Director of Public Prosecutions v Marshall and Edwards
[2012] VCC 896
•28 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01216
CR-11-00671
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARYL MARSHALL BEAU EDWARDS |
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JUDGE: | HIS HONOUR JUDGE MCINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 28 June 2012 | |
CASE MAY BE CITED AS: | DPP v. Marshall and Edwards | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 896 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. McLeod | |
| For the Accused Marshall For the Accused Edwards | Mr T. Fitzpatrick Ms J.V. Gleeson |
HIS HONOUR:
1 In this matter, Indictment no. C1007739, both Mr Edwards and Mr Marshall pleaded guilty to the counts in this Indictment.
2 Mr Jones appeared on behalf of the Director, as did Mr Hayward, Ms Gleeson appeared on behalf of Mr Edwards and Mr McLennan and Mr Fitzpatrick on behalf of Mr Marshall.
3 The matter was first before me in Bendigo on 19 April 2012 when each of the accused pleaded guilty to the Indictment.
4 Mr Edwards to Count 1 being one count of cause serious injury intentionally, an offence against s.16 of the Crimes Act. An indication of the seriousness of such offence is gained, objective seriousness at least, from the fact that Parliament has prescribed a maximum penalty of 20 years for such offence.
5 Mr Marshall pleaded guilty to Charge 2 on the Indictment being one of cause serious injury recklessly. In that instance such is an offence under s.17 of the Crimes Act and the maximum penalty prescribed by Parliament is one of 15 years.
6 Each of Mr Edwards and Mr Marshall pleaded guilty to Count 3 being a count of robbery, an offence under s.75 of the Crimes Act for which the maximum penalty described is one of 15 years.
7 The matter was adjourned for plea in Bendigo to 7 May 2012. On that day Mr Fitzpatrick appeared for Mr Marshall. Mr Fitzpatrick indicated that he would proceed on that day as far as he could with the plea, but wished to investigate some additional medical matters before sentence was pronounced.
8 Also on that day Ms Gleeson informed the Court that the court was being asked to consider an appeal insofar as Mr Edwards is concerned, that appeal related to a conviction for two offences under the Firearms Act when he was sentenced to five months gaol; two months to be immediate, three to be partially suspended for a period of 12 months. Respectively the charges related to a sawn-off shotgun and an antique pistol.
9 Mr Jones tendered, by consent of all counsel, Exhibit A which was the Prosecution Opening. The provocative action in regard to these crimes was that of the complainant, as one of eight males, who at 10.30 p.m. at night threw water filled balloons on to cars travelling along Strathfieldsaye Road. One could not think of a more dangerous thing to do. I do not accept Mr Jones’ description of this as a minor prank. Such activities at night, obviously are very dangerous, with the potential of causing grievous harm to motorists and death.
10 When their car was hit by this water filled balloon Marshall was driving, Mr Edwards was a passenger. Unfortunately they decided to take the law in their own hands, this is particularly so in regard to Mr Marshall.
11 Edwards knocked the complainant Mr Fremantle to the ground, whereby he hurt his shoulder. Mr Edwards then wrestled with Mr Fremantle and punched and kicked him. Those circumstances making up Charge 1.
12 Mr Marshall then assisted Mr Edwards and punched and kicked Mr Fremantle. Those circumstances making up Charge 2.
13 As part of the retribution or humiliation, if we want to use the term, Mr Fremantle was then stripped naked. As they were in the process of doing this his mobile phone fell out of his clothes. One of the accused, it is not sure whom, picked it up hence the charge of robbery making up Charge 3.
14 As I remarked during the plea to Mr Jones this is certainly not the strongest case of either Counts 1 or 2 involving serious injury or robbery. Clearly these pleas are particularly valuable. They are valuable because they save the community time and the complainant the indignity of having to go to trial, but they are valuable because the robbery charge itself was almost incidental. I think the term used was "an overblown robbery charge"; that is one of the elements, if this matter went to jury trial, to be proved was that force was used in order to steal the items. As I say I think any clothes that were taken and indeed the phone was incidental to the retribution being handed out to Mr Fremantle for the circumstances.
