R v Marshall - [2017] SASC 157

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MARSHALL
[2017] SASC 157
Judgment of The Honourable Justice Vanstone
2 November 2017
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
The applicant is detained in custody under s 23 of the Criminal Law (Sentencing) Act 1988 (SA) on the basis that he is unwilling or unable to control his sexual instincts. The applicant applies for release on licence under s 24 of the same Act.
Held: Application dismissed. The paramount consideration is the safety of the community: s 24(1b). The most recent psychiatric reports do not support release on licence. The applicant remains unwilling to control his sexual instincts and if he were released there would be a very high risk of re-offending.
Criminal Law (Sentencing) Act 1988 (SA) s 23, s 24, s 25, referred to.
R v Marshall [2009] SASC 287; R v Marshall [2014] SASC 92, considered.

R v MARSHALL
[2017] SASC 157
Criminal: Application

VANSTONE J: The applicant, Mark Trevor Marshall, applies pursuant to s 24 of the Criminal Law (Sentencing) Act 1988 (SA) for release on licence. The application was filed on 23 October 2015. The applicant is currently detained until further order pursuant to s 23 of the Sentencing Act, having been found by Nyland J on the application of the Director of Public Prosecutions to be incapable of controlling his sexual instincts and also unwilling to do so: R v Marshall [2009] SASC 287.
The paramount consideration when determining an application such as this is the safety of the community: s 24(1b) Sentencing Act. Having considered the matter at some length and having taken into account all the materials and evidence required by s 24(1c) of the Sentencing Act, I have determined that the application should be refused.
Background
The applicant is 48 years of age, having been born on 20 September 1969. At the time of the application heard by Nyland J in 2009, the applicant already had a lengthy history of sexual offending. He was then awaiting sentence with respect to two further charges of causing a child to expose her body to gratify a prurient interest. The previous offending included 13 counts of indecent assault, all involving children, for which he was sentenced in 1987 to three months’ imprisonment suspended. Then, he was sentenced in 1990 for seven counts of indecent assault relating to female children aged from five to seven years and received a sentence of four years’ imprisonment. In 1992, he was sentenced to over five years’ imprisonment for three counts of indecent assault, the victims being a male and a female young child. In 1996, the applicant was sentenced to over five years’ imprisonment for indecent assault and procuring a child to expose her body. Again, the victim was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Marshall

Details

AGLC: R v Marshall [2017] SASC 157
Case: [2017] SASC 157
Decision Date: 2 November 2017

CaseChat Overview and Summary

In the case of R v Marshall, the applicant, a man with a history of sexual offending, sought release on licence under s 24 of the Sentencing Act. The application was heard by the court, which considered the applicant's suitability for release on licence, weighing the risk of re-offending against the need to protect the community. The applicant's history of sexual offences, including multiple counts of indecent assault involving children, was thoroughly reviewed. Expert opinions varied, with some recommending release on licence with strict conditions, while others were more cautious due to the applicant's continued denial of responsibility and issues such as possession of non-pornographic images of children.

The court was tasked with determining whether the applicant had sufficiently rehabilitated and whether his release on licence would pose an unacceptable risk to the community. The court had to weigh the applicant's potential for rehabilitation against the paramount consideration of community safety as mandated by s 24(1b) of the Sentencing Act. It also had to consider the applicant's mindset and the likelihood of re-offending, as well as the feasibility and practicality of imposing strict conditions to mitigate the risk of re-offending. Ultimately, the court had to decide whether the benefits of releasing the applicant on licence outweighed the potential risks to the community.

After careful consideration of the evidence, including expert reports and the applicant's behaviour, the court found that there was a marked risk of re-offending if the applicant were released. The court concluded that the applicant's current attitude and denial of responsibility made him unsuitable for release on licence. The court acknowledged the hope for rehabilitation but determined that the applicant needed to change his mindset. The court also noted the impracticality of placing the applicant in a "one-man prison" due to cost and feasibility. Given the significant risk to the community, the court dismissed the application. The court further ordered that no further application be made by the applicant for a period of at least 18 months to allow time for the applicant to undertake the necessary rehabilitation and change his mindset.

