R v Marsh
[2000] VSCA 39
•14 March 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 20 of 1999
| THE QUEEN |
| v |
| GLENN ALLAN MARSH |
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JUDGES: | ORMISTON and BUCHANAN, JJ.A. and COLDREY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 March 2000 | |
DATE OF JUDGMENT: | 14 March 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 39 | |
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CRIMINAL LAW – Sentence – Two counts of false imprisonment (total effective sentence 2 years 6 months; minimum 1 year 6 months) – Whether cumulation proper – Relationship between the two sentences – Whether manifestly excessive – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr P.A. Coghlan, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr R. Maidment | Victoria Legal Aid |
ORMISTON, J.A.:
The applicant seeks leave to appeal from a sentence handed down in the County Court last year. He had pleaded guilty to two counts of false imprisonment, for which the maximum penalty is now prescribed at ten years' imprisonment. After admitting 16 prior convictions from six court appearances and after a plea had been made by his counsel, he was sentenced on the first count to one year's imprisonment and on the second count to two years' imprisonment, the learned judge directing that 18 months of the latter sentence be served cumulatively on the sentence on Count 1. The total effective sentence was thus two years and six months and the judge directed that the applicant serve 18 months before becoming eligible for parole.
The grounds of the present application are, in summary terms, that the learned judge erred in the following respects:
1.In ordering partial cumulation of the sentence imposed on Count 2 upon the sentence imposed on Count 1.
2. In failing to give adequate weight to personal factors.
3. In failing to give adequate weight to the applicant's remorse.
4.In failing to give adequate weight to the applicant's prospects of rehabilitation.
5. In imposing a manifestly excessive sentence.
6.(A ground added by leave last week.) in imposing a sentence of two years on Count 2 in circumstances where he had imposed a sentence of one year on Count 1.
The applicant at the time of the offences to which he pleaded guilty was 38 years old. He had had at least two unfortunate relationships with women. He had parted unhappily from his first wife and some years later from his second de facto wife, after which a bitter dispute over access to their twin sons had arisen. It had taken some 18 months before a Family Court judge had effectively rejected his application for increased access by a judgment given on Tuesday 25 August 1998.
On the following Saturday, 29 August 1998, the applicant left home in Pascoe Vale after consuming approximately two nips of scotch whisky in a coffee cup. He arrived at a nearby hotel that morning at about 9 a.m., carrying with him, although at that time concealed, a kitchen knife with a serrated edge and about five inches long.
At about 20 past 10 a staff member served the applicant a pot of beer and then another pot some 20 minutes later. She could recall serving the applicant later that day once again. At about 12.30 p.m. Kylie Ferighetto was at work behind the bar of the bistro section of the hotel. At this time there were numerous customers in the bistro area and in the gaming room. Ferighetto saw the applicant come towards the bar but at first took no further notice, so she did not see him come around behind the bar. She then felt the applicant put his arm around her back. He then placed his arm around her shoulder and said: "this is a siege. I'm not going to hurt you. Call the police." he produced the black-handled steak knife and lifted it up so that all could see it. He then lowered it until it was next to his leg. The applicant then asked for a scotch and coke. Ferighetto went to pick up a glass to do so but the applicant would not let her go. He asked for another staff member to contact the police and to obtain his drink. Ferighetto has stated that she felt petrified, her body was shaking and that her life was in mortal danger. She asked the applicant if he wanted a seat to which he replied yes. He kept his arm around her and walked about three metres to a table in front of the bar where they remained standing.
The assistant manager, Craig McDonald, who had been working in the cellar, arrived after receiving a message from another member of staff and after pressing the security system button. He saw the applicant holding Ferighetto with his left arm around her waist and his hand on her hip. In his right clenched fist he saw the applicant clutching a knife which was pointing downwards, but in what he called a firm and aggressive manner. McDonald asked the applicant to let Ferighetto go. The applicant said: "No. I've got to have somebody". McDonald offered to swap places with Ferighetto. The applicant immediately let go of Ferighetto, who left the room in a distressed state. The applicant immediately put his arm around McDonald. He continued holding the knife in his right hand. The applicant moved McDonald to a table where they could sit down. He did not appear to be intoxicated and McDonald could not smell any liquor on him. The applicant's drink was prepared and placed on the bar. McDonald stood up to get the drink. The applicant walked with McDonald to the bar where he took the drink.
The applicant told the assistant manager that he was upset about a court case which prevented him from seeing his children until they were five years old. Then the applicant became more upset and lifted the knife up. McDonald grabbed his right arm and tried to wrestle the knife away from both himself and the applicant. A short struggle ensued, with McDonald verbally assuring the applicant that he did not want to take the knife and only wanted to prevent either of them being hurt. The applicant calmed down but retained possession of the knife.
Not long afterwards, at about a quarter to one, some police arrived and immediately tried to negotiate with the applicant. The applicant's demeanour changed from calm to agitated when he spoke of his children and the court order preventing him from seeing them. He told the police he wanted to be shot so as to end it all. Then the applicant went to the southern wall of the bistro, where he again said he wanted to be shot. It seems more likely than not that by this time McDonald was no longer under his control. The applicant asserted that he had hepatitis C before stabbing himself in the left forearm and then warning those present not to get the blood on themselves.
Eventually the applicant appeared to calm down. A short time later he agreed to put the knife down and then started apologizing for wasting everyone's time.
He was arrested and conveyed to a police station where he was later interviewed, expressing remorse and making substantial admissions. In the course of his interview he stated that he did not want to hurt anyone and said that he "just wanted someone to listen, somebody in authority to listen to what this court done to me".
