R v Marshall

[1999] NSWSC 1267

CITATION:	R v Marshall [1999] NSWSC 1267
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	L4/98
HEARING DATE(S):	17 December 1999
JUDGMENT DATE:	20 December 1999
PARTIES :	Regina v Keith Reginald MARSHALL
JUDGMENT OF:	Studdert J

COUNSEL :	P. Thompson (Crown) A. Webb (Applicant)
SOLICITORS:	Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Applicant)
CATCHWORDS:	Sentencing; application for determination concerning life sentence for murder; seven stab wounds to body of deceased; application granted; sentence of nineteen years penal servitude with minimum term of thirteen years six months; Sentencing Act, s 13A.
ACTS CITED:	Sentencing Act
CASES CITED:	R v White (unreported, NSWCCA, 23 June 1998) R v Stephens [1999] NSWCCA 80 R v Rothapfel (unreported, NSWCCA, 4 August 1992)
DECISION:	See para 27

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

STUDDERT J

Monday 20 December 1999

98/004 REGINA v KEITH REGINALD MARSHALL

JUDGMENT

1   HIS HONOUR: This is an application pursuant to s 13A of the Sentencing Act for the determination of a minimum term and an additional term.

2 In June 1989 the applicant, Keith Reginald Marshall, stood trial charged with the murder of a thirty-eight year old man, Richard Stanley Burridge. The jury found him guilty of that offence and on 14 July 1989 I sentenced the applicant to penal servitude for life. It was necessary, of course, as s 19 of the Crimes Act then provided, that such sentence be imposed unless it appeared that the applicant’s culpability for the crime was significantly diminished by mitigating circumstances. I did not find the applicant’s culpability to be significantly diminished. Before sentencing the applicant I had regard to evidence that the prisoner had been drinking intoxicating liquor prior to the commission of the offence but in my remarks on sentence I stated:

“The evidence does not establish on the probabilities therefore that the prisoner was affected by intoxicating liquor at the time that this murder was committed. The evidence does not establish on the probabilities any circumstance whereby the prisoner’s culpability for the crime of which the jury has found him guilty was significantly diminished. No mitigating circumstances having been established, I have no alternative but to sentence the prisoner to penal servitude for life.”

3   The applicant appealed to the Court of Criminal Appeal against his conviction but that appeal was dismissed.

4   It is now over ten years since the applicant was sentenced, so there is no barrier to this application by reason of s 13A(3) of the Sentencing Act.

5   Under s 13A(4A) I am required, in considering the application:

“to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences wherever committed, of which [the applicant] has been convicted at any time…”

The circumstances surrounding the offence

6   Pursuant to Practice Note 57 a statement of the facts of the case was filed and served upon the applicant disclosing the following circumstances:

“(i) Background to events of Friday, 13 May, 1988

9. At the relevant time the applicant resided at 2/256 Stanmore Road Stanmore with a flat mate Helen Miles. Also temporarily resident with them was the step sister of Ms Miles.

10. The victim Rick Burridge resided with his de facto Glenda Browne (‘Silky’) at Unit 1 18 Middleton St. Petersham.

11. The persons named in the two preceding paragraphs were all well acquainted with each other.

(ii) Events of 13 May, 1988

12. At about midday on 13 May, 1988 the applicant visited the Petersham unit where the victim, Ms Miles and Ms Browne were present.

13. After a conversation in the unit the applicant and Mr Burridge went outside and were observed by a nearby resident to be involved in a scuffle in the street. The applicant was seen to be jabbing at Burridge with a knife.

14. When they returned to the unit on this occasion Ms Miles saw that the applicant had two knives in his pocket and both men were observed to have blood on their hands. The applicant left the unit early in the afternoon and subsequently returned to his Stanmore flat where he was visited by a man named Riley.

15. Meanwhile at the Petersham Unit Burridge and the two females continued drinking alcohol as they had been doing earlier in the day.

16. In the late afternoon the applicant demonstrated to his visitor Riley his skill with knives before both men left the flat shortly before 7.00 pm en route to the Petersham unit.

