Director of Public Prosecutions v Marshall

[2015] VCC 979

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-11-01216

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARYL MARSHALL

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February and 20 July 2015
DATE OF SENTENCE:	21 July 2015
CASE MAY BE CITED AS:	DPP v Marshall
MEDIUM NEUTRAL CITATION:	[2015] VCC 979

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:       Sentence – contravention of suspended sentence – recklessly cause injury – exceptional circumstances

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited: R v Verdins [2007] VSCA 102; R v Steggall (2005) VSCA 278; R v Ioannou [2007] VSCA 277; R v Fuller-Cust [2002] VSCA 168

Sentence:Convicted and discharged. Exceptional circumstances established. Order that the operational period of the suspended sentence be extended for a further 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Atkinson	Solicitor for the Office of Public Prosecutions
For the Offender	Mr C. Pearson	Vassis & Co

HIS HONOUR:

1In this matter I have before me Mr Daryl Marshall who was sentenced by me in Bendigo on the 28th day of June 2012.  That sentence involved a suspended sentence of three years.  The offence was one that was perhaps read more seriously than it was, than the circumstances demonstrated, Mr Marshall having pleaded guilty to one charge on the Indictment of cause injury recklessly and with a co-accused also having pleaded guilty to one count of robbery.

2The background to the sentence is set out clearly by myself in the reasons for sentence and was a sentence obviously that was a joint sentence. On Charge 2, I sentenced Mr Marshall to a period of imprisonment of 18 months and ordered that the imprisonment pursuant to the provisions of s.27 of the Sentencing Act 1991 (Vic) ‘the Act’, as it then existed, be wholly suspended for a period of three years.

3Insofar as that was concerned, I said to Mr Marshall the following at paragraph 48, "You should have no misunderstanding that if you consent to enter into such a sentence, if you come back and have committed any offence punishable by imprisonment, then the provisions are that unless there are exceptional circumstances, you will have to serve the whole 18 months."

4Remarkably, one would have thought, and given the chance that Mr Marshall was given, within 19 months of that sentence on 11 January 2014, he committed the breaching offence.  The seriousness of that breaching offence should not be misunderstood.  The offence was one for which he was subsequently convicted and sentenced to a period of two months' imprisonment, which itself was suspended for a period of 12 months.

5As I said, the circumstances of that should not be misunderstood.  This is on a history of other offences involving violence and circumstances where an inability to control oneself by way of temper has led to prior matters.  As I said at the time that I sentenced Mr Marshall, you do not get sentenced again for your prior matters.  However, they do limit what one can do.

6In an extensive plea, I suppose is the way to put this, we are now I think another 18 months down the track.  Mr Pearson has valiantly sought to keep Mr Marshall out of gaol.  His first submission was that I should in all the circumstances consider that exceptional circumstances have been established because of the materials that I will come to later and that perhaps - and I point out no reflection upon the sentencing Judge - that perhaps a full understanding of Mr Marshall's condition was not comprehended by the Court at the time.

7I should point out that the Court did have a psychiatrist's report of a Dr Cidoni dated 7 June 2002, Dr Cidoni being a well-known consultant psychiatrist practising in forensic and adult psychiatry.  There was no R v Verdins [2007] VSCA 102 ‘Verdins’ argument as such put.  However, it was clear that there was a problem with an acquired brain injury emanating from an assault upon Mr Marshall and an ongoing major depressive disorder.  As I had set out in paragraph 35, he had suffered from post-traumatic symptoms in regard to such and had some issues with alcohol abuse in the past.

8As was obvious from both Dr Barry and Mr Cidoni, there was a need for neuropsychological testing.  Unfortunately even as of today's date, such has not been obtained, but I was given two additional reports, one from Dr Ajit Emmanuel, a consultant psychiatrist dated 23 February 2015.

9The important background factor, which was recognised by me in the sentence is the fact that Mr Marshall was brought up in a circumstance of childhood trauma and physical abuse with exposure to domestic violence.  He, unfortunately as a result of that, and his father targeting him, developed an angry temperament by way of his own personality.  However, he has worked very well, made contributions to the community, contributions to his own family and established and continues to establish a good personal relationship.

