R v Marshall
[2016] VSC 439
•2 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0084
| THE QUEEN |
| v |
| ROBERT MARSHALL |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 April & 11 July 2016 |
DATE OF SENTENCE: | 2 August 2016 |
CASE MAY BE CITED AS: | R v Marshall |
MEDIUM NEUTRAL CITATION: | [2016] VSC 439 |
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CRMININAL LAW – Sentence – Murder – Guilty plea – Brutal attack – Young offender – Disadvantaged background – Alcoholism – Poor prospects of rehabilitation – Limited remorse – Sentence of 20 years imposed – Non-parole period of 16 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr John Champion SC | Office of Public Prosecutions Victoria |
| For the Accused | Mr Anthony Brand | Slades Parson Lawyers |
HER HONOUR:
Robert Marshall, you have pleaded guilty to the murder of Christian Williams on 18 November 2014 in Dandenong Park, Dandenong. You were arrested on 27 November 2014 and you have been in custody since that time.
You murdered Mr Williams by beating him to death. Mr Williams was a homeless man sleeping in the park where you were drinking with your friends, and your attack on him was entirely unprovoked. He died pointlessly and tragically, in terrifying circumstances.
You were 21 years old at the time.
Circumstances of the offending
The facts upon which you are to be sentenced are set out in the Prosecution Opening. You do not challenge the matters alleged against you.
Briefly described, the circumstances of your offending are as follows.
In the afternoon of Tuesday, 18 November 2014, you received a Facebook message from an acquaintance inviting you to join him and a few others in Dandenong Park to drink and socialise.
You arrived at the park at approximately 4.00pm and joined the others. You and your friends drank and socialised until around dusk when the alcohol ran out. Five of you walked to Dandenong Plaza, where two wine casks were purchased. You left the Plaza and returned to the park with the alcohol.
Dandenong Park has a Soundstage, which seems to be a popular spot for people to congregate. By the time you returned to the park, Mr Williams had installed himself on the top right hand side of the Soundstage and was listening to music. Being homeless, he had also set himself up to sleep there. For a while, a couple of other people sat with Mr Williams, while another small group, including you, sat at the bottom of the Soundstage talking among yourselves.
At some point, you walked up the stairs of the Soundstage and stood over Mr Williams, demanding his wallet and mobile phone. You then hit him about the head a number of times, unprovoked. You were physically separated from Mr Williams, who took off towards the Princes Highway, obviously scared and already injured.
You made to go after Mr Williams, but one of your group, Rex Lepupa, attempted to restrain you. The two of you fell from the Soundstage. You got to your feet and ran after Mr Williams, yelling, ‘He’s going to the cops’. You caught Mr Williams near some bushes north of the Soundstage and began punching him again. Lepupa, and another member of your group, Sam Sua, ran after you.
By now, Mr Williams was pressed up hard against the bushes and had his hands out in an attempt to protect himself from you. You stood over him and punched him four to five times. He did not fight back. Lepupa again attempted to restrain you but Mr Williams did not get up or attempt to get away. By this time he had significant swelling to his face.
Following this second assault, you dragged Mr Williams from the bushes and forcibly walked him back in the direction of the Soundstage. While this was happening, Sua attempted to strike Mr Williams on the face. He missed, but connected with his second and third attempts. Mr Williams began crying, asking, ‘What did I do?’.
You then took Mr Williams to a position directly behind the Soundstage and continued to hit him about the head with your fists. When he fell to the ground you sat on his chest, pinning one of his arms with your leg and his other arm with one of your hands. With your free hand you repeatedly punched him in the face and the head with substantial force.
Mr Williams lost consciousness and you continued to punch his motionless body. You also put your hands around his neck and strangled him briefly. Lepupa tried to pull you off Mr Williams saying, ‘That’s enough, that’s enough’, but you broke free of Lepupa and continued to punch Mr Williams in the face, which was now covered in blood.