17. The applicant forced his way into the unit after smashing at least one of the glass panes on the front door and once inside was confronted by Rick Burridge.

18. The applicant demanded that Helen Miles come back to his place and was told by Burridge to ‘piss off and leave her (Helen Miles) alone’.

19. A struggle then took place between the two men during which the applicant inflicted at least seven knife wounds to the body of the victim before leaving the scene. He visited at least one hotel where he consumed alcohol before returning to his Stanmore flat.

20. Police and ambulance officers who arrived at the scene at about 7.30 pm observed the victim lying on his back in the front bedroom of the unit with his legs in the hallway.

21. He ceased breathing shortly thereafter and attempts to revive him by police and paramedics at the scene and on the way to Royal Prince Alfred Hospital failed as did further resuscitation attempts at the Hospital.

22. At 2.00 am on 14 May, 1988 Detectives went to the applicant’s Stanmore flat and were eventually allowed into the flat after he had initially prevented them from gaining entry.

23. After informing the applicant that he was under arrest for inflicting the fatal wounds on Burridge Detective Halpin asked him the location of the knives he had used and received the response ‘Silky’s got them’.

24. Detective Bramann then showed him two knives which he had found in the flat which appeared to be bloodstained and asked him whether they were the knives he had used. The applicant’s response was ‘I haven’t seen those for months’.

25. He was then transported to Petersham Police Station where he consented to a blood sample being taken.

26. Commencing at 4.55 am and concluding at 7.20 am the applicant took part in a six page signed Record of Interview in which he denied stabbing Rick (Burridge) and claimed that he had seen ‘Silky’ (Glenda Browne) stab him apparently accidentally, while he and Burridge were scuffling with each other…

27. At a post mortem examination of the deceased carried out by her early in the morning of 14 May, 1988 Dr Sylvia Hollinger observed seven stab wounds to the body of the victim located as follows: (1) & (2) right side of upper chest (3) & (4) to the right groin one of which wounds was wide and gaping and had entered the inferior vena cava; (the large vein which enters the right atrium) causing extensive internal bleeding, (5) & (6) to middle of abdomen and (7) to the left groin. The Doctor certified the cause of death to be multiple stab wounds.

28. There was evidence at trial about the blood alcohol level of the applicant and the deceased to the effect that the respective levels were .06 and .210. It should be borne in mind that the applicant’s blood was obtained some nine hours after the offence and he consumed alcohol at a hotel(s) after leaving the murder scene.

29. There was also evidence in the Crown case at trial from a Mark Madigan, who shared a cell with the applicant, to the effect that after first stating it was ‘Silky’ who had stabbed Burridge, the applicant admitted a couple of days later that he had done the stabbing as he was ‘going to fix Ricky for good’. He added that he was trying to ‘pin it on Silky’.

30. In his case at trial the applicant made a statement to the jury which was substantially in accord with his record of interview to police and included the claim that he had not stabbed the victim but Silky apparently had when she lunged at them while they were scuffling.”

7   As required under Practice Note 57 the applicant responded to the service of the statement of facts, indicating he accepted such statement save as to the following:

“(i) The ‘scuffle’ referred to paragraph 13 did not occur on the street but in the front yard of the premises.
(ii) The applicant denies demonstrating his skill with knives to Riley as alleged in paragraph 16.
(iii) The applicant denies that he forced his way into the unit as alleged in paragraph 17.
(iv) The applicant denies he prevented or attempted to prevent the Detectives from gaining entry to the flat as alleged in paragraph 22.
(v) The applicant denied he ‘claimed that he has seen Silky (Glenda Browne) stab him apparently accidentally’ in the Record of Interview referred to in paragraph 26.”

8   For present purposes I do not consider anything turns on the matters disputed by the applicant in the above paragraphs (i) to (iv). As to (v), the following questions and answers are recorded in the record of interview which police conducted with the applicant on 14 May 1988:

“Q29. What happened when you went back to the unit about teatime last night?

A. I said Are you there Helen and Rick came out with an iron bar and told me Helen’s not going home she’s staying here and told me to piss off. And then started to swing the bar. It struck me on the hand and the head. Silky came running down the hall brandishing a knife I tried to avoid the knife and in the scuffle Silky must have stabbed him instead of me.

