Director of Public Prosecutions v Marshall
[2015] VCC 476
•22 April 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-03300
CR 15-00155
CR 15-00162
CR 15 00208
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ROBERT MARSHALL DAVID OBEDA NORMAN STEWART |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 March 2015 |
| DATE OF SENTENCE: | 22 April 2015 |
| CASE MAY BE CITED AS: | DPP v Marshall |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 476 |
REASONS FOR SENTENCE
---Subject: Robbery, Affray.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. McWilliams | |
| For Accused Marshall | Mr A. Brand | |
| For Accused Obeda | Ms M. Walker | |
| For Accused Norman | Ms C. Dwyer |
HIS HONOUR:
1Norman Stewart, you have pleaded guilty to charges contained in two indictments. The first indictment contains a charge of robbery. That offence occurred on 27 August 2014. The maximum sentence for the crime of robbery is 15 years' imprisonment.
2On the second indictment you, Norman Stewart, and you, David Obeda, each pleaded guilty to one charge of affray and one charge of recklessly causing serious injury. Robert Marshall, you also pleaded guilty to the charge of affray.
3The maximum sentence for recklessly causing serious injury is 15 years' imprisonment. The maximum sentence for the offence of affray is five years' imprisonment.
4To the credit of each of you, you each pleaded guilty to the charges at the committal mention stage and the committal proceeded by straight hand-up brief. By your pleas each of you has saved the time and costs of committal and trial. In your case, Stewart, you have saved the time and costs of two committals and trials.
5In passing sentence on each of you I treat each of you as having pleaded guilty at the earliest available opportunity. For that each of you is entitled to a lesser sentence than what you could have expected had you each fallen for sentence after a trial and this is reflected in the sentences that I will shortly pass.
6Further, in the case of each of you, I regard your pleas of guilty as an indication of genuine remorse for your offending.
7The circumstances of the offending of each of you is set out in a prosecution summary that was tendered in evidence as Exhibit A on the plea. The summary was read in open court by the prosecutor, Mr Holding. It was accepted by counsel for each of you as being accurate and as forming a proper basis upon which I can proceed to pass sentence upon each of you. It is not necessary that I here repeat what is there set out except in summary form.
8I deal first with your offending, Mr Stewart, that results in the robbery charge in the first indictment. You and two other unidentified men followed your victim into a housing commission high-rise in Richmond. The victim was alone and defenceless. At the time of the offending the victim was on a disability pension following treatment and surgery for a brain tumour. He was in a weakened state of health. In the eyes of the law you take your victim as you find him.
9You followed him to the 12th floor where you and the others with you assaulted the victim by punching blows to his face, around his eyes and nose. The victim lost consciousness. You and the others then removed some of his clothing and stole his wallet containing about $300 and his mobile phone. The victim was left semi naked and unconscious. He was taken to St Vincent’s hospital for treatment. He had swelling to the face around his left eye which was almost shut by swelling and he received a broken nose and bruising to his face, shoulders and back. A photograph of the victim depicting the facial swelling was admitted into evidence as Exhibit B.
10Your offending, Stewart, in the robbery charge was a very serious example of a very serious offence, aggravated as it was by the violence imparted by you and others to a defenceless man that enabled the robbery to be carried out.
11I turn to the offending that results in the charges of affray and recklessly causing serious injury contained in the second indictment.
12The scene for these crimes was a very public place. The KFC outlet in Swanston Street in the city at 3.40am. The victim, who had been out with a friend, called in to the KFC for a snack. There he was confronted first by you, Stewart. For no apparent reason you struck him to the head. When he stood up to try to defend himself you, Obeda, joined in what is described in the summary as a brawl and it is depicted on CCTV footage taken by different cameras from different angles. During the course of the brawl that followed, each of you, Stewart, and you, Obeda, assaulted your victim by punching and kicking his head and upper body and leg regions. The victim was knocked to the ground where he was further assaulted by multiple kicks and punches.
13You Marshall joined in the brawl later. The victim was seriously injured but it was possible the victim was injured before you joined in. It is for this reason you have not been charged with recklessly causing injury. The fact you joined the brawl late and probably did not by your actions cause any injury to the victim is a clear distinction between your involvement in the affray now charged from the conduct of you, Stewart, and you. Obeda. Each of you is charged on the basis that you were engaged in a joint criminal enterprise.
