DPP v Marshall
[2008] VSC 360
•16 September 2008
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1562 of 2007
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL BRUCE MARSHALL |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4-7, 11-13 AUGUST, 28 AUGUST 2008 (Plea); 16, 23 SEPTEMBER 2008 | |
DATE OF SENTENCE: | 16 SEPTEMBER & 2 OCTOBER 2008 | |
CASE MAY BE CITED AS: | DPP v MARSHALL | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 360 | |
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CRIMINAL LAW – Sentence – Attempted murder – Defendant in prison - Attempted strangulation of another prisoner - Prior convictions – Sentenced as a serious violent offender – Protection of the community – Cumulation of sentence - Sentenced to 12 years’ imprisonment, six years to be served cumulatively with existing sentence of 11 years for threat to kill – Period of 2 years, 11 months and 30 days in relation to cancelled parole for sentence imposed in New South Wales noted - Non parole period refixed to 12 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Lincoln | Stuart Ward, Acting Solicitor for Public Prosecutions |
| For the Defendant | Mr W. Stuart | Dowling McGregor Thomas |
HIS HONOUR:
Paul Marshall, you have been convicted of the attempted murder of a fellow prisoner, Mark McEachran, while you were each in protective custody in the Metropolitan Assessment Prison. The jury’s verdict of guilty means that it must have found that you strangled your victim to the point where he would have died were it not for the fact of swift and effective medical treatment.
At the time of the attack, you were serving a sentence of 11 years’ imprisonment for a threat to kill. That is defined in the Sentencing Act as a serious violent offence, and upon your being sentenced for it, you became a serious violent offender. This has two consequences for the sentence today. First, the Sentencing Act requires that I must regard the protection of the community as the principal purpose for which the sentence is imposed upon you. Secondly, it means that, whenever you are sentenced for a second or subsequent serious violent offence, the sentence for that later serious violent offence must, unless the court directs otherwise, be served cumulatively on any uncompleted sentence imposed on you.
Attempted murder is, like a threat to kill, a serious violent offence. It necessary follows that I am by law required to specifically direct concurrency if the sentence I impose today is not to be wholly cumulative on the sentence or sentences you are currently serving.
Your counsel, Mr Stuart, has submitted that I should direct at least a degree of concurrency in your case. In support of that submission, he referred to your age, your general background, and the importance of your not receiving a total sentence that, when taken in conjunction with the 11 years you are already serving, could properly be described as “crushing”.
You were born in 1970, and so turned 38 years of age on 21 August this year. Of those years, the first 10 or 12 were spent living at home with parents who, it seems, were unable to give you, your sister, or either of your two brothers, each of whom was older than you, a settled and harmonious childhood. As a result, you were placed in a boys’ home when only 10 or 12 years old, and have been in institutions for all but about a total of three years since. The results, for you and for those who have suffered from your crimes, have been disastrous.
I do not need to detail the abuse to which you have been subjected while under the power of others who have abused that power. The abuse is described in the report dated 29 February 2008 by Mr Bernard Healey, clinical psychologist. I doubt that anyone could experience such maltreatment without developing serious problems. That fact that you have found it hard to exercise appropriate judgment when assessing the motives of others, and are fearful of your ability to meet the demands of freedom, is therefore no surprise. Nor is it unexpected that you suffer from depression and anxiety.
Perhaps above all this is the tragedy of your self-hatred. It is a tragedy because all life has an inherent value, yours as much as that of Mark McEachran, or any of us in this courtroom, or anyone else. It is also a tragedy because to lack self-respect is to lack one of the essential elements in a life of reasonable contentment. Without self-respect, fulfilment is difficult if not impossible. It is human to have faults. Self-respect enables us to acknowledge these faults while recognising at the same time that all of us have at least a core that has value and is worth preserving, indeed treasuring. You, of course, have that core. Although your behaviour must be denounced, and while you and I must recognise it for what it is, I hope that you will also come to recognise that your life, no less than the lives of any of us, is - at a fundamental level - of immeasurable value.
It may be that that process has already begun. It will be to your credit if you make good your plans to take up courses which will improve your chances of employment when released from custody. It is already very much to your credit that you place considerable store on the monthly access visits of, and the weekly telephone calls to, your two children. You might be able give to them what those in whose care you were placed failed to give to you: the respect to which, as an individual human being, you always remain entitled, and to which, therefore, you are entitled today. You might also be in a position to offer your children a friendship that they may come to treasure.
In the meantime, however, the attack on Mark McEachran must be dealt with according to law. He, a fellow prisoner, was and is entitled to that respect about which I have spoken: that is, a recognition of his humanity. You did not give him that respect. The jury have found that, on 22 August 2005, you came uninvited into his unlocked cell and shortly afterwards wound an electrical cord around his neck, pulling it tight. As a result, Mr McEachran became unconscious, suffered fractures of the hyoid bone, the voice box and surrounding cartilage, and was very close to death at the time medical assistance was obtained.
I am satisfied beyond reasonable doubt that this was a vicious attack. If there was a motive, it is unclear. There is no evidence that Mr McEachran did any harm to you.
The maximum penalty for attempted murder is 25 years’ imprisonment. Having regard as I must to the protection of the community as the principal purpose for which this sentence is to be imposed, I then turn to the maximum penalty, to current sentencing practices, to the nature and gravity of the offence, and to your culpability and degree of responsibility. I also take into account Mr McEachran’s personal circumstances, the impact of the assault upon him, and your previous character. It seems to me that I should, in addition, avoid a sentence that is crushing having regard to the sentence you are undergoing already, while being mindful that that aim must not run counter to the protection of the community.
I should say more about that consideration in the light of your criminal history. It demonstrates that you have been a person from whom the community needed protection. And it is not to the point to say that a small segment of the community has treated you very badly. In the end, we all must take responsibility for our actions. You have a series of convictions for offences against property and for causing physical injury. These have influenced me in deciding upon the appropriate sentence in this case.
There is a further consideration. On 5 July 2006 the Parole Board of New South Wales cancelled the parole pursuant to which you had been released following a conviction in that State. The cancellation had the effect that you were required to serve in prison an unexpired term of imprisonment of 2 years 11 months and 30 days. I have taken that into account in applying the totality principle to the sentence I think is appropriate. I do this having noted that the County Court judge by whom you were sentenced on 9 October 2006 to 11 years’ imprisonment did not, when pronouncing sentence, refer to this unexpired term, which in accordance with the appropriate legislative provisions you are now to serve in Victoria.
Taking all these matters into consideration, it seems to me that a term of 12 years’ imprisonment is appropriate for the charge of attempted murder, with a direction that six of those years be served concurrently with the sentence of 11 years’ imprisonment that you are now serving. It remains necessary to set a new non-parole period. I accept in part what your counsel, Mr Stuart, submitted in that regard. In my opinion, I should allow an appropriate period that will enable you, should you take advantage of it, to re-integrate into the community. I direct that you serve 12 years before becoming eligible for parole. I further declare that 320 days have already been served under the sentence thus imposed, and direct that this declaration be entered in the records of the court.
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CERTIFICATE
I certify that this and the 3 preceding pages are a true copy of the reasons for sentence of Harper J of the Supreme Court of Victoria delivered on 16 September 2008 and on 2 October 2008.
DATED this 2nd day of October 2008.
Associate
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