R v Marshall
[2019] VSC 601
•10 September 2019
| 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 you were ‘guna [sic] bash him’.
On Wednesday, 14 March 2018, the deceased visited his friend, Paula Gunn, at her home in Bairnsdale. As they prepared to drive back to the Wallace Street residence, they found you waiting outside. The deceased asked Ms Gunn to drive you home as well, and the three of you arrived around 5 pm. Ms Gunn returned to the premises several times throughout the remainder of the day.
Later that evening, around 10:30 pm, Ms Gunn returned to Wallace Street with her son, Justin Van Boxtel. When they arrived at the deceased’s premises, the deceased was sitting in his regular chair. He kept a wooden baton next to this chair for protection. You were sitting on the couch beside him, and the two of you were drinking alcohol. The deceased had music playing.
A discussion about the music became heated and you apparently became angry with the deceased. You made an allegation that the deceased had ‘gone through your room’. You then said something to the effect that he was either a paedophile or a rapist. You picked up the baton beside his chair and struck the deceased to the head with it. Ms Gunn heard the first strike and then witnessed you strike him a second time. The deceased asked Ms Gunn for assistance but she was frightened, so she and her son left the house. You continued to strike the deceased to the head with the baton; ultimately causing his death. Throughout the assault, the deceased remained in his chair, where he was later found by police.
Sometime later on 15 March, you attended at Ms Gunn’s house and told her and Mr Van Boxtel that you believed the deceased had died. You made some remarks about cleaning up the house after having killed him. Mr Van Boxtel noted that you had changed your clothes by this stage.
You then went to your sister’s residence where you confided in her partner, Gary MacDonald, that you had killed the person with whom you were staying. You told Mr MacDonald that someone had told you the deceased was a paedophile and so you asked him. According to you, when the deceased said he wanted to talk about it later, you grabbed the baton and stood over him. You said that the deceased’s refusal to address the allegation made you mad, and you hit him. When your sister arrived home, you made further admissions about what you had done. You advised her that you had made various attempts to ‘cover up’ the crime scene. This included an unsuccessful attempt to burn down the house. Your sister and Mr MacDonald urged you to present yourself to police.
Later, you visited Ms Lubke and discussed what had occurred. You told Ms Lubke you would hand yourself in to police after spending the weekend at Lakes Entrance. You stayed at Ms Lubke’s home that evening and engaged in a series of phone calls with a lawyer. The following day, you were seen hitchhiking towards Lakes Entrance.
On 17 March 2018, you contacted a friend who lived in Lakes Entrance and asked to see him. You told the friend that you had killed someone because he was a paedophile and because he had ‘pissed’ you off. For the next few hours, you and your friend played the pokies and had some drinks at various locations around Lakes Entrance.
Your family approached the police after growing concerned about the statements you had made to them. Police arranged for a welfare check on the deceased and attended the residence on 17 March 2019. The attending officers could tell by the severity of Mr Jafaar’s head injuries that he was dead. They observed a large amount of blood and bone fragments on the floor of the living room around him. Twenty-five fragments from the deceased’s skull were found on the floor next to his body. The largest of these fragments measured seven cm by five cm. It is important to acknowledge that the police were confronted with what was a grotesque tableau as I have seen from examining the crime scene photographs.
In the connecting kitchen, the crime scene examiners found containers of vegetable and baby oil on the open door of the oven and inside it. The dial for the oven was turned on; however, the oven appeared to be non-functioning. Both the kitchen sink and bathtub were filled with water, towels and bottles of cleaning products. Police located the wooden baton used to kill the deceased in the bathtub. These findings are consistent with the admissions you made about trying to destroy the evidence of what you had done.
On 19 March 2018, an autopsy was carried out on the deceased. The pathologist determined that the head injuries were the cause of death. The deceased’s skull had been shattered into 45 fragments and had to be reconstructed by a forensic anthropologist. Fractures to his cheekbones, eye sockets, nasal walls and jaw were also discovered. There were also multiple facial and scalp abrasions, lacerations and bruises. Toxicology indicated the presence of alcohol, methylamphetamine and a number of prescription drugs in his system, but not at the level that would have made any contribution to the cause of death.
This was a violent and unprovoked attack that you sustained until you caused enormous damage to the deceased man. His injuries were horrific and a testament to your thoroughly aggressive intention. This was a particularly savage attack and you will need to be sentenced accordingly.
On Sunday, 18 March 2018, police attended at Ms Gunn’s residence. She endeavoured to conceal the fact that you were present. However, you were found hiding on the property, hiding yourself under bedsheets. You were then arrested and taken to the Bairnsdale Police Station where you were interviewed.