14The victim of this brawl suffered serious injuries. He was taken to the Royal Melbourne Hospital suffering a broken left leg which required surgery and the insertion of a metal rod and screws, a broken left ankle, severe bruising and swelling to the face and loose teeth. He remained an in-patient at the Royal Melbourne Hospital for 14 days and then he spent a further six days at the Royal Park Rehabilitation Hospital. This was followed by a further four weeks of inability to bear weight and so the victim was confined to bed at his home. He was off work for seven weeks. He will require further surgery for removal of the metal rod and screws and this will require further time to recuperate and time off work for him.
15The prosecution tendered a Victim Impact Statement which was not read in open court but the statement was served on the legal representatives of you, Stewart, and you, Obeda. The statement makes compelling reading and shows the telling effects that offending of this kind can have upon the victim of a serious injury. Here the victim was affected physically, psychologically and financially. His family also suffered in direct consequence of the actions of each of you, Stewart and Obeda.
16Affray is a prevalent and serious offence and this offending was a serious example of it. Recklessly causing injury is also a prevalent and serious offence. It can often occur in the context of affray (as here) and again the offending of you, Stewart, and you, Obeda, in committing this offence is very serious. This is particularly so when one considers the consequences of your actions for your victim which I have endeavoured to set out above.
17Each of you has a number of relevant prior convictions.
18You, Stewart, are 28 years of age. You have a large number of prior convictions for crimes involving violence from 14 court appearances dating from 16 January 2004. You have prior convictions for robbery and armed robbery and also for recklessly causing serious injury and injury. You have received a number of custodial dispositions and over a number of years you have also received the benefit of non-custodial dispositions. The offending for which I must now sentence you occurred within a short time of you having been released from a term of imprisonment imposed on 18 March 2013 for intentionally causing injury. Clearly, any sentence in relation to your offending must have regard to specific deterrence in order to try to deter you from further offending.
19You, Obeda, are aged 22 years of age. You are a youthful offender with a significant criminal history. You have prior convictions for robbery, assault police and intentionally causing injury from seven court appearances dating from December 2009. Your criminal record differs from that of Mr Stewart in that you have fewer prior convictions for offences involving violence. Many of your prior convictions involve dishonesty and motor vehicle offending. The offending for which I now must sentence you occurred within a short time of you having been released in August 2014 after serving a sentence of
18 months' imprisonment for two charges of robbery and a charge of assault police. Clearly any sentence in relation to your offending must also have regard to specific deterrence in order to try to deter you from further offending.20You, Marshall, are aged 21. You are a young offender also with a significant criminal history from 13 court appearances dating from September 2007. A number of your prior convictions involve acts of violence either intentional or reckless. A large number of your prior convictions, including one for affray, are from the Children's Court. I was told by your counsel, Mr Brand, you are presently in custody on remand on a charge of murder.
21I turn to deal with the background circumstances of each of you which are remarkably similar in some ways. A common feature is a dysfunctional family history. The evidence shows each of you, through circumstances beyond the control of each of you, was deprived of a caring and supportive family and each of you has had what would appear to be only a rudimentary education. Each of you left home at an early age and was left to fend for yourself and each has a history of substance abuse of one kind or another.
22In your case, Stewart, I admitted into evidence the psychological report of
Dr Aaron Cunningham who saw you in custody on 24 March 2015 for the purpose of preparing his report. He carried out various cognitive tests which showed you have an overall IQ of 70 placing you in the bottom 2% of males your age. Dr Cunningham described your thinking and reasoning abilities as being in “the extremely low to borderline range of functioning”. I accept that opinion which was not in dispute.23You told Dr Cunningham and I also accept that your offending occurred during a period of methylamphetamine abuse and that the offending was motivated by your belief (albeit mistaken) that your victims had drugs which you wanted to obtain.
24Ms Dwyer, who appeared as counsel on your behalf, conceded that your offending was serious and that a term of imprisonment was an appropriate disposition for the three offences you pleaded guilty to. She directed her submissions to the issue of totality or duration of any sentence imposed.
