R v Marshall

[2020] NSWDC 463

District Court

New South Wales

Medium Neutral Citation:

R v Marshall [2020] NSWDC 463

Hearing dates:

18 June 2020

Decision date:

18 June 2020

Jurisdiction:

Criminal

Before:

Haesler SC

Decision:

Sentenced to a term of imprisonment of 3 years 2 months. Non parole period of 1 year 8 months.

Catchwords:

CRIME – Aggravated Robbery and Use Corporal Violence.

SENTENCE - Relevant factors on sentence – long history of robbery - should have been in rehab - on parole - spontaneous offence - intoxicated - caught almost immediately - a cry for help – institutionalised.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Callaghan v R [2006] NSWCCA 58

R v Henry [1999] NSWCCA 111 (1999) 46 NSWLR 346

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

Veen v The Queen (No 2) (1988) 164 CLR 465

Category:

Sentence

Parties:

Michael Ian Marshall (the offender)
Director of Public Prosecutions

Representation:

Solicitors:
Mr L Miakhel, Aboriginal Legal Service (NSW/ACT) Limited (for the offender)
Ms K Rankin (for Director of Public Prosecutions)

File Number(s):

2019/00264149

SENTENCE – EX TEMPORE REVISED

Introduction

1. Michael Marshall is now in his early 30s. He has spent more than 70% of his adult life in gaol primarily because he has committed robbery offences. He went into juvenile detention for a robbery offence while still a teenager.

2. On 13 January 2009 he was released to parole after serving a non‑parole period for a robbery offence. He went to live with his mother in the local area. Initially he was doing very well. A number of personal problems led to his relapse into drug use. It is not at all unusual that when a person with Mr Marshall’s background is making forward progress that there will still be some backward steps.

3. His parole officer was alert and alive to those possibilities and arrangements were made for Marshall to attend a residential drug rehabilitation centre, Oolong House. Before admission Oolong House requires a person undergo detoxification. Marshall was unable to enter the program at that time. Instead of going through the detox process and instead of taking up in an active way the advice to attend another local drug rehabilitation centre Marshall effectively gave up. It is the unfortunate fact that his default position when hit with setbacks in his life is to relapse into alcohol use and then commit a robbery offence and that is what happened.

4. Marshall is now facing another sentence for Aggravated Robbery and Use Corporal Violence: s 95(1) Crimes Act 1900 - maximum penalty 20 years imprisonment.

5. Courts are urged when sentencing those convicted, or those who admit to robbery offences, to impose deterrent sentences in the hope that the severity of a sentence will deter them or others from committing similar offences. That principle is one of our purposes of sentencing but severe sentence have had no impact on Marshall in the past. He was aware of the consequences of his actions. And although his crime may be regarded as a cry for help he was acutely aware there were alternative options and ways of getting help other than committing another robbery.

6. Wollongong’s precise and accurate CCTV did not prevent this crime but it did allow for the facts of the matter to be put before the Court in simple form supported by photographs.

7. The victim in this matter left a hotel near Wollongong Railway Station after purchasing a six pack of beer. He was walking down the walkway to the railway station when he was approached by Marshall who said, “Hey man can I have a beer?” The victim replied, “Yeah no worries.” He gave Marshall a beer. Marshall said, “Can I have your wallet, give me ya fucking wallet.” The victim responded, “I don’t have my wallet on me.” He turned his head and he was punched to the side of his head by Marshall’s right fist. That corporal violence resulted in a 1 centimetre laceration below the right eye with some bleeding depicted in the photograph.

8. The offender then took the six pack of beer and walked away. His victim followed him and called Triple‑0. It was only a matter of minutes before police were on the scene and Marshall was arrested. It was obvious to the police he was intoxicated.

Objective Seriousness

9. The offence appears to have been spontaneous and thoughtless. Marshall was thoughtless as to