10Those matters have not changed.  What did change is the determination by the doctor having assessed it, reported at the second page that, "Daryl has an ongoing personality problem with anger and impulsive traits", there is no issue with that.  However, he reported:

"There are some symptoms suggestive of brief psychotic episode, of a schizophrenia type illness and this needs further exploration.  Since he has experienced a life threatening traumatic event, one may need to consider a possibly diagnosis of PTSD."

11Again it was stressed that he needs to maintain psychological attendance and help.  There was a further updated report of Dr Riddell, psychologist, Exhibit 1A dated 16 July 2015.  Insofar as that report is concerned, Dr Riddell had the benefit of Dr Emmanuel's report.  Having considered all of the circumstances, he was of the view that the physical diagnosis was one of an acquired brain injury, but the psychological diagnosis was one of complex post-traumatic stress disorder.  That related probably to the domestic assaults and the post-traumatic stress disorder to the assault.  However, since that time and something that was not before the Court was, as set out in paragraph 2:

"The worsening psychological diagnosis in my opinion is delusional disorder with psychotic depression consisting of acute paranoid delusions, occasional auditory hallucinations with schizoid personality symptoms including social detachment, aloofness and apathy."

12I think it is important that in the body of the report, in summarising the results of the diagnosis of the PTSD and the delusional disorder, he analyses the summary of the Millon clinical multi-axial inventory used by way of psychopathological questionnaire.  I note insofar as the areas of assessment on the third page of this report set out both the personality disorders and the clinical syndromes and the comments under are as follows:

"My findings here are consistent with psychiatrist Dr Emmanuel psychiatrist at the Sternberg Clinic who assessed Daryl.  These findings of delusion and schizotypal disorder are new as far as I am aware.  I believe these disorders are the result of his other conditions being poorly identified and treated."

13I think suffice to say, despite a number of experts telling Mr Marshall that he needs treatment, he has failed to look after himself in that regard.

14The essential propositions put to me concern a regime that is no longer before the Court.  The suspended sentence has now been eliminated from the legislation, and indeed in order to look at the relevant provisions, one has to now extract from an earlier document the relevant provision.

15The application is one firstly made under s.83AB of the Act insofar as the contravention of a suspended sentence and then the provisions that relate to it are now contained under s.83AR of the Act.  That provision requires, as I told Mr Marshall when I sentenced him, that unless there are exceptional circumstances, the Court must restore the full sentence and order the offender to serve it, in this instance the full 18 months.

16The issue as to the meaning of exceptional circumstances, in this context, has taken up some number of judicial considerations but in particular firstly a case of R v Steggall (2005) VSCA 278 ‘Steggall’ a matter in which I was initially involved as the sentencing Judge, a determination of Buchanan, Eames and Nettle JJJ of 23 November 2005, and R v Ioannou [2007] VSCA 277 of 4 December 2007.

17At p.7 of that report, Appeal Justice Redlich quotes the reference to the definition of exceptional circumstances as contextually set out in the dictionary.  He goes on at paragraph 17 to say this:

"It is I think apparent from these extracts from the clear legislative intent implied in the use of the term "exceptional" that circumstances which would justify a departure from the strong expectation that an individual who has been permitted to remain in the community under such an order and has breached it by the commission of a further criminal offence will have the sentence restored must be clearly unusual, or quite special, or distinctly out of the ordinary.  As these expressions indicate, the circumstances cannot fall within the range of normally anticipated consequences, behaviours or exigencies."

18His Honour refers back to Steggall as not being an authority for the proposition that circumstances can only be exceptional if they are on the reasonable expectation or contemplation.

19The marrying of that definition to the circumstances of this case is not easy.  I find we still do not know, and certainly at the time of my sentence, did not know the full ramifications of Mr Marshall's psychiatric or psychological condition. They have now been further developed in this hearing and in the circumstances I am satisfied that there are exceptional circumstances established.