25In a helpful written outline of submissions, which I marked as Exhibit S-1 on the plea, Ms Dwyer went through your background. You are Maori and were born in New Zealand. You have had a fractured family life and upbringing. Your parents separated when you were young. Both were alcoholic and you were exposed to domestic violence. You were sexually abused at a young age and your behaviour deteriorated. At age 12 you were sent to live in Melbourne with your father who had re-partnered. You felt culturally displaced and began running away from home soon after. You left school in year 8 and have had limited employment ever since. Dr Cunningham opined you suffer depression and you told him you have been suicidal in the past. Over a number of years you have engaged in significant substance abuse including chroming and alcohol abuse.
26Ms Dwyer submitted that because of your extremely low to borderline range of cognitive functioning and the consequence from this that you have difficulty controlling anger, depression and anxiety that your moral culpability for your offending should be reduced. I do not accept that submission. You committed these offences whilst drug affected. Doubtless that played a role in your committing these offences and helps to explain why the offending occurred but it does not excuse it.
27Ms Dwyer also submitted that your depressive disorder is likely to make your time in custody weigh more heavily on you than on a prisoner in normal health. There is no evidence to support that submission and I reject it, although I have taken your overall psychological, cognitive and emotional state into account in arriving at an appropriate overall sentence and in fixing a non-parole period.
28Dr Cunningham reported that you would benefit from Case management from Disability Services on release and with assistance in gaining accommodation and employment. He also reported that engagement with treatment and support services would reduce the risk of you re-offending. Again that is probably the case. These are matters that the Parole Board should have regard to on your release from custody. Unfortunately there is no evidence before me that Disability Services will offer the services that you need. On the evidence I have at present, unless some positive steps are taken by someone, your chances of a meaningful rehabilitation must be regarded as poor. In arriving at an appropriate total sentence and non-parole period sentence I have had regard to ensuring as best I can that you do not become institutionalised to prison and this is reflected in the sentence that I will shortly pass. Your counsel submitted there should be total concurrency of the sentence imposed on the charge of recklessly causing serious injury with the sentence imposed on the charge of affray. I accept that submission and this is reflected in the sentences I shall shortly impose on you, Mr Stewart, and on you, Mr Obeda.
29I turn to your background circumstances Mr Obeda. Ms Walker provided a helpful written outline of submissions on your behalf, which I marked as Exhibit O-1 on the plea. Ms Walker also relied upon a psychological assessment of you carried out by psychologist Gina Cidoni, which I marked as Exhibit O-2. Ms Cidoni assessed you in a custodial setting over some three hours on 18 March 2015. You told Ms Cidoni and I accept that prior to your offending you had used the drug known as ICE. You also told her you saw the fight happening in the KFC outlet and you participated to “help my mates”. As I have noted this offending that involved you occurred a few weeks after your release from prison.
30You were also born in New Zealand of Cook Islander descent. Your parents separated a short time after your birth. Your mother came to Australia but you remained with your father. When you were aged ten your father was gaoled for the crime of murder. He was sentenced to 20 years' imprisonment. You then came to Australia aged ten in 2000 and lived with your mother in Dandenong. She was living in a relationship with a man said to have been violent and he did not want you in the house. One of your two brothers was murdered in your home backyard in New Zealand when you were aged seven and you apparently witnessed this.
31You left the home of your mother in Dandenong when aged around 13 and lived on the streets and in abandoned houses. At times you also lived with an aunt and cousins in the Dandenong area. You still maintain regular contact with your mother by telephone.
32You first used cannabis aged eight and used this drug daily aged 13 to 18. You have been using amphetamines and methamphetamines from the age of 16. You are now 22 years of age. You have attended drug and alcohol courses whilst incarcerated in a Youth Justice Centre. According to what you told Ms Cidoni you had determined to remain drug free when released from prison in August last year but you lapsed back into drug use because of peer pressure soon after release. You have had a minimal education and little employment.
33You have borderline intellectual ability with a full IQ of 79. Testing by
Ms Cidoni in her opinion revealed you suffer disturbed and distressed personality function with elevation of scales of depression, anxiety and signs of post-traumatic stress disorder linked to the trauma in your childhood of witnessing your brother’s murder and your mother leaving you with your father. Ms Cidoni reported that you meet the criteria for Stimulant Use Disorder and you require drug treatment before and when released back into the community. You will also require counselling for your depressed mood and post-traumatic stress disorder.34It is clear to me that you have had a deprived childhood and upbringing which led you into drug abuse. Your offending here is explained by, but not excused by, your drug use.