Eventually, you got off Mr Williams, who remained motionless. Taking hold of one foot in each hand, you dragged him to a more discreet area of the park behind the Soundstage. Two of your friends came towards you as you were standing near Mr Williams. Lepupa said, ‘Look Bro, look what you’ve done, you killed him’. You laughed and said, ‘I don’t care’. You then stomped on Mr Williams’ face, stomach and chest with such force that the imprints of your shoes were left on his body.
You told your friends not to call an ambulance, because it would attract the attention of the police. You told them never speak of the incident again. You then left the park.
At 4.10am the following morning, Mr William’s body was found by a person walking their dog in the park. He was pronounced dead by ambulance officers who attended the scene.
The post mortem examination attributed the cause of death to blunt force trauma to Mr Williams’ head, the front and rear of his neck, and severe bleeding to his brain.
Christian Williams was 43 years old at the time of his death. He was a gentle and vulnerable person. When he was ten, he was struck by a car, resulting in a permanent brain injury and facial scarring. He had to learn to read and write again, and was left with an ongoing intellectual disability. He would permanently retain the cognitive functioning of an 11 to 12 year old.
Not surprisingly given his disability, Mr Williams left school young and struggled with drug and mental health issues. However, in around 2002, he formed a relationship which resulted in the birth in 2004 of his son, Jack. Mr Williams loved Jack and was a reliable and steady father figure, taking on the role of Jack’s primary carer. When Mr Williams and his partner separated, Mr Williams was granted custody of Jack and he returned to the family home in Narre Warren to raise Jack with the assistance of his mother.
Unfortunately, in 2013, there was some kind of family dispute, following which it was agreed that Mr Williams should not return to the family home. From then until his death, Mr Williams slept rough in various locations in the Dandenong area.
Nonetheless, Mr Williams remained in close contact with Jack, walking him to and from school daily and returning to the family home every weekend to visit him. He took Jack to swimming lessons and on frequent outings. He continued to be a positive influence on Jack. He was described as being like an overgrown kid who enjoyed doing children’s activities with Jack. He was also described as being loyal, kind hearted and trusting of everybody.
The Prosecution submitted that the murder of Mr Williams is at the high end of the range of seriousness for murder due to the ferocity and brutality of your attack on Mr Williams and its sustained and persistent quality.
I agree. The attack on Mr Williams was unprovoked, it was brutal and protracted, and Mr Williams was vulnerable and defenceless. The fact that Mr Williams was unconscious for part of the attack, that you dragged his lifeless body around and then repeatedly stomped on it, and that you repeatedly dismissed the attempts of your friends to stop you, are aggravating factors. Your response after the third phase of the assault, having been told by Lepupa that ‘it was enough’ was to continue to attack and then drag Mr Williams away to a more discreet area in the park. When told that you had already killed Mr Williams, you said you did not care and proceeded to stomp on his lifeless body and on his face.
I find the objective seriousness of your crime to be at the high end of the range for murder. Yours is a truly shocking crime: brutal and contemptuous. Your conduct can only be described as sickening.
A number of mitigating factors were raised on your behalf, relating principally to your youth and your disadvantaged background.
Your personal history is described in the report by forensic psychologist, Mr Patrick Newton, which was tendered on the plea. It is also described in the report from Forensicare requested by the Court. Dr Ria Zergiotis, a consultant psychiatrist with Forensicare, has provided a detailed psychiatric report based on an assessment carried out in May 2016.
You were born in Moorabbin on 11 of September 1993, the second of six children. Both your parents had an alcohol problem and you experienced violence, neglect and abuse throughout your childhood. Your father was prone to become enraged when drunk and would ‘bash’ you and your siblings on a regular basis. Neither parent provided stable parenting and, according to what you told Mr Newton, discipline veered between harsh abuse for minor infractions and disinterested neglect. Your childhood was marked by fear and distress.