15 As to the injury one looks to Exhibit B, and that is the Victim Impact Statement of Mr Fremantle dated 4 August 2011. The hospital records indicate that Mr Fremantle was present at the hospital from when he was admitted at approximately 11 p.m. that night to when he was discharged at 4 a.m. the next morning. He had a sore jaw and a dislocated shoulder. X-rays were taken of the shoulder which demonstrated there was no fracture and indeed the dislocation was relocated through the expertise of the doctors at the hospital.
16 In the victim impact statement, that I have referred to, Mr Fremantle talks of the ongoing problems that he has when his shoulder pops out, that continues to restrict his sporting activities. However there was no up to date information in regard to this matter provided by the prosecution.
17 Insofar as the photographs, Exhibit C, are concerned they demonstrate the black eye and bruising and cut to the head that Mr Fremantle received. In particular see Photographs 1 to 7.
18 The learned prosecutor referred the Court to Mr Marshall's priors. In regard to the precise nature of those priors his counsel and indeed apparently Mr Marshall himself is imprecise as to the circumstances surrounding them. However it is clear that following an assault upon him in 2005, which I will talk of later, he decided to take it upon himself, apparently there being no action taken by legal authorities, to seek retribution against the person who had assaulted him, by hitting Mr Marshall with an implement to the head. That action resulted in the sentence of four months gaol imposed upon him in December 06.
19 He subsequently received a sentence for a further charge of recklessly cause injury in May 08 and he has priors for other assault matters none of which resulted in gaol sentences. Albeit that they go back some time, they are obviously matters that this Court must take into account. It is noticeable that in October 2001 he was sentenced for assault matters which he was given a Community Based Order, in particular with provisions insofar as alcohol treatment is concerned.
20 Again in 1998 he was given an Intensive Correction Order for three months for an assault matter, and again in 1998 he had a recklessly cause serious injury for which he got a Community Based Order.
21 The prosecutor points out while not a prior Mr Marshall was subsequently convicted for a related domestic matter which occurred in fact the day before these offences, of which I am concerned. Those matters were heard before the Bendigo Magistrates' Court on 16 May 2011. It was a domestic situation in which he was charged with criminal damage and unlawful assault and fined the sum of $1000.
22 It is important for me to point out to Mr Marshall that you do not in our system get sentenced again because of your prior matters and nor can I take into account as a prior the subsequent matter. These matters are put to the Court because they limit the options that a court has where a person has priors.
23 It should be pointed out that in regard to Mr Edwards, Mr Edwards has no priors at all.
24 Insofar as the plea conducted by Mr Fitzpatrick on behalf of Mr Marshall he pointed to the background that he has had, the impact of the abusive upbringing that he had by way of the impact of alcohol and the impact and addiction to alcohol of his father and the abuse that used to happen within the home. His mother was Indigenous and it appears that his background was such that he had a considerable period of what is known as an abusive childhood.
25 As was pointed out by the Victorian Court of Appeal in R v. Fuller‑Cust 2002 6 V.R. 496, sentencing principles are the same for all Victorians and race is not a basis for discrimination in the sentencing process. However 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 on one's growth as a child would indeed offend principles relating to individual sentencing which apply to all offenders.
26 Equal treatment of offenders means of course that differences in their individual circumstances related to their race cannot be ignored. The relevance of Aboriginality of an offender is not necessarily to mitigate punishment, but rather to explain or throw light on a particular offence and the circumstances relevant to the particular offender.
27 Mr Fitzpatrick in his submissions on behalf of Mr Marshall did not gainsay his history. Although, as he pointed out, the first time he ever got gaol was the assault in January 2006 which was the retribution for the serious assault committed upon him.
28 Given his background, to which I have already referred, Mr Fitzpatrick referred in particular to his excellent work record, his excellent sporting record and his stable family situation. He had a long term relationship for a period of 16 years which in fact began when he was about 16. This relationship ended at approximately the age of 31 and begat two children and indeed the issues surrounding that break up were the domestic matters that I have already referred to.
