportionate, but here the gravity of what you did at Barwon Prison and then repeated at Port Phillip is such that proportionate sentence must involve a term of imprisonment.  That said, your counsel, in her comprehensively prepared and presented plea, explained the desperate situation you felt you were in. 

15Over time, you have behaved in such a way that you required close management in the prison.  Sadly, the system of management in our prison ultimately ends with prisoners being placed in severe isolation.  This has seen you locked in your cell for a very long part of every 24-hour day, mostly, 20, 21, 22, 23, or even 24 hours in your cell alone.  This form of near-on complete solitary confinement is a brutal form of prison management.  Also, in your circumstances, it has been for a prolonged period of time.  It is well-known that such isolation is psychologically debilitating, if not crushing.  Given your institutionalised history from being a ward of the State at 13, to adult prison at 18, and then almost continuously since, and your low psychological resources to fall back on, this punishment by such long periods without any contact with anyone else has caused you great harm. 

16You express this in your letter yourself, which I read today.  And I quote from it "Human beings are social creatures.  We are social, not just in the trivial sense, that we like company, and not just the obvious sense that we each depend on others.  We are social in a more elemental way.  Simply to exist as normal human beings requires interaction with other people.  Solitary confinement, that is, confinement of a prison alone in a cell for all or nearly all of the day, with minimal environmental stimulation and minimal opportunity for social interaction can cause serious psychiatric harm.  In my case, it did.  It is indeed long been known that severe restrictions of environmental and social stimulation has a 'profoundly deleterious effect on mental functioning'.  For my part, I hope new and better ideas about managing difficult prisoners start to be considered".

17Your mental health was deteriorating during 2014, at least from mid-2014.  It was in this context that you resorted to this dreadful form of protest.  When I say your mental health was deteriorating, again I point out that you were already a man with a serious personality disorder.

18I will elaborate shortly, but I pause to note that as your crime was committed in the prison, and it is a prison offence, and the provisions of the Sentencing Act s.16(3), require any sentence I impose to be cumulative on the sentence that you are undergoing, unless exceptional circumstances are established.

19Your counsel's submissions, based on the psychological and psychiatric evidence, were directed at establishing that your profoundly-disturbed mental health is a matter sufficient for me to find exceptional circumstances.  The prosecution contended that while your mental health problems are relevant to the sentencing process, that these matters were not at a level of exceptional circumstances.  Indeed, while your mental health problems may illicit some mitigational sympathy, the other side of the coin is the danger that you present, given your entrenched personality disorder and pattern of violence and threats in the past, both inside and outside prisons.

20Given your long history of crimes and sentences in the superior courts, you have been seen by one of the most experienced psychologist, Mr Ian Joblin, many times for Medico Legal Reports.  I have had the benefit of his reports 1988, 1989, 1994, and 1995.  In his report in recent times of 18 January 2016, he wrote the following.

21"There are a number of very important issues in relation to the assessment of Mr Marshall, vis-à-vis these offences".  He then enumerated them:  "One, there is no doubt that Mr Marshall has demonstrated symptoms of a personality disorder.  That was outlined in my previous reports; two, there is also no doubt that his psychological presentation reflects an institutionalised personality, that is, his values, attitudes and behaviours are all consistent with those necessary to exist in the criminal justice environment; three, I note that he was made a ward of the State and placed in Baltara in 1983.  Basically, since then,
Mr Marshall has been in custody for the greater majority of his life; four,
Mr Marshall now has little contact with his family.  In the past, his parents had visited, but he apparently has had no contact with them for some years".  He went on.

22"Six, it is interesting to note that Mr Marshall has a son and daughter aged 18 and 20.  He reported that they visit him occasionally at Barwon, and that these are the only visits he has".  Further, "The issue of his custodial presentation is a matter of some serious concern in my opinion.  He reported that he has been in Barwon Prison in a 23-hour lockup basically for ten years.  Obviously, I have not had access to the documentation to confirm that, and in my opinion, it would be important to secure that information.  Nevertheless, he reported that this has been the situation, he has been basically isolated in his cell, apart from one hour each day, for the past ten years.  He reported that this has been particularly onerous for him.  In my opinion, the offences for which he is before the court are symptomatic of the psychological result of such incarceration".