Orders

Orders of the court

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Background

Background to the litigation

The paramount consideration when determining an application such as this is the safety of the community: s 24(1b) Sentencing Act. Having considered the matter at some length and having taken into account all the materials and evidence required by s 24(1c) of the Sentencing Act, I have determined that the application should be refused. Background The applicant is 48 years of age, having been born on 20 September 1969. At the time of the application heard by Nyland J in 2009, the applicant already had a lengthy history of sexual offending. He was then awaiting sentence with respect to two further charges of causing a child to expose her body to gratify a prurient interest. The previous offending included 13 counts of indecent assault, all involving children, for which he was sentenced in 1987 to three months’ imprisonment suspended. Then, he was sentenced in 1990 for seven counts of indecent assault relating to female children aged from five to seven years and received a sentence of four years’ imprisonment. In 1992, he was sentenced to over five years’ imprisonment for three counts of indecent assault, the victims being a male and a female young child. In 1996, the applicant was sentenced to over five years’ imprisonment for indecent assault and procuring a child to expose her body. Again, the victim was a child of very young years. The applicant was further found guilty of two offences of causing a child to expose her body. About 12 months after the s 23 order had been made, Mr Marshall applied for release on licence pursuant to s 24 of the Sentencing Act. Dr I Jennings and Dr K O’Brien provided expert reports. Dr Jennings expressed the view that Mr Marshall had made significant progress and he supported release on licence with strict conditions. Dr O’Brien was more guarded. An order releasing Mr Marshall on licence was made on 15 July 2011, but was subject to accommodation being found and approved by the Parole Board. Before that occurred the Director of Public Prosecutions sought a reconsideration of the order, based on new developments. A current affairs program regarding Mr Marshall’s forthcoming release had apparently caused a regression in his state. This manifested in Mr Marshall increasingly identifying as a victim and not accepting responsibility for his past actions. There was another issue. Mr Marshall was found with images of children on his computer in the education centre and in his cell. While these were not pornographic, Dr O’Brien was of the view that Mr Marshall’s behaviours were incompatible with those expected of a man seeking release on licence. Dr O’Brien recommended against release. Mr Marshall then undertook a long period of treatment with the clinical psychologist Ms E Warne, who was employed within the Department for Correctional Services. The possibility of release on licence was further explored and in November 2012 another order was made by Nyland J, again subject to appropriate accommodation being found. That proved difficult and Mr Marshall remained in custody.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is hope for Mr Marshall. Dr Jennings believes that further, targeted treatment in custody can help him. However, he will have to change his mindset if he is to derive any benefit from it. His current attitude is antithetical to progress. Conclusion There is a marked risk of re-offending if Mr Marshall is released. Placing him in the community in a “one-man prison” might address the risk, but it would not be beneficial to Mr Marshall and is not feasible in terms of cost. The need to protect the community is paramount. Therefore, the application must be dismissed. Having regard to the history of this application and the one which preceded it, and to the extensive work which needs to be done by Mr Marshall to ready himself for another such application, I shall order that no further application be made by him for 18 months. The orders are:1The application is dismissed.2There shall be no further application by Mr Marshall for a period of at least 18 months from the date of these orders.

Ratio Decidendi

Legal Principle Established

Mr Marshall denied having ever targeted anyone in a predatory way and said that the estimate of costs associated with his release was absurd. He admitted previously breaching his parole, but said that was because he was at home and “things were happening at home”. He denied committing offences immediately upon previous release, as alleged by Ms Boord and Mr Allen. Consideration As can be inferred, Mr Marshall’s presentation to the Court is consistent with that described by his treating practitioners. He appears to be entirely consumed by past events and his attempts to minimise his wrongdoing and paint himself as a victim. The materials provided to me, particularly Exhibit A5, present a man who, for whatever reasons, is deeply disturbed and obsessed with sexual crime and child killings. The episode of writing to AB is particularly disturbing. It echoes the event in 2014 when, in the midst of a similar application, “gravely concerning items” were found in Mr Marshall’s cell. It is not to the point that Mr Marshall was not found guilty of the charges based on AB’s evidence. Writing the letter shows, not only an inability to break from the past and look ahead, but also a profound lapse of judgement. Coupled with Mr Marshall’s apparent inability to demonstrate that he has taken anything from the extensive counselling resources allocated to him and to focus on how he could ensure that he would live a law abiding life if released, his presentation gives no promise that he has achieved some measure of insight and rehabilitation, and every indication that he has not. These conclusions are only reinforced by the opinions of Drs Furst, Heaney and Jennings, which I accept. There are some differences of opinion among them, but all are agreed that, if released, there would be a high risk that the applicant would re-offend. I accept Dr Furst’s opinion that Mr Marshall remains unwilling to control his sexual instincts. I also note and accept Dr Heaney’s opinion that Mr Marshall would be incapable of controlling his sexual instincts if released. There are clear risks associated with releasing Mr Marshall. In my view minimisation of these risks can only be by way of external agency; Mr Marshall appears to have very limited, if any, ability to himself minimise the risks. I consider it is unrealistic to assume that even a close degree of supervision will remove the risk of re-offending. All these considerations, against the legislative directive found in s 24(1b) of the Sentencing Act, mean that the application cannot be granted. There is hope for Mr Marshall. Dr Jennings believes that further, targeted treatment in custody can help him. However, he will have to change his mindset if he is to derive any benefit from it. His current attitude is antithetical to progress. Conclusion There is a marked risk of re-offending if Mr Marshall is released. Placing him in the community in a “one-man prison” might address the risk, but it would not be beneficial to Mr Marshall and is not feasible in terms of cost. The need to protect the community is paramount. Therefore, the application must be dismissed. Having regard to the history of this application and the one which preceded it, and to the extensive work which needs to be done by Mr Marshall to ready himself for another such application, I shall order that no further application be made by him for 18 months.