29 Insofar as his regard in the community, tendered on his behalf were the three references which spoke positively of the manner in which he has handled his life and his contribution to the community. They are in particular the social worker and friend Nataly Holahan, the counsellor Pauline Fennell in a report dated 16 April 2012 and the undated letter of Mr Graham Abbott.
30 As I have indicated this matter was adjourned to Melbourne where the subsequent Exhibits M2 through to M6 were tendered. For the purpose of these sentencing remarks they were the medical report of Dr Barrett of 14 June 2012, Exhibit M3 was the medical report of Dr Cleeve relating to an MRI taken on 9 January 2006, another MRI made up Exhibit M4, M5 was a report again of Dr Barrett and M6 was the forensic psychiatric report of Dr Anthony Cidoni obtained by Mr Fitzpatrick's instructors for the purpose of this plea and such report being dated 7 June 2012.
31 What Exhibits M2 through to M5 clearly show is confirmation of the cerebral injury which occurred to Mr Marshall in February 2007. In that regard I refer in particular to Dr Barrett's report at Exhibit M5. In that report he notes the significant injury for which there has not been any particular medical or other assistance. That occurred as a result of an assault outside a hotel on 7 January 2006. The scans showed haemorrhaging, that is bleeding of the brain tissue, to both frontal regions. Subsequent to that time he had particular issues as to memory and temperament and a neuropsychological report was called for. That report has never unfortunately been obtained.
32 However, as I have said, Mr Fitzpatrick tendered on behalf of Mr Marshall the psychiatrist report from Dr Anthony Cidoni, such report dated 7 June 2002. Dr Anthony Cidoni being a consultant psychiatrist practising in forensic and adult psychiatry.
33 While it is clear and this is not, nor was it put by Mr Fitzpatrick, a Verdins situation insofar as there is not the necessary connection and causal relationship between his condition and these crimes. It is important to note that this past history, as Mr Cidoni notes at p.2, there was memory impairment following a head injury on 7 January and the haemorrhage to which I have referred. Thereafter there was depression and depressed mood and he was required to give up what had previously been an excellent skill by way of football. He also at about the time of the domestic break up in 2008 suffering from depression.
34 Albeit that he has had issues with intoxication in the past, unlike Mr Edwards, Mr Marshall was not overly affected on this particular night.
35 Dr Cidoni confirmed that Mr Marshall suffers from an acquired brain injury and also suffers from major depressive disorder. He has suffered from post‑traumatic symptoms in regard to such, and has had some issues with alcohol abuse in the past. In particular where he has used such as self medication for his depression. As was the view of Dr Barrett, Mr Cidoni was of the view that Mr Marshall would benefit from neuropsychological testing.
36 Insofar as Element 5 or Principal 5 of Verdins Mr Fitzpatrick particularly relied upon the comments of Dr Cidoni in Paragraph 5 on p.4 of the report. These were:
"I am very concerned about Mr Marshall being incarcerated. I do not believe he will be able to cope and I believe it highly likely that his mental state will deteriorate with the escalation in his anxiety, worsening of his depression to potential suicide ideation."
He noted that it would be important for him to be placed on antidepressant medication and receive psychological input. Clearly in Mr Marshall's future interest it is very important that this be followed up with the local general practitioner.
37 Following such submission I was asked to obtain a Community Corrections assessment report. Insofar as that was concerned he was assessed as being suitable for a Community Corrections Order. It is noted that similar comments to which I have already referred were noted, that is that treatment is required by way of mental health for his acquired brain injury and depression he was deemed to be suitable, and consented to enter into such an order.
38 What was essentially put by Mr Fitzpatrick was that I consider in the circumstances a suspended sentence in regard to the more serious charge of which Mr Marshall faces, that was Charge 2, and that a Community Corrections Order could be given insofar as the robbery matter so that you had a cocktail of a suspended sentence with a Community Correction Order so that the issues could all be attended to.