23He went on at paragraph 13, "Mr Marshall indicated on a recent occasion he suffered what he described as a 'psychotic episode'.  He reported that this was an experience he never wants to have again.  He indicated that he was delusional, and experienced vivid delusional hallucinations.  He became disoriented and felt disengaged from his surroundings.  As a result, he was taken to the acute assessment unit of the Melbourne Assessment Prison, where he was examined by Dr Bell, psychiatrist".  Mr Joblin concluded "Again, it would be of some benefit to obtain a report from Dr Bell". 

24Material was obtained from your Justice Health files, and in particular, from the reports and notes of Dr Bell, and from a neuropsychologist.  These documents were provided to Mr Joblin, and he wrote a further report, dated
13 May 2016, in which he said the following.

25"Dr Bell, in reviewing Mr Marshall in the document sent on 21 July 2014, indicated his opinion that Mr Marshall's history 'seems to be consistent with an antisocial borderline personality disorder'.  I note Dr Bell discussed an apparent question about Mr Marshall feigning symptoms.  I note Dr Bell indicated 'I am doubtful that this is the case.  I am reasonably satisfied that he has had a brief paranoid psychotic episode which is now resolving'.  And Dr Bell discussed medication".

26Mr Joblin went on that he noted the neuropsychological report of
February 2015, discussing your history, and the results of a CT scan at Geelong Hospital, which gave no evidence of acute pathology.  Mr Joblin then went on, referring again to Dr Bell, "Again, Dr Bell's undated report of two paragraphs sent on 21 July 2014, indicate 'There is an indication that he was starting to express paranoid delusional beliefs.  There is further discussion about suicide'.  As indicated, I note Dr Bell seems to be reasonably satisfied that he had had a brief paranoid psychotic episode.  Dr Bell further indicated some concern that 'he has had an episode of what appears to have been substantial deterioration in his mental health'".  Important is the following.  "I note further Dr Bell's concern that 'If he is sent back to Acacia, he may return to that mental state". 

27Having read all those reports, or that material in those reports, Mr Joblin remained confident in the opinions that he expressed earlier in January in the following paragraphs, where he said.

28"A personality disorder such as exhibited by Mr Marshall is in my experience, very rare, and it is easy to classify him as incorrigible.  However, at some point he will be facing liberty, and as indicated, it is my opinion the period between now and that occasion is important.  Symptoms of his personality disorder and institutional psychological state need to be addressed so that the dysfunctional factors can be relieved prior to his release.  There is significant work to be achieved, and it will not be done by attention to management issues alone over the time of a 23-hour lockup".

29He went on, "There is no doubt that he is a disturbed person with strong-entrenched symptoms of personality disorder.  Those date back to his time in Baltara, and were certainly outlined in my report of August 1988.  At the time he was 17.  One hopes that this is not the case where irreversible damage has been done, and rehabilitation is mythical.  It is my opinion that Mr Marshall needs strong assistance over the next few years to assist with release.  That should be directed at relieving some of the symptoms outlined in the report of 1988.  Mr Marshall, now 45 years old, acknowledged that he has an ambition to respond to such assistance, the emphasis there being that management in 23-hour lockdown is not conducive to any of those rehabilitative aspirations".

30It is important to note also your history of self-harm, which continued beyond the offence, but I am told it has now abated.  Your letter to the court does reveal that you have moved to a now well-developed insight into your offending.  You expressed in a determined fashion that you do not wish to reoffend with further prison offences.  You express some remorse, and importantly, a measure of hope.  That last matter, hope, is a sentiment that seems, in you, to have all been but lost.  It is a matter of note that you are expressing some hope in the letter that you wrote.