You attended a number of primary schools in the Springvale area and you were described as a good student and sportsperson, playing football throughout primary school. However, you reported to Mr Newton that you often fought with your peers and were regularly subject to disciplinary action. By the time you reached high school, your behavioural difficulties had become severe. You were expelled from Chandler Secondary College in year 7. You then went to Coomara High, repeating year 7, and you left school in year 8 at the age of 13. Towards the end of your schooling you began to consume alcohol and shortly after leaving school you began to use inhalants and solvents.
You have an extensive criminal history. You were in and out of juvenile detention from the age of 13 and your offending escalated from the age of about 16 to include violent offences such as assaults, recklessly causing serious injury and armed robbery. The period that you have spent on remand for this offence is your fourth time in adult prison.
Not surprisingly given your lack of education and criminal history, you have barely worked. You worked as a roof tiler over a period of about a year when you were 17. When you were 21 you did some casual demolition work. The longest you have held a job is about two months.
Mr Newton reports that from your early teens you regularly consumed alcohol at hazardous levels. Your extreme alcohol consumption has resulted in alcohol tolerance, compulsion and physical dependence. He expressed the opinion that alcohol consumption has effectively derailed your development and capacity for adaptation in mainstream society, interfering with your education, your capacity to obtain work-related skills and participate in work, and your capacity to form and maintain secure relationships. So central has drinking been to your life that your sense of identity is focused on drinking and there are few other components to your sense of self.
Mr Newton opines that due to the controlled nature of the prison environment you are now in remission from alcohol use and that custody may provide a positive period of stabilisation for you. However, I note that more recently you told Dr Zergiotis that you have continued to use drugs while in prison.
You clearly have a significant problem with alcohol and you were highly intoxicated when you committed this offence. The fact that you were very drunk on the night in question is not a mitigating factor because your counsel conceded that you knew there to be a correlation between drinking and your propensity to become violent. He told the Court that aside from intoxication you could offer no reason for your actions, that you could not explain why you started assaulting Mr Williams or why you continued to assault him, despite attempts to stop you. Although you were aware of the link between drinking and violence, you appeared to have little control over or ability to moderate your drinking.
This lack of control, which reflects a lack of insight into your own behaviour, raises real concern about your prospects of rehabilitation.
However, your counsel submitted that your sentence should not be ‘crushing’, given your youth and the need to give you some hope for the future.
In appropriate circumstances, the youth of an offender will be a primary sentencing consideration and rehabilitation will be a more important sentencing consideration than general deterrence.[1] A severely disadvantaged background may also be relevant to sentence, as both the High Court of Australia[2] and the Victorian Court of Appeal[3] have recognised that the experience of growing up in an environment surrounded by alcohol abuse and violence may leave permanent marks on a person. This may make the considerations of general and specific deterrence less important in sentencing.
[1]R v Mills [1998] 4 VR 235.
[2]Bugmy v R (2013) 249 CLR 571, 576.
[3]Marrahv R [2014] VSCA 119 [16].
However, in your case, the importance of youth and disadvantage in sentencing is moderated. You have a long history of violent offending, you have spent significant periods of time in custody – including adult gaol – for such offending and you have shown yourself to be largely unrepentant and intractable. Given the particularly brutal and contemptuous nature of your offending in this instance, there is a need to impose a sentence that strongly denounces your conduct and operates as a deterrent to you and to others like you. Notwithstanding your youth and disadvantaged background, denunciation of your conduct and general and specific deterrence remain important sentencing considerations, as does community protection.
Mr Newton wrote that you have become ‘habituated’ to conflict due to your abusive childhood and unstable adolescence, that you have profound difficulty with emotional matters, poor conflict-management skills and that you present a ‘severely heightened risk’ for anger-related problems. Dr Zergiotis described you as having a ‘propensity towards violence’. Your current progress in prison is questionable, as it is marked by substance abuse and fighting.
I consider your prospects of rehabilitation to be poor, despite the fact that you have some family support, having regard to your criminal history, your history of substance abuse, and the matters referred to in the psychological and psychiatric reports, including your propensity to violence.
In your case, the focus on rehabilitation that often informs the sentencing of young offenders must bow to the need for deterrence, the need for denunciation and the expression of the community’s moral outrage, along with the need for community protection.