39 Mr Hayward, when the matter was mentioned last in Melbourne, submitted to the Court that given the history, at least on one occasion where revenge was the motivation for the assault which had previously landed Mr Marshall in gaol, and his history that an aggregate sentence for both, which would be required to be less than three years in order to found a suspended sentence, would not be appropriate in these circumstances.
40 I have closely considered that submission and have taken the view that I do not accept it.
41 There are a number of reasons why I have taken that view. Firstly, there has been a significant delay in this matter. It is noted that these offences took place in September 2010. The agreement to plead guilty to these counts was entered into on 5 December 2011. As I have indicated Mr Marshall, despite his upbringing and the abuse that he encountered, has shown particularly impressive traits both by way of employment, stability of his own family organisation and his contributions, in particular by way of sport, to the community.
42 The circumstances surrounding these crimes seem to me to bring with them significant provocation. Albeit that one can never justify serious assaults of this type, the fact is that the behaviour of the complainant and his friends on this day were quite outrageous.
43 Also, as I have said, both in regard to the plea to the charge of recklessly causing serious injury, because of the extent of the injury involved and the incidental robbery, both are very valuable pleas and had the matter gone to trial would have involved interesting considerations by a jury. I find therefore that these pleas are not only valuable, but utilitarian.
44 Mr Marshall has also been subject to, as is ascribed, throughout his life since the assault considerable cerebral damage and psychological issues associated thereto.
45 I do however accept the submission of the learned prosecutor that the proposition put by Mr Fitzpatrick that a sentence involving only three months immediate imprisonment would not be appropriate, nor would it sufficiently mark the seriousness of these offences.
46 On Count 2, Mr Marshall, you will be sentenced to a period of imprisonment of 18 months.
47 I order that that period of imprisonment pursuant to the provisions of s.27 of the Sentencing Act be wholly suspended and such suspension shall operate for a period of three years.
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 would have to serve that whole 18 months.
49 Given your obligations to your own family and given your background, your excellent employment record I would expect you to effect total rehabilitation and for you not to again be involved in crime, but I want to make it very clear to you if you ever are involved again in activity such as this you will almost certainly serve those 18 months. Do you understand that?
50 PRISONER MARSHALL: Yes.
51 HIS HONOUR: Mr Fitzpatrick, given the circumstances it seems to me that you should seek specific instructions that your client is prepared to enter into such a suspended sentence.
52 MR FITZPATRICK: Yes, sir.
53 HIS HONOUR: And understands the provisions.
54 MR FITZPATRICK: Yes, Your Honour. May I be excused from the Bar table?
55 HIS HONOUR: Yes.
56 MR FITZPATRICK: Thank you, Your Honour. Your Honour, my instructions are that my client is willing to engage in such a course.
57 HIS HONOUR: Mr Fitzpatrick, I would ask you to point out to your client after this hearing that a lenient sentence today should not be misunderstood. There are particular circumstances that I have referred to which have led to that. Should he however be involved in other similar circumstances in the future you want to make it very clear what the future will be.
58 MR FITZPATRICK: Yes, Your Honour, I have pointed that out.
59 HIS HONOUR: Thank you. Finally, Mr Marshall, on Count 3 I impose a fine of $500 and give you a stay of six months in regard to that.
60 I have set the period under s.27 to be a period of three years and insofar as the provisions of s.6AAA of the Sentencing Act as far as I can comply all the circumstances with that all I wish to say is certainly had you not pleaded guilty to both these matters you would have not received a suspended sentence. You can take a seat, Mr Marshall.
61 Coming then to Mr Edwards. Firstly, I want to thank Ms Gleeson for her written submission, that will be marked as Exhibit E4.
62 Not only is there a substantial difference between the accused being that Mr Edwards has no priors whatsoever, but of course he is a much younger man. At the time of these offences he was 23 and he is now 25. He has, as I have remarked, no priors whatsoever. He equally made an early plea, the matter was settled in November of last year and no committal was required.