Police interview and covert operation
During your police interview, you claimed that you had memory problems and that the events of the week prior were a ‘big blur’. You told police that you had been using large quantities of methylamphetamine and that you had been experiencing ‘a mental breakdown’ for the last couple of weeks. In answer to a number of questions, you chose to make no comment as, of course, you were entitled to do.
When police informed you that your family and Mr MacDonald were concerned for you, you became agitated. After learning Mr MacDonald had made a statement, you told police that ‘snitches get stitches’. You also suggested that your sister and Mr MacDonald knew details of the offence because, in fact, they had killed the deceased.
Later, while you were in custody at the Bairnsdale Police Station cells, two undercover police operatives were placed in the cells with you. During a conversation with the first operative, you told them that you had ‘knocked off a Lebo’ and claimed that the person you killed was a paedophile. You described killing him with ‘a bit of wood’. It is alleged that you laughed when you said that you lost count of the number of times that you hit him, commenting that ‘that’s what happens when you’re a pedo’. You divulged a number of other details about the offence, including that you likely decided to kill the deceased after the first or second time you hit him. You recalled knowing the deceased was dead because ‘you could see his brain’. You then described washing clothes and the weapon with ‘every type of cleaner in the world’.
When a second undercover operative was placed in your cell, you confirmed that you had killed the deceased and how you did it. You made it clear that you were endeavouring to establish a defence to the likely charge of murder, although acknowledging that ‘self-defence is really hard to prove’. You justified your conduct by regularly referring to the fact that the deceased, you thought, was a paedophile.
You also told the operatives that Ms Gunn had ‘rolled’ when speaking to police. You asked for their assistance to speak to a friend of yours to tell him that Ms Gunn was a ‘snitch’. On 21 March 2018, the police discovered the words ‘Paula Gunn snitch’ etched into a bench in the exercise yard of the cell area at the Bairnsdale Police Station.
Victim impact statements
During the proceedings, the prosecution read two victim impact statements. The first was from Paula Gunn, dated 18 July 2019, and the second from Sabrine Jaafar, dated 17 July 2019.
Paula Gunn described how witnessing to your attack on the deceased affects her daily. The trauma is clearly something that she will carry with her for the rest of her life. She expressed fear for herself and her son, and has become socially isolated because of what you have done.
Sabrine Jaafar described the loss that she suffers as the result of her father’s death. She had begun rebuilding her relationship with him over the last few years and was in regular contact with him. His death had a significant effect on her, and she believes that she will never fully recover given the violent manner of her father’s death.
The victim impact statements highlight the tragedy of what you have done. Apart from the tragic death you caused, you have ensured that these people will carry the scars of it for the rest of their lives.
Criminal history
Your prior criminal history is largely unrelated but began in 2001 with property offences. In December 2010 at the Bairnsdale Magistrates’ Court, you received a nine-month Community Based Sentence for recklessly causing injury. You were also convicted on 16 February 2016 for persistently breaching a Family Violence Intervention Order, hindering an emergency worker on duty, criminal damage and committing an indictable offence whilst on bail. The court imposed an aggregate sentence of three months’ imprisonment. You were also placed on a Community Corrections Order for 12 months, which you successfully completed.
Personal circumstances
You were born on 30 October 1983 in Rosebud and grew up in the Goongerah area. You lived in a stable home but your choice of peer group led to a deterioration in your circumstances.
You claim that you were sexually abused by a male teacher’s aide on one occasion during grade five or grade six, when you were touched on the buttocks and groin area. You kept this conduct a secret because you were embarrassed.
It would appear that you had learning difficulties at school, particularly in secondary school, and you only completed Year 10. After leaving school, you worked briefly in road construction but have been effectively unemployed ever since.
You have had three significant relationships; one of which produced a child. When the child was 18 months old, her mother died as a result of a drug overdose. You report that you were the one who found your partner deceased following the overdose.
Soon after the death of your daughter’s mother, you entered into a relationship with another woman who suffered from epilepsy. She too died after having an epileptic fit in the bathtub. You reported that you also found her deceased.
Sometime after that, you began another relationship, which you describe as toxic, controlling, and dominated by drugs. Whilst in this relationship, contact with your family ceased and your convictions for the breaches of intervention orders arose.
You first used marijuana as a teenager and then, at age 21, began using morphine tablets. In 2014, you began using methylamphetamine. From your first use onwards you developed a severe methylamphetamine addiction. You also started to consume a large amount of alcohol from the age of 16. Due to your substance abuse, you have had periods of homelessness.