At the sentencing hearing counsel made a plea on behalf of the applicant which, in substance, relied on his most unfortunate history, both as a child and as an adult, so far as his personal relationships were concerned. Three reports from a forensic psychologist, Mr Healey, were tendered which set those matters out in detail. Although the judge expressed some scepticism about aspects of these reports, it was apparent the applicant had had a most unhappy childhood as one of 13 siblings with a violent father who separated from his mother when he was about 13 years old. The applicant had left his home and his mother when 14, and thereafter has lived an erratic lifestyle. Though in regular employment of one kind or another until 1996, he suffered several accidents, including a bashing by a group with baseball bats. He married at 18, but that marriage broke up after only two years and he has seen virtually nothing of his two sons of that marriage since that time. Shortly afterwards he commenced a de facto relationship but that broke up about five years ago. They had twin sons and it was the dispute about access to them which led to the present incident. His application for further access had been rejected just a few days earlier, the order of the Family Court judge permitting access for two hours per week in the presence of his mother-in-law, whom he detested.
In addition, it was claimed, as the judge largely accepted, that many of his prior convictions occurred in the 1980s and that the only ones of present significance were convictions for affray and for making a threat to kill, for which he received a totally suspended term of nine months' imprisonment.
Having heard the plea the learned sentencing judge imposed the sentences set out earlier. In essence he viewed the crimes as "very serious" as the applicant had successfully held two citizens as hostages whom he had chosen at random. The use of a knife meant not only fear but the potential for injury to the hostages and others at the busy hotel. Although the two offences had aspects of one single transaction, as forming part of his protest at his treatment at the hands of the Family Court, the learned judge did not believe total concurrency was justified.
It is necessary to turn now to the grounds of the application in the order that they were argued by counsel.
It was first argued that the learned judge was in error in imposing a sentence of two years on the second count when he had imposed a sentence of only one year on the first count. It was said that the judge had not explained why he had so distinguished between the two sentences, nor was there, so it was argued, any objective basis for giving a greater sentence on the second count. Indeed it was asserted there was more reason to impose a heavier sentence on the first count. As the sentence on that count was not inadequate, that on the second count must be treated as having been excessive.
I cannot accept counsel's arguments on this ground. In each case an appreciation of the seriousness of the events for which a person must be sentenced depends largely on how the judge views the facts in the depositions and other materials. Where there are two or more counts the judge is ordinarily in the best position to reach those conclusions on the whole of the material available. Each sentence should, as far as practicable, be proportionate to the offence and the offender, but the gradations of seriousness are largely within the judge's discretion. Unless the sentence on one count or another is manifestly excessive or is otherwise defective, the accused ordinarily cannot complain of such differences. Here manifest excess was only argued in relation to the total effective sentence and minimum term. Such an approach is reasonable for the principles of totality ought ordinarily to result in the overall criminality being properly assessed. Those questions of totality and the manifest excess have been separately challenged, but in my opinion no obvious error was shown in dealing with each of the individual offences in the way that the learned judge did. If anything, the judge was too lenient in dealing with the very serious offence comprehended by the first count, which was inflicted on an unsuspecting 19 year old who had no connection with the applicant and which resulted in her suffering continuing "anxiety and traumatic stress", as her psychologist put it. However it seems likely the period of imprisonment was shorter and there was less threatening action with the knife in comparison with the events covered by the second count. Moreover, whatever be the true facts, the overall sentence of two years six months seems well within the range appropriate to these offences, and arguably towards the bottom end of that range. This is not a case requiring the Court to resentence, but, in any event, I would not have imposed any lesser sentence for either count. The ground is rejected.
Secondly, it is argued that the learned judge erred in ordering partial cumulation of the sentence on the second count. It was said that the victims, or at least the second victim, were not chosen at random, as the learned judge held, and that the offences should be characterized as forming part of a single transaction. No doubt from the applicant's viewpoint that may be so, inasmuch as he was personally concerned to draw attention to his supposed plight in public and in a dangerous manner. But there were two persons in fact falsely imprisoned and each can properly be said to have been affected, and likely to be affected, in different ways. Both victims were in fact drawn at random, and it would seem, in circumstances where the applicant was indifferent to the terror and potential harm likely to be caused. It was said that Mr McDonald voluntarily subjected himself, but that is to misunderstand the situation. He very bravely undertook, in the emergency created by the applicant, to relieve Ms Ferighetto of the burden, and to take the risk that he might be knifed or harmed by this seemingly illogical stranger wielding a knife in a public bar. The applicant did not desist but willingly imposed his reign of terror on yet another victim, Mr McDonald, until the police arrived and gradually calmed him down. Mr McDonald's role is not only to be praised, but it should also be publicly recognized.
I can see no reason why the judge should not have dealt with the two incidents other than in the way that he did. He recognized their connection, applied the principles of totality and imposed an overall sentence which recognized each relevant aspect. I would reject this ground.
Finally, it was argued that the sentence was manifestly excessive, each of the remaining grounds being subsumed in the argument. In my opinion each of the matters specifically referred to, the applicant's personal history, his remorse and his rehabilitation, were considered by the learned judge and not overlooked in the course of his sentencing. On the other hand, the objective circumstances show that the total effective sentence and the minimum term were both well within the appropriate range, indeed arguably generous to the applicant. The events at the hotel that Saturday had many similar characteristics to an attempted armed robbery, two individuals being threatened at knife-point and others terrified and kept at bay for fear of injury, but here nobody knew what was in the applicant's mind, nor how it would all end. He clearly had no right to make a public demonstration of his personal grievances in this manner. His behaviour was totally unacceptable and deserved condign punishment. Both general and personal deterrence require sentences of this order. This ground should likewise be rejected.
In the result I would dismiss the application.
BUCHANAN, J.A.:
I agree .
COLDREY, A.J.A.:
I also agree.
ORMISTON, J.A.:
The order of the Court is that the application be dismissed.
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