63 There were strong character references tendered on his behalf, in particular I refer to Exhibit E1. They are by way of the reference from his employer Mr Bibbi; the reference from Jennifer Marriott, family friend; and Mr James Anderson, his former mine manager. Strong and committed references indicating a person of strong character who has previously not got into any trouble, who has an excellent employment record, who has been able to skill himself with all the relevant certificates required to perform the valued task of mining in our community.
64 Unfortunately by some quirk, despite these legal proceedings not having been completed, his employer took it upon himself, having read of him being charged, to dismiss him from his employment. I cannot quite understand how that happened, nor why. Mr Edwards was placed on Centrelink payments as a result since January of this year.
65 I would have thought all employers in our community should await the outcome of matters before a Court before taking their own salutary action. I cannot quite understand why he lost his employment in these circumstances, but suffice to say he has, and that employment which has almost been continual throughout his life was bought to an end as a result of the reporting of these charges.
66 Again I have already referred to the provocative circumstances as a background to this matter. I do not, and I want to make it clear, and I think I have already said it, in any way accept that albeit provocative such is any excuse for your behaviour, however it provides an explanation as to why a person with your background, with no priors whatsoever, would suddenly find himself executing retribution, if I use those terms, upon someone. Clearly, in your case, one of the reasons as well is that you had been drinking to excess that night with your football friends.
67 I have no doubt on the matters put to me by Ms Gleeson that you are an excellent candidate for rehabilitation. You have strong family support; both your immediate family and your partner and obligations in that regard and such obligations are about to increase.
68 Mr Jones submitted that he had instructions that your penalty should include an immediate period of imprisonment. As I said to Mr Jones in Bendigo, given all the circumstances and in particular your background, that seemed somewhat harsh. Mr Jones did not argue with that proposition, except to say they were his instructions.
69 That is not to say that your sentencing is an easy process. It seems to me that you appear, again perhaps due to the effect of alcohol, to have been the main perpetrator of these assaults on this night. Principles of general deterrence whereby persons effect retribution and take the law into their own hands are very important as is specific deterrence.
70 Ms Gleeson submitted that a suspended sentence should be passed. In the circumstances, given the date of this offence, technically it is still possible to pass a suspended sentence in regard to your charge. I point out that because you are charged with a count of cause serious injury intentionally the legislation, as it then was, did allow for a suspended sentence however because it was deemed to be a serious offence a Court could not impose a suspended sentence unless exceptional circumstances apply. In my view those circumstances do not apply in this case.
71 When we were in Bendigo it was sought that a Community Correction assessment be provided and that was obtained and indeed is Exhibit E3. That report found you suitable for a Community Correction Order. You indicated a written consent to such order. There was a suggestion that appropriate treatment and rehabilitation to reduce the risk of reoffending be implemented and that you were suitable for a Community Correction Order.
72 It was also because of your own personal health issues noted that the Community Corrections Service were of the opinion that unpaid community work would be unsuitable in your case because of the issue of seizures.
73 Also the Court was required to take into account an appeal in regard to your matter and perhaps I will come to that separately.
74 Insofar as the major offences in this matter, of which you are concerned, perhaps if you would stand please, Mr Edwards, you will be convicted in regard to both Count 1, that is cause serious injury intentionally, and in regard to Count 3 of robbery.
75 The comments about your plea, its value and the particular circumstances and the explanation for those matters that I have referred to in regard to Mr Marshall equally apply in this matter.
76 I have determined that for both of these charges, that is Charges 1 and 3, as far as you are concerned a Community Correction Order should be imposed. Pursuant to the provisions of s.41 of the Sentencing Act a Community Correction Order can be imposed for both matters at the same time.
77 The Community Correction Order will commence today. The period involved will be a period of two years and the conditions imposed will be those recommended and they are the treatment and rehabilitation in regard to alcohol, treatment and rehabilitation in regard to medical matters and treatment and rehabilitation as to programs to reduce reoffending.