35During the course of the plea Ms Walker conceded (appropriately in my view) that your offending here was serious requiring a disposition in the form of a term of imprisonment.
36I turn to you, Mr Marshall. I accept your role in the affray was limited to providing support to the others involved at a time after the victim had been injured. For that the sentence I will impose on you on the one charge you face will be one half of that imposed on Mr Stewart and Mr Obeda.
37Mr Brand also provided a helpful written outline of submissions, which I marked as Exhibit M-1. He also provided a discharge summary from the Monash Health, which I marked as Exhibit M-2 on the plea. The relevance of this report is that less than one month before this offending and between
6 August 2014 and 12 August 2014 you were admitted as an involuntary patient at the Monash Mental Health after you were seen walking erratically along the roadway. You were apparently delusional and hallucinating receiving commands to harm others. You were medicated and released on appropriate medication. You told the doctors you first experienced these symptoms whilst in juvenile justice at which time you were medicated. According to the report from Monash Mental Health your symptoms before you were medicated were precipitated by amphetamine use. I was told and accept you have a history of psychiatric intervention.38You were last reviewed at Monash Mental Health on 18 November 2014, after this offending, at which time you presented as settled and no evidence of thought disorder was elicited. The following day you were arrested and charged with the murder and you have been on remand since that time.
39You are a young offender. You are single with no children. You too grew up in a family where there was violence and a violent atmosphere and where there was significant consumption of alcohol. You have little education and have been abusing alcohol since age 14 and have a history of poly drug abuse (ICE, amphetamine, cannabis and ecstasy). At the time of your arrest you were on the prescription drug olanzapine. Also at that time you were living with your parents and three siblings.
40I have viewed the CCTV footage of the affray which shows your role was limited. I have taken that into account.
41Mr Brand submitted that a fine was an appropriate disposition in your case. I do not agree that is an appropriate disposition having regard to the seriousness of the affray, especially having regard to your past criminal history. Also I think a fine in the circumstances is not appropriate because you could not afford to pay it. However the sentence I will impose has been for the large part served by the pre-sentence detention of 149 days. I regard your chances of rehabilitation as being poor.
42The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing I must have regard to a number of matters such as the seriousness of the offending behaviour, your culpability for it, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure as far as possible offenders are rehabilitated into society.
43In sentencing each of you I have I believe appropriately balanced these matters.
44Dealing firstly with you, Mr Stewart.
45On the charge of robbery you are convicted and sentenced to a term of imprisonment of five (5) years.
46On the charge of affray you are convicted and sentenced to a term of imprisonment of one (1) year.
47On the charge of recklessly causing serious injury you are convicted and sentenced to a term of imprisonment of four (4) years.
48I direct that the sentence imposed on the charge in indictment E13066293, namely, robbery, be the base sentence and, that two years of the sentence imposed on Charge 2 in indictment E13066260, namely, recklessly causing serious injury cumulate upon that sentence making a total overall sentence of seven (7) years' imprisonment.
49I direct that you serve a minimum of four and half years' imprisonment before being eligible for release on parole.
50I direct that 223 days pre-sentence detention be reckoned as having been already served under the sentences passed this day and be deducted administratively.
51For the purposes of s. 6AAA of the Sentencing Act had it not been for your pleas of guilty to the charges at the earliest possible opportunity I would have imposed and overall sentence of imprisonment of nine (9) years and I would have directed that you serve a minimum of six (6) years' imprisonment before being eligible for release on parole.
52Dealing with you Mr Obeda.
53On the charge of affray you are convicted and sentenced to a term of imprisonment of one (1) year.
54On the charge of recklessly causing serious injury you are convicted and sentenced to a term of imprisonment of four (4) years.
55I direct that you serve a minimum of two years and eight months imprisonment before being eligible for release on parole.
56I direct that 149 days pre-sentence detention be reckoned as having been already served under the sentences passed this day and be deducted administratively.
57For the purposes of s. 6AAA of the Sentencing Act had it not been for your pleas of guilty to the charges at the earliest possible opportunity I would have imposed and overall sentence of imprisonment of six years and I would have directed that you serve a minimum of four years' imprisonment before being eligible for release on parole.
