R v Marshall - [2019] VSC 601

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0072

THE QUEEN
v
SEAN ADRIAN MARSHALL	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2019
DATE OF SENTENCE:	10 September 2019
CASE MAY BE CITED AS:	R v Marshall
MEDIUM NEUTRAL CITATION:	[2019] VSC 601

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CRIMINAL LAW – Sentence – Murder – Accused struck deceased to the head with wooden baton multiple times – Violent and unprovoked attack – Drug and alcohol affected offender – Verdins principles not applicable – Plea of guilty – No remorse –Standard sentencing scheme – Serious example of offence – Sentence of 25 years’ imprisonment with non-parole period of 17 years and 6 months’ imprisonment – Crimes Act 1958 (Vic) s 3(2)(b); Sentencing Act 1991 (Vic) ss 5A, 5B, 6AAA and 11A – Marrah v The Queen [2014] VSCA 119; R v Rookledge [2004] VSC 300 distinguished; DPP v Willis [2019] VSC 398 applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A Ellis and Ms K Hamill	Office of Public Prosecutions
For the Accused	Mr G Casement	Sarah Pratt & Associates

HIS HONOUR:

Sean Adrian Marshall, on 2 August 2019 in this Court, you pleaded guilty to the murder of Thomas Jaafar at Bairnsdale, Victoria between 14 and 15 March 2018.

At the hearing of your plea in mitigation on that day, I also heard the prosecution opening and submissions from both parties in relation to the sentence that should be imposed upon you.

The maximum penalty for murder is life imprisonment and, since this offence occurred after February 2018, the standard sentence for murder is 25 years’ imprisonment, pursuant to s 3(2)(b) of the Crimes Act 1958 (Vic).

It is now my responsibility to sentence you for this offence.

Background and circumstances of the offence

At the time of his death, Thomas Jaafar was 62 years of age. He was born in Baalbek, Lebanon and migrated to Australia in 1977. He had struggled with substance abuse issues, and was estranged from his family — although he had recently reconnected with one of his daughters.

You were 34 years of age and were living a somewhat transient life as you also dealt with various addictions. You had been staying at the home of the deceased at Wallace Street, Bairnsdale for approximately two weeks prior to committing this offence and, during that time, you found the habits of the deceased frustrating.

In the days leading up to his murder, you made it clear to friends you believed the deceased was ‘snooping’ through your room and that you were ‘pissed off’ with him because he had often asked you to spend time with him. On 12 March 2018, you sent a message to a friend, Halarna Lubke, that you had caught the deceased in your room and it ‘might not end well for him’. When she urged you not to do anything, you replied that you had sent him to his room because…

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 [2019] VSC 601
Case: [2019] VSC 601
Decision Date: 10 September 2019

CaseChat Overview and Summary

In the matter of R v Marshall, the respondent was charged with the murder of the deceased. The incident involved the respondent striking the deceased multiple times to the head with a wooden baton in a violent and unprovoked manner. The respondent, under the influence of drugs and alcohol at the time of the offence, pleaded guilty to the charge. The court was tasked with determining an appropriate sentence for the offence of murder, considering the circumstances and principles relevant to sentencing in such cases.

The central legal issues before the court were the appropriate application of the standard sentencing scheme in light of the Verdins principles, the nature of the attack, the influence of drugs and alcohol, and the respondent's lack of remorse. The court had to determine whether the Verdins principles, which typically apply to cases involving intoxication, were relevant in this context, given the violent and premeditated nature of the crime. Additionally, the court needed to consider the principles of proportionality and deterrence in setting a sentence that reflects the seriousness of the offence.

The court found that the Verdins principles were not applicable in this instance due to the gravity and unprovoked nature of the attack. The court emphasised the need for a sentence that reflects the seriousness of the crime and serves as a deterrent. Considering the lack of remorse and the premeditated nature of the attack, the court determined that the case presented a serious example of the offence, warranting a substantial sentence. The court sentenced the respondent to 25 years’ imprisonment, with a non-parole period of 17 years and 6 months, taking into account the principles of sentencing and the need to balance retribution, deterrence, and rehabilitation.

The final orders of the court include a sentence of 25 years’ imprisonment with a non-parole period of 17 years and 6 months for the offence of murder. The court's decision was influenced by the principles of sentencing, the severity of the crime, and the need to ensure public safety and deterrence. The respondent's lack of remorse and the impact of drugs and alcohol were also considered in the determination of the sentence.

Orders