78 I accept in the circumstances the recommendation given your health that an order not be made as to unpaid community work.
79 That leaves the appeal to be dealt with. The photo in regard to the shotgun in this matter found at your premises should be tendered and that should be tendered as Exhibit E5. This matter, when it was dealt with in the Magistrates' Court, was obviously seen to be serious and indeed one only has to look at the photo of the gun involved. I do take into account however insofar as the plea is concerned that in regard to, firstly, the antique pistol clearly was only an antique pistol and in regard to the shotgun I accept the propositions put and nor was there any evidence put to the court that the matter was ever used. It was submitted by your counsel that the shotgun, albeit of its type, was of a rusted condition and there was no material before the court that it had ever been tested in the sense of it being recently fired.
80 However as is perhaps recently been pointed out just yesterday how dangerous it is and indeed the community's view is as expressed by the Parliament, that possession of weapons is a very, very serious charge especially where they are not registered and not permitted.
81 In the circumstances I see nothing wrong with the sentence imposed below, that is that an aggregate sentence in regard to both charges of five months gaol is appropriate. However in the circumstances, given your background and the matters that I have referred to it seems to me that the sentence should be fully suspended, so there will be a full suspension, of the five months aggregate period of imprisonment imposed for both offences however there will be no order as to immediate gaol, however it is again important for you to understand, I assume it has already been explained to you, but for the purposes of ensuring that if you come back it is on the record that it has been explained again to you. Ms Gleeson, I would ask you to indicate very clearly to Mr Edwards what the consequences will be if he comes back before the court having committed an offence punishable by imprisonment in the next 12 months.
82 MS GLEESON: Yes, Your Honour. Do you want me to do that ‑ ‑ ‑
83 HER HONOUR: Yes.
84 MS GLEESON: Certainly, thank you. May I be excused?
85 HIS HONOUR: While you are at it you may as well that get that signed. We will get the Community Correction Order signed.
86 MS GLEESON: That was consented to on a previous occasion, Your Honour.
87 HIS HONOUR: Yes, I just want you to make sure it is on the record and explained here, so if he comes back before me I will have it recorded.
88 MS GLEESON: Thank you, Your Honour. My client fully understands both orders
89 HIS HONOUR: Thank you. Mr Edwards, as I have already said your history is such that you have to this stage in your life never been convicted of an offence before. I hope my confidence is proved to be correct, that you will never be before the court again, given your responsibilities I hope that is so and I want to make it clear, as I said, should you be silly enough in the next 12 months to commit an offence punishable by imprisonment then you will know the consequences.
90 PRISONER EDWARDS: (inaudible).
91 HIS HONOUR: Yes. All right, I have signed that order. I have signed a forfeiture order in regard to Mr Edwards forfeiting both of the firearm items.
92 MS GLEESON: Yes, Your Honour, obviously that was consented to.
93 HIS HONOUR: Madam Prosecutor, any other matters I have to attend to?
94 MS McLEOD: Your Honour, does Your Honour propose to say anything in regards to Mr Edwards on 6AAA at all in regards to ‑ ‑ ‑
95 HIS HONOUR: No, because he does not come under that particular provision.
96 MS McLEOD: Yes, Your Honour.
97 HIS HONOUR: Thank you. They are the only matters, Madam Prosecutor?
98 MS McLEOD: Yes, Your Honour.
99 HIS HONOUR: Thank you. Thank you all for your - Mr Fitzpatrick, I will ask you to mention that thing to your instructors again because I see ‑ ‑ ‑
100 MR FITZPATRICK: I certainly will, Your Honour.
101 HIS HONOUR: ‑ ‑ ‑ indeed when I revisited this material that the three adjournments in this matter were all caused by your instructors neglect. You make sure that my comments about that neglect are passed on and that it is simply not appropriate to have courts messed about like that.
102 MR FITZPATRICK: Yes, Your Honour, I will convey your words in the strongest possible terms, Your Honour.
103 HIS HONOUR: Yes, I will stand down.
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