Q30. Did you actually see Silky stab Rick with a knife?

A. Yes.

Q31. What did this knife look like?

A. It was a kitchen handle knife. Not as long as that bone handled one you showed me, about ten inches long.

Q32. How many times did you see Silky stab Rick?

A. Once.

Q33. Where on Rick’s body did Silky stab him?

A. I seen her lunge with the knife, I don’t know if it actually penetrated.”

9   I observe that each page of the record of interview, including the page upon which the above questions and answers are recorded, was signed by the applicant and I accept that the applicant made the responses attributed to him by the answers to the above questions.

10   I have regard to the circumstances surrounding the offence as outlined in the above statement of facts, save for the matters not accepted by the applicant as above identified. I do, however, have regard to the record of interview and the questions and answers thereof above set out. Plainly the applicant sought to convey to the police that it was “Silky” who wielded the knife.

The applicant’s convictions

11   The applicant was born on 13 March 1938 so that he is now sixty-one years of age. He has been in custody continuously since his arrest on the relevant murder charge on 14 May 1988. He has a formidable criminal record beginning at the age of nineteen. In all there are forty convictions recorded against the applicant; they include many offences for dishonesty, convictions for robbery, assault with intent to rob, assault, assault police, and I note that in July 1979 the applicant was sentenced to five years penal servitude in the Central Criminal Court for two offences of maliciously inflicting grievous bodily harm. The statement of facts presented to the sentencing judge in 1979 was tendered on this application. That statement discloses that the applicant used a knife to stab two victims on 26 December 1978. Fortunately they survived, but it is disturbing that the applicant did not learn from his earlier experience not to use a knife as a weapon again.

12   The applicant has many convictions for offences under the Motor Traffic Act. In all, the applicant’s criminal record is a bad one, and it reflects a problem with alcohol abuse.

Report of the Serious Offenders’ Review Council

13   I have had the advantage of considering a report from the Serious Offenders’ Review Council. This gives some picture as to the applicant’s progress whilst he has been in prison. He has thus far served his sentence in a number of institutions that include Parklea, Lithgow and Long Bay. In December 1997 he was placed at the Industrial Training Centre at Long Bay where he enjoys now a C1 classification. His progress in prison appears to have been reasonable but I do note references that he does not seem to have acknowledged his problem with alcohol and I do note further that in 1993 he was asserting his innocence of the murder and was blaming his wife for it.

14   In March 1998 an assessment committee reviewed the applicant at the Industrial Training Centre and reported:

“His work and conduct reports were, as usual, good. His damaged musical instruments had been repaired and he was again teaching music. [The applicant apparently has skill as a musician but his instruments had been damaged by other inmates.] He was still however refusing to have contact with drug and alcohol and psychological services. The committee stressed the importance of his contacting the services for assessment and if necessary counselling.”

15   The Serious Offenders’ Review Council concluded its report dated 13 October 1998 as follows:

“In the event that the Supreme Court grants Marshall’s application for the re-determination of his sentence, then the Serious Offenders Review Council will develop a plan for his management during the remainder of any minimum term imposed. Subject to satisfactory behaviour, conduct and attitude, Marshall will be progressively reduced in security classification leading, hopefully, to his inclusion in unescorted, external, pre-release leave, such as Day Leave and Work Release programs, in preparation for his eventual return into the community.”

16   A supplementary communication from the Serious Offenders’ Review Council dated 26 October 1999 contained more recent information as to the applicant. The case officer’s assessment of 26 November 1998 is in these terms:

“Inmate Marshall cooperates very well and is not a problem Inmate. He is well groomed and looks healthy. He seems to be a Jack of all Trades and participates in many activities, mainly the Gaol Music Band. He keeps contact to his family through phone calls and gets visits.”

17   The supplementary material was generally favourable, although again I note an entry as late as 3 December 1998 when the applicant was maintaining his innocence in respect of the murder.