58Dealing with you, Mr Marshall, on the charge of affray you are convicted and sentenced to a term of imprisonment of six (6) months. I direct you serve a minimum of four months before being eligible for release on parole.
59I direct that 149 days pre-sentence detention be reckoned as having been already served under the sentence passed this day and be deducted administratively.
60For the purposes of s. 6AAA of the Sentencing Act had it not been for your plea of guilty to the charge at the earliest possible opportunity I would have imposed and overall sentence of imprisonment of nine months and I would have directed that you serve a minimum of six months' imprisonment before being eligible for release on parole.
61I have been asked to sign some forfeiture orders which have not been opposed and which I have done. In the case of you, Mr Obeda, I have made an order that a forensic sample be taken from you by a member of the police force, the effect of which is that having signed the order a member of the police force may use reasonable force if necessary to take the sample from you.
62(Forfeiture orders signed and acknowledged.)
63(Section 464ZF order (Obeda) signed and acknowledged.)
64Is there some issue about the pre-sentence?
65MR BRAND: No, Your Honour. In relation to Mr Marshall, as I understand it you imposed six months' imprisonment.
66HIS HONOUR: And four months minimum.
67MR BRAND: Four months minimum and two months parole. You said parole and I think possibly you meant something else.
68HIS HONOUR: No, I said four months minimum before being eligible for release on parole.
69MR BRAND: I am not sure that you can do that, Your Honour. Under s.11(2).
70HIS HONOUR: Less than 12 months. Is it less than 12 months? It is.
71MR BRAND: Yes.
72HIS HONOUR: What does 11(2) say?
73MR BRAND: "If a court sentences an offender to be imprisoned in respect of an offence for a term of less than two years but not less than one year, the court may as part of the sentence fix a period during which the offender was not eligible to be released on parole."
74HIS HONOUR: May. I did.
75MR BRAND: But it is less than one year, Your Honour, it is six months. The following section - - -
76HIS HONOUR: Just a sec.
77MR BRAND: Sorry, Your Honour. Sit down, gentlemen, if you would, thank you.
78HIS HONOUR: Which section is it?
79MR BRAND: Section 11(2), Your Honour.
80HIS HONOUR: For a term of imprisonment less than 12 months, there should be no non-parole period fixed.
81The order will be that the prisoner is sentenced to a term of imprisonment of six months. The s.6AAA declaration, or the statement for the purposes of s.6AAA will simply read that I would have imposed a term of imprisonment of 12 months.
82
MR BRAND: Your Honour, I am not sure if I got a declaration on
pre-sentence detention.
83HIS HONOUR: Yes, 149 days.
84MR BRAND: Thank you, Your Honour. I was just getting a bit distracted before.
85HIS HONOUR: No, I definitely did that. Is there some issue about the calculation in respect of Mr Stewart?
86MR McWILLIAMS: There is, Your Honour. The calculations, as my instructor and I believe, perhaps even defence counsel, are that the appropriate declaration is 222 days up to but not including today. Your Honour has declared 223.
87HIS HONOUR: I was given these numbers at some point. I am just not quite sure, is it agreed it is 222, not - - -
88MS DWYER: Yes.
89HIS HONOUR: I am giving your client the benefit of an extra day. You are objecting to that?
90MS DWYER: No, Your Honour, it depends - in my submission it depends on how the order is recorded, and if the order is recorded 223 days including this day, then there is no error in the calculation.
91HIS HONOUR: Yes.
92MS DWYER: So as long as it's specified that it's including this day, in my submission there is no need to amend anything.
93HIS HONOUR: Yes. Just pardon me for a moment. I am just checking what the computer will say. We will leave it at 223 days.
94MS DWYER: As Your Honour pleases.
95HIS HONOUR: That is the safest way. Any matters arising, Ms Walker?
96MS WALKER: No, Your Honour.
97HIS HONOUR: Very well. Ms Dwyer?
98MS DWYER: No, Your Honour.
99HIS HONOUR: Any other matters, Mr McWilliams?
100MR McWILLIAMS: No, Your Honour, no.
101HIS HONOUR: Good. Remove the prisoners, please. Feel free to leave.
102COUNSEL: If Your Honour pleases.
103HIS HONOUR: Thank you.
- - -
0
0