Mental health and substance abuse
On your behalf, counsel relied upon a report prepared by psychologist Miriam Latif, dated 15 July 2019. In addition to her report, Ms Latif gave evidence during the plea on 2 August 2019. She attended because the prosecution made it clear that they wished to challenge the conclusions that she reached.
Prior to her assessment, Ms Latif received a memorandum from counsel, the indictment, Volume 1 of 3 of the informant’s brief, and your criminal history. She conducted a 90-minute interview with you over video link. Given the time constraint, Ms Latif was unable to conduct any assessments of your intellectual functioning.
In her report, Ms Latif diagnosed you with an alcohol use disorder, stimulant use disorder, cannabis use disorder, an adjustment mood disorder with depressed mood, and post-traumatic stress disorder (‘PTSD’). Ultimately, the question is the extent to which any of these conditions contributed in a causative way to the commission of this offence by you.
In answer to questions from me, the witness gave the following evidence:
[T]here’s a combination of factors which have operated in relation to Mr Marshall on this night, which includes substance abuse, both drugs and alcohol? --- Yes.
And there’s a pre-existing psychological condition that you observed? --- Yes, your Honour.
And how you attribute any of those things to the underlying connection with this offence is extremely difficult to say, isn’t it? --- It is your Honour, yes.
And the best you can say is his PTSD and his dissociative disorder were present and may have contributed to some degree? --- That’s correct.
And you can’t identify the degree, that’s right, isn’t it? --- That’s correct, your Honour, yes.
As I made clear to your counsel, the principles arising from the judgment of the Court of Appeal in Verdins[1] require ‘rigorous application’. In my view, the psychological consultation was limited and Ms Latif did not have the complete collection of information. Under cross-examination, Ms Latif acknowledged she did not seek to confirm any of the information you reported with family members or other external sources. I am not satisfied that these findings establish, to the standard necessary, the kind of causal connection that Verdins contemplates.
[1]R v Verdins (2007) 16 VR 269.
Nevertheless, I accept Ms Latif’s diagnosis of your psychological conditions, and it is appropriate to take those matters into account as part of your personal circumstances when imposing sentence upon you. Your counsel accepted that there are difficulties about making a clear assessment of the nature and severity of your symptoms and the effect that your psychological condition had on your offending in a way that might cause an appropriate moderation of sentencing factors, such as general deterrence.
Ms Latif also concluded that, as a result of your diagnosed disorders, your time in custody may be more onerous than for someone not suffering that such conditions, but put it no higher.
Your psychological conditions were mixed with your consumption of alcohol and substances, including methylamphetamine. You were well aware of the significant effect that alcohol, in particular, had on your behaviour and that it would make you aggressive, agitated, irrational and, at times, violent.
Counsel on your behalf submitted that you had an exceptional history of tragedy that should be taken into consideration when determining your moral culpability. He referred me to two judgments in support of this submission: Marrah v The Queen [2014] VSCA 119 (‘Marrah’) and R v Rookledge [2004] VSC 300 (‘Rookledge’). I found these two cases to be of limited assistance and distinguishable on their facts.
In Marrah, the applicant had been convicted of recklessly causing serious injury, rape and uttering threats to kill his partner. When considering the relevance of the applicant’s history on sentence, the Court of Appeal referred to his upbringing as ‘”marked by brutality and violence”; he had been seriously physically and sexually abused during his formative years’,[2] which resulted in an inability to resolve ‘personal conflict, except [to] resort to violence’.[3]
[2][2014] VSCA 119 [12]
[3]Ibid [13].
In Rookledge, the accused was sentenced for the murder of his former romantic partner. In his reasons for sentence, the judge identified that the offender ‘suffered a disturbed and abused childhood’[4] that included physical and sexual abuse. The sentencing judge referred to psychiatric evidence that the accused’s history caused ongoing psychological trauma. He concluded that ‘his lengthy drug abuse, a consequence of deep-seated problems flowing from an appalling childhood, affected his thinking and judgment at the time’[5] and therefore his moral culpability was diminished to a limited extent.
[4][2004] VSC 300 [9].
[5]Ibid [18].
The traumatic history of those offenders can be readily distinguished from your own. By your own admission, you had a regular, stable childhood. As I understand it, your counsel contends that the trauma you experienced arose, in part, from the circumstances of the deaths of two former partners. For me, it is not self-evident how those occurrences — if they do amount to the condition of PTSD — explain your recourse to violence in this case. I, of course, take the matters into account in a more general way.
Your counsel also relied on Ms Latif’s conclusion that your attack upon the deceased was a direct and spontaneous consequence of learning the allegation that he was a paedophile, given your reported history of sexual abuse. In the circumstances where there is no other evidence before the Court to support your version of events, I cannot accept this submission even on the lesser standard that applies to matters raised in mitigation.