18   The applicant’s conduct overall in the prison system in the period of some eleven years seven months that he has been in custody for this crime has been good. Mr Webb, who appeared on the applicant’s behalf, submitted that the applicant has made a useful contribution in prison life. He has learned the skill of hairdressing, having recently been issued with a licence, he has utilised his skills as a musician and has contributed to prison concerts and he has, according to references tendered, worked well in various other prison activities.

19   Mr Taylor, psychologist, assessed the applicant in April 1999. The two features I mentioned earlier appearing from his prison history are reflected again in the psychologist’s report. The first of these is the applicant’s denial that he has had an alcohol problem. The second of these features is that when he saw Mr Taylor he was still denying that he had killed the deceased and he was still asserting that the guilty party was his de facto wife. In blaming his wife I observe he appears to have shifted blame away from the woman referred to in his record of interview as “Silky”.

20   Mr Taylor commented upon the failure of the applicant to accept responsibility for his crime, and expressed an opinion as to the risk of the applicant re-offending if released:

“Mr Marshall was able to discuss his plans for the future, should he be released. He stated that he still has contact with his sister and stated that he would be able to live with her. He is also still very much involved in his music and feels that he would have the opportunity to play professionally if he is released.
Actuarial assessment of his potential to reoffend was assessed at being in the average range. This assessment however does not take into account his present age or aspects of his behaviour over the last ten years in gaol. When these are taken into account it seems very likely that his potential to reoffend would be lower than the assessment provided by the Statistical Information on Recidivism Scale.
By way of conclusion then I was unable to find any indication from the information available to me to suggest that Mr Marshall would reoffend in the future. The aspect of his stated alcoholism is a matter which could properly be monitored as could other aspects of his functioning.”

21   The evidence indicates that the applicant has not yet faced up to the fact that he murdered the deceased. There are the various records that refer to this, and there is the report of Mr Taylor. When last he gave evidence before me following his conviction and before sentence in 1989 he did not acknowledge his guilt, and he claimed that it was Silky who had the knife. On the present application he has given no evidence.

22   The lack of contrition is a relevant matter for me to consider on this present application, impacting as it does upon the applicant’s rehabilitation: see R v White (unreported, NSWCCA, 23 June 1998) and R v Stephens [1999] NSWCCA 80. It is also relevant that the applicant, notwithstanding his obvious alcohol problem in the past, has not freely acknowledged the problem and submitted adequately to counselling for it.

23   In considering this application I have regard to all the various matters addressed in s 13A of the Sentencing Act.

24   It has not been contended by the Director of Public Prosecutions that it would be inappropriate to grant this application. Indeed, the application of the applicant is not opposed, and after reflection I have come to the conclusion that I should accede to the application. During the remainder of the minimum term which I intend to fix, in the interests of the applicant’s rehabilitation, he should undertake further counselling for alcohol abuse and attention should be directed to what appears to be a failure on his part to accept his guilt. Doubtless the applicant’s progress in these areas will be assessed when he is being considered for parole in due course.

25   The objective features of this crime I regard as very serious. There were a number of knife wounds as disclosed in the post mortem findings I recorded earlier. The conclusion is inescapable that the applicant must have inflicted those wounds at the very least with an intention to cause serious bodily injury and the jury’s verdict demonstrates that the jury so found. The Court of Criminal Appeal has repeatedly stressed the abhorrence with which the use of a knife as a weapon is regarded: see, for example, Rothapfel (unreported, NSWCCA, 4 August 1992).

26   I have regard to Mr Taylor’s opinion concerning the risk of the applicant re-offending. I have regard to sentences imposed by this court in other crimes of murder, whilst recognising that each case depends very largely upon its own particular facts.

27   I have concluded that the appropriate sentence in this case is one of nineteen years penal servitude and I now fix a minimum term of thirteen years six months and an additional term of five years six months. The sentence is to be backdated to 14 May 1988 since which date the applicant has been continuously in custody for this crime. The minimum term will thus expire on 13 November 2001. The additional term of five years six months will commence on 14 November 2001 and expire on 13 May 2007. I specify 14 November 2001 as the first date upon which the applicant is to be eligible for release on parole.

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Last Modified: 12/21/1999