Director of Public Prosecutions v Marshall

[2014] VCC 1529

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

AT WODONGA
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT MARSHALL

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Wodonga
DATE OF HEARING:	11 September 2014
DATE OF SENTENCE:	11 September 2014
CASE MAY BE CITED AS:	DPP v Marshall
MEDIUM NEUTRAL CITATION:	[2014] VCC 1529

REASONS FOR SENTENCE
---

Subject: Criminal law – sentence
Catchwords:  Pleaded guilty – one charge recklessly cause injury; one charge make threat to kill; one charge unlawful imprisonment.  Long term  relationship – no criminal history – unlikely to reoffend; excellent character references
Sentence:  With conviction Community Corrections Order 100 hours unpaid community work

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	OPP
For the Accused	Mr A. Marshall	Mario Vaccaro

HER HONOUR: 

1Scott David Marshall, you have pleaded guilty to one charge of recklessly causing injury, one charge of unlawful imprisonment and one charge of making a threat to kill.

2The first charge is a rolled up charge, covering the sustained attack you perpetrated upon the complainant.  The violence occurred when you were drunk following an evening at a local hotel with your family, on the night of 30 and 31 March 2013, which was Easter Saturday and Sunday.

3You and the complainant had been married for only three weeks.  You had known each other for ten years, having had a brief relationship initially, which resumed about two years before this incident.  You lived together with three of the complainant's four children, and over Easter, your own two children were also staying in the house.

4At about 11 pm that night, you had an argument with a man in the hotel and the complainant left the hotel to go home, taking her adult daughter and your 11 year old daughter with her.  They and the other four young boys all went to bed.  You arrived home at about 11.30 and entered the bedroom where the complainant was in bed.  You were in a rage and you attacked her by pinning her wrists to the bed and forcing your knee into the area of her pubic bone, causing her pain and ignoring her calls to stop and to get off her.  She scratched your face, causing minor bleeding, which was visible for days afterwards.

5You struggled on the floor as she tried to get away and you kept pushing her down saying, "Get on the floor like the dog that you are."  You then, again, pinned her to the bed by pushing on her arms.  She tried to escape but you threatened to slit her throat.  You went to sleep and the complainant went to the kitchen, and took a knife back to the bedroom for protection.

6Some of the children heard parts of the incident from their bedrooms.  Two of the complainant's sons, who were aged 15 and 14 at the time, have provided victim impact statements, indicating that the experience has caused them stress, anger, sleeplessness and lack of concentration.  One of the boys feels guilty because he did not protect his mother.  The other boy is having ongoing counselling because he does not want to cause further stress to his mother by talking to her about it.

7It is sad to hear the children have been affected in this way.  It is one of the consequences of violence in the home, that has the potential to cause great harm.  Hopefully the children will gain resilience from the family support they receive, and the harm will be minimised with the effects reducing in impact over time.

8The complainant herself was already receiving medical treatment by way of prescribed medication before the attack, and since then, she has required increased dosages and additional medication.  She suffered swelling and bruising to many parts of her body, consistent with the way you attacked her.  She continues to have professional counselling and suffers greatly from stress and insecurity.  She is a hard-working woman who now has had to take several weeks sick leave.

9The complainant's adult daughter has taken on a strong supportive role for her mother and her three younger brothers, but feels she has been unable to do enough.  She suffers from considerable anxiety with serious consequences, and has had to take a lot of time away from her work.

10As to your personal background, you are a 41 year old man living alone in Wodonga, in close proximity to your former partner, the mother of your two children, who spend alternate weekends with you.  You have no criminal history and an impressive employment record, beginning with your apprenticeship as a butcher, which you completed after leaving school.  You worked briefly at Coles and then joined the army, serving for five years, which included ten months in East Timor.

11Your certificate of service shows you were awarded three medals under the Australian system of honours and awards, and your discharge letter indicates the gratitude of the army for your service.  A large number of references attest to your good character and sound work ethic, as well as your reputation as a committed soldier.  Your senior officer referred to your, "…numerous deployments overseas in East Timor and Afghanistan in varying roles as a leading scout within the section to being in charge of communication detachments within the battalion."