In my view, your substance abuse has a much stronger bearing on your moral culpability.
Prospects of rehabilitation
It was put on your behalf that I should assess your prospects of rehabilitation in a more favourable way than I may otherwise have done. Your counsel provided a letter written by your father, John Marshall, in which he reiterated your history of drug use and the effect of the deaths of your partners on you. He described the relationship you have with your family as loving, and advised that he and your sister were wholly supportive of you.
Your counsel also submitted that your drug and alcohol abuse has subsided —assuming it has — as a consequence of being in custody. That said, I am guarded about your prospects of rehabilitation.
Plea of guilty
You indicated your intention to plead guilty to this offence before the matter proceeded to a contested committal hearing, and there is a significant utilitarian benefit in your plea. It does represent an acceptance of responsibility and you are entitled to credit for that. However, I am not persuaded that your plea of guilty represents remorse on your behalf in any way.
Standard sentencing scheme
The offence of murder has become a ‘standard sentence offence’ under the ‘standard sentencing scheme’ established by ss 5A and 5B of the Sentencing Act 1991 (Vic) (‘Act’).
In DPP v Willis [2019] VSC 398 (‘Willis’), I noted the following:
The standard sentence is the period specified by the Act that is the appropriate sentence for the middle of the range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence.
Those objective factors are to be determined wholly by reference to the nature of your offending. Those factors are what can be proven that you intended to do, what you actually did — in all its detail — and what occurred afterwards, to the extent that it illuminates your actions. The nature of your offending is defined without reference to your personal circumstances.[6]
[6][2019] VSC 398 [47]-[8] (citations omitted).
In summary, the objective factors that go the seriousness of your offending in this case include the particularly vicious way in which you attacked the deceased. You used a weapon to inflict multiple fatal injuries and continued to strike the deceased after it was obvious that you had severely injured him. You killed the deceased in his own home, a place where he should have felt safe and where he had invited you to live. You carried out this offence in the presence of others. You did nothing to assist the deceased and left him for dead in his house. For a time afterwards, you sought to avoid responsibility by attempting to conceal your involvement, lying about what occurred and contemplated the invention of a defence of self-defence.
This was a thoroughly unprovoked, vicious attack, gruesome in its consequences. Whatever belief you might have held about the deceased is absolutely no justification of any kind whatsoever for what you did. There was no element of self-defence; the deceased had done nothing to precipitate your attack and his most horrible death.
As I went on to say in Willis:
[Determining the objective factors] is not the end of the sentencing decision. The imposition of the standard sentence is not mandatory in any sense. It is, rather, only one more factor that the Court is required to take into account when determining the appropriate sentence. Put another way, the standard sentence can be considered another legislated guidepost, like the stated maximum sentence. The Act itself provides that ‘instinctive synthesis’ is still the correct approach to sentencing, which requires the simultaneous balancing of many factors including the nature and seriousness of the offending as well as your personal circumstances.[7]
[7]Ibid [50] (citations omitted).
It is also to be noted that by virtue of s 11A of the Act, I must fix a non-parole period of at least 70 per cent of the sentence imposed on the standard sentence for the offence of murder unless it is in the interest of justice to do so.
Conclusion
In my view, the appropriate sentence to be imposed on you for the offence of murder is the standard sentence of 25 years’ imprisonment, and that is the sentence that I impose. I fix a period of 17 years and six months that you must serve before you will become eligible to apply for release on parole.
Section 5B(5) of the Act requires me to refer to the standard sentence for the offence of murder in this case and explain how the sentence I have imposed on you relates to the standard sentence. I impose this sentence upon you because I regard this offence as very serious example of the offence of murder, particularly given the viciousness of the offence and the gratuitous nature of your violence. There are few factors that could mitigate the seriousness of your crime.
I have taken into account in fixing this sentence the psychological conditions that you were diagnosed with by Ms Latif. I acknowledge that it is likely that these conditions will make your time in custody more onerous to some degree — though, in the absence of the consumption of alcohol, methylamphetamine or other drugs, that effect may be diminished.
Section 6AAA
I declare pursuant to s 6AAA of the Act that, had you not pleaded guilty to the charge of murder as you did, the sentence I would have imposed on you would have been a sentence of 28 years’ imprisonment, and I would have fixed a minimum period of 21 years before you became eligible to apply for release on parole.
Pre-Sentence Detention
I declare the period of 542 days, including today, as your pre-sentence detention and direct that the records of the Court record that that is time to be reckoned as already served.
I have already made the forfeiture order requested by the prosecution.
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