In reaching this conclusion, I have had regard to your expressions of remorse.
Your counsel submitted that your remorse could be ‘gleaned’ from your preparedness to plead guilty to murder. He submitted that you had personal reasons relating to your youth and the influence of your parents for not pleading guilty earlier and that your plea at a late stage still indicated at least some degree of insight into the wrongfulness of your actions.
Your plea of guilty to the charge of murder was entered at a late stage. However, I accept that your guilty plea indicates some remorse. You also expressed remorse to Mr Newton and Dr Zergiotis.
However, the psychiatric report of Dr Zergiotis records that you told her you pleaded guilty so as to avoid ‘lagging’ on the others present. Dr Zergiotis describes your insight into your behaviour as ‘superficial’ and your remorse as ‘limited’.
I accept the Crown’s submission that your remorse, while to be given some weight, is quite limited. Your expressions of remorse, such as they are, do not greatly improve your prospects of rehabilitation in my assessment. I still consider them to be poor.
I have considered whether there are matters concerning your mental health that affect the sentence that you should serve. Dr Zergiotis found that you meet the diagnostic criteria for Antisocial Personality Disorder and Substance Abuse Disorder in relation to both alcohol and methamphetamine, findings that are consistent with those of Mr Newton. Dr Zergiotis also records that you had a psychotic episode in 2014, but states that this was most likely a drug induced psychosis rather than an evolving schizophrenic illness. Her report makes clear that you did not suffer from an operative psychosis at the time of the offending and that you do not now.
There is no suggestion in the reports of Mr Newton or Dr Zergiotis that you were suffering from any sort of psychosis at the time of your offending, or that your mental health problems are such that they will cause you any additional hardship in custody.
Victim impact statements were filed by Mr William’s sister, Mandy Stevens, and his mother, Lillian Williams. Both were read out in Court.
Ms Stevens described her severe distress and sense of loss, and the fact that she no longer feels safe walking around Dandenong, where she works. She also described the pain of explaining to Mr Williams’ son Jack what had happened and how difficult it will be protecting him from the details of his father’s death in the future.
Ms Williams described both her own anguish and despair and that experienced by Jack. Mr Williams has left behind a young son who feels the loss of his father profoundly.
It is evident that Mr Williams’ brutal death and the circumstances surrounding it have had a devastating impact on his family.
I have had regard to the impact of your offending on Mr Williams’ family in sentencing you.
Sentence
The offence of murder carries a maximum penalty of life imprisonment.
In sentencing you, I must consider the objective nature and gravity of your offending and your moral culpability.
You killed Mr Williams by inflicting upon him a protracted and vicious assault. You remained unmoved by his obvious distress and confusion and by the entreaties of your friends to stop. Your conduct was particularly vicious and contemptuous. You showed complete disregard for Mr Williams’ humanity.
I have therefore found the objective gravity of your offending to be high. While your moral culpability is somewhat diminished by your relative youth and the difficult childhood that you had to endure, it remains high. Your prospects of rehabilitation are poor. Just punishment, denunciation of your conduct and general and specific deterrence are important sentencing considerations. Given your propensity to violence, the protection of the public is also a very important sentencing consideration weighing in favour of a lengthy term of imprisonment.
However, I give your plea of guilty, although late, full weight for its utilitarian value in saving the community the expense and Mr Williams’ family the ordeal of a trial. It is no small matter to plead guilty to murder. I also accept it as an expression of remorse, albeit limited.
Balancing all of the considerations that I have referred to, I sentence you as follows.
Robert Marshall, please stand.
You are convicted of murder. I sentence you to a term of imprisonment of 20 years, with a non-parole period of 16 years.
I declare that, but for your plea of guilty, I would have sentenced you to a term of imprisonment of 23 years, with a non-parole period of 19 years.
I declare that the period of pre-sentence detention reckoned as having been served is 436 days up to but not including today and direct that this declaration and the period be entered into the records of the Court.
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