31When analysed closely, your offending, and the improvised devices, were directed at your own destruction, albeit in they were incapable of achieving that end.  That said, you made the claim to take out others if they came for you while negotiations were occurring at both prisons. 

32This question of exceptional circumstances is one that has troubled me a good deal.  The submissions of counsel has aided me in coming to a resolution.  In the end, your counsel's position was that when the following were considered, that exceptional circumstances were made out:  one, the deterioration your mental health, to the extent it did in mid-2014, which resulted in the very experienced Dr Bell saying that you should not return to Acacia; and two, the fact that you were returned to Acacia after your psychotic episode; and three, the extreme level of isolation and near-solitary confinement, and even when out on a one-hour release from your cell, the constraints, that all these things combined with your underlying mental health problem, these take the circumstances to a level of being exceptional.

33Put that way, I agree that exceptional circumstances are established.  The sentence I impose will not be one that is by law, wholly cumulative.  What I intend to do is give voice to deterrence to you, and to other prisoners.  To punish and denounce, and protect the prison community from you, while still keeping open your long-term prospects of rehabilitation.  You still see your 18 and 20-year-old children.  You want to have some useful time with them on your release.  All things being equal, you will be in your mid-50s when released, and hopefully with more than enough time to reintegrate into a society you have not known in your entire adult life. 

34But with those sentencing purposes in mind, I do significantly moderate the sentence because of the unique circumstances that exist.  The leniency in the sentence I am about to impose is not one likely to be repeated or passed on any other prisoner for such offences, unless like exceptional circumstances exist. 

35I spoke, during the course of the plea, of imposing an aggregate term for the two offences.  Counsel agreed that it was appropriate to do so.  I pause to say that the first crime, by reason of its planning and execution, and what was involved in it, is the more serious one.  That is said notwithstanding that the second offence was after the "warning", as it were, following your first offence. 

36What I intend to do is impose a sentence with a moderate level of cumulation to the sentences that you are currently undergoing.  For committing the crimes of making a bomb hoax, Charges 1 and 2, as an aggregate term, I sentence you to 20 months' imprisonment.  In your unique circumstances, I fix a non-parole period of six months.  I order that ten months of the sentence that I have imposed, that is, the 20 months, be cumulative on the sentence that you are undergoing, having expressed that I would impose a non-parole period of six months, I refix you non-parole period by adding six, or thereabout, months to your current non-parole period.  I was told that was six years, eight months, and two days, so the new non-parole period that I fix is seven years and two months. 

37Had you pleaded not-guilty to these offences, I would have imposed a sentence of two years, cumulative upon the sentences imposed, and I would have added 16 months to your non-parole period.  Has that dealt with everything?

38MS HOLMES:  Yes, Your Honour.

39HIS HONOUR:  All right, well to an extent, Mr Marshall, I cross my fingers.  These are technical matters in sentencing, which involve mathematics, and all sorts of things, which I notoriously get wrong.  If I have, you will be returned to me and I will try and get it right, but I think you understand the import of what I was trying to do, and I hope counsel do as well.  I thank counsel for their very significant assistance in this matter.

40MS MAHADY:  Your Honour, just one matter, disposal.

41HIS HONOUR:  I sign the disposal order, Mr Marshall.  It relates to the disposal of the items that they seized.  Ms Holmes, particularly for your assistance in respect of this matter.  There were no - just mere mantra that this was comprehensively prepared and presented plea.

42MS HOLMES:  Thank you, Your Honour.

43HIS HONOUR:  In difficult circumstances.  Thank you.

44MS HOLMES:  Thank you.

45HIS HONOUR:  Mr Marshall, you will now be returned with the prisoner officers again, I do not know what will occur when you are downstairs with regimes and protocols, and all that sort of thing, just get through it.  And for what it is worth, there comes a time in all prisoner's lives when they take stock and pull up, and just do the rest of the time and get out.  Be one of them.

46OFFENDER:  Thank you, Your Honour.

47HIS HONOUR:  Mr Marshall can be removed.

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