20That is not in any way that it creates a Verdins situation as to the breach offence, or indeed for the original offence.  However, the Court is now appraised with a more broad or overarching assessment of the person whom the Court has to deal with.

21It seems to me that in those circumstances, if I exercise the power set out in s.83AR(1)(a) of the Act, that is restore the full sentence, that such would be an unjust exercise by myself because of these circumstances.  The real issue that has troubled me, and why I sought counsel's further comment this morning is what do I do then?  It was and clearly is a matter of consideration.  The alternatives presented are ss.83AR(1)(b), (c) and (d) of the Act.  It seemed to me that it is not appropriate to make no order, so that only leaves ss.83AR(1)(b) and (c) of the Act.  I was overnight, and still am concerned with the type of behaviour that Mr Marshall indulged in.  This was behaviour that he could have refrained from.  He maintained it and ultimately carried out a severe assault upon the victim in this matter, just the type of behaviour that I had admonished him about and indicated to him what would happen if he was involved in such behaviour.

22In such circumstances, I therefore considered overnight the imposition in all the circumstances, not of 18 months' imprisonment, but to restore six months.  That was the reason why I asked for further submission from Mr Pearson.  Having heard that I was so minded, Mr Pearson suggested an alternative, still based on the finding of exceptional circumstances, but that would be an extension, which the learned prosecutor agreed I could do under s.83AR(1)(c) of the Act, that is to extend the period of the order suspending the sentence.

23As I said, I wanted some time to consider that matter.  It is always difficult with a person with the background that Mr Marshall has had.  To see the impact of the manner in which our original inhabitants of this country now live and have been brought up in many instances is a great sadness to many Judges.

24However, as I pointed out in the sentence and was pointed out by the Full Court of Appeal, because you are Aboriginal does not mean there is a basis for discrimination in sentencing process.  However, as I also said and was reported in R v Fuller-Cust [2002] VSCA 168, to ignore factors personal to an applicant and to his history to which he, being an Aboriginal was a factor, and to ignore the impact of that on one's growth as a child would indeed offend principles relating to individual sentencing, which apply to all offenders.

25I said earlier that I was, and as I expressed in my sentence impressed with Mr Marshall, the way he, despite that background, went about his life.  The way he has played sport, the way he has raised a family.  As I also said, I have not been impressed with his flights of violence.

26Having given the matter further consideration, I think there is merit in the proposition put today by Mr Pearson that rather than order Mr Marshall to serve a sentence of six months, that I make an order under s.83AR(1)(c) of the Act, and in fact extend this order, that is a suspended sentence which was previously of three years, suspend that sentence of 18 months for a further period of 12 months from today's date.

27The purpose of doing that is to see indeed in that period if in fact Mr Marshall lives in the manner that he tells the Court that he intends to.  It should go without saying, Mr Marshall, that there will not be any further occasion you come back in front of me, having breached it in that time.  You understand?

28OFFENDER:  I do.

29HIS HONOUR:  The next time it will be 18 months, not six, all right?

30OFFENDER:  Yes.

31HIS HONOUR:  I do intend to make that order.  Can I say I am hopeful that I will not see you.  All right?  I do not want to see you because I want you to live the life that you can, I am sure.  All right.  So I will make that order.  I will extend the order, Mr Prosecutor, for a period of 12 months on the same terms and conditions as was previously set. Insofar as s.83AB of the Act, I will convict and discharge I think would be the easiest way. 

32MR ATKINSON:  That's the easiest way, Your Honour, yes.

33HIS HONOUR:  The legislation provides for a sentence of imprisonment of three months but it would be a lacuna if I was required, having made that decision, to then impose a sentence of imprisonment.  So I will simply convict and discharge, do you accept that.

34MR ATKINSON:  I certainly do, sir, yes.

35HIS HONOUR:  Thank you, Mr Prosecutor.  In the circumstances it only remains for me to say good luck, all right?  Thank you, Mr Pearson,

36MR PEARSON:  Thank you, Your Honour.

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