12It is regrettable that a man capable of such achievements in the public sphere could not maintain those high standards of behaviour in a private setting.  Your actions towards your wife were nothing short of deplorable, and should cause you great shame.

13Your plea of guilty, even at the late stage it was entered, is an indication of remorse, and importantly it has avoided the need for a trial in which the complainant and the children would have had to have given evidence and be subjected to cross-examination.  For those reasons, you are entitled to a discount on your sentence.

14Unfortunately, violence against female partners is very common, and the community rightly expects punishment to be appropriately severe.  The need for general deterrence, that is the need for others to be deterred, is one of the principal objectives of punishment in cases such as this.  One of the other important objectives is specific deterrence, that is the need for the punishment to deter the offender from offending again.

15You have no record of prior offending, and the complainant had not experienced violence at your hands before.  Your character, in every other respect, suggests that you are very unlikely to offend in this way again, and so there is a much reduced need for specific deterrence.  That leaves the way open for punishment that does not require imprisonment, although a gaol term is well within the range of suitable dispositions.

16The learned prosecutor submitted that it is only by reason of your extremely impressive record, that a punishment which avoids prison might be available to you.  I agree with that approach to this sentence.  As you know, you have been assessed as suitable for a community corrections order, which is regarded as a suitable punishment for serious offending, as this is, in circumstances where prison is not otherwise warranted.

17I note that the maximum penalty for recklessly causing injury is five years' imprisonment, and for each of unlawful imprisonment and making a threat to kill, ten years.  Would you stand now please, Mr Marshall.

18Although these are serious charges attracting substantial prison sentences as you just heard, I have reached the view that a community corrections order will meet all the required objectives of sentencing in this case.  In particular, it will provide a program or programs which will assist with your rehabilitation, both as to alcohol consumption and towards the reduction of the risk of reoffending, by means of the Men's Behaviour Change Program.  I note that the assessing officer recommended that you participate in the Specialist Offender and Treatment Service, formerly known as the Sex Offender Program, but given the charges, my view is that is not justified.

19You were charged with sexual offences, but following negotiations they were not included  in the indictment to which you pleaded guilty.  The violence you used does not, of itself, warrant your engagement in a sex offender or other similar program and I am satisfied that the programs you will be required to be engaged in will be adequate to attend to your rehabilitation.

20The conditions of the order will be that it begins today and will last for two years.  You must perform 100 hours of unpaid community work over six months and you must take part in the programs I have mentioned.  You must attend the Correctional Services Office at 5 Elgin Boulevard, Wodonga, by 4 pm on 15 September, which is on Monday.  Do agree to be bound by the conditions of the order, Mr Marshall?

21OFFENDER:  Yes, Your Honour.

22HER HONOUR:  If you had pleaded not guilty to these charges, I would have sentenced you to a term of imprisonment of three months for the charge of recklessly causing injury, and imposed a community corrections order for the other two charges.

23The prosecution seeks an order under s.464ZF of the Crimes Act for a forensic sample of saliva to be obtained, and through your counsel, you have consented to that.  I must advise you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.  Are there any other matters I have omitted, Mr Moore?

24MR MOORE:  No, Your Honour.

25HER HONOUR:  Thank you.  You will be asked to sign that order now.  Do you want to look at it Mr Marshall or are you content for it to go straight to your client?

26MR MARSHALL:  Perhaps I should mention, Your Honour, a matter which may be relevant, at the end of the record of interview, there is an indication that there was a sample taken and as I say, it may be more appropriate for retention.

27HER HONOUR:  That is often the case, but nonetheless, I am asked to make the order and I will do so.

28MR MARSHALL:  Yes, Your Honour.

29HER HONOUR:  That is completed now, thank you Mr Marshall.  You may step down  Mr Marshall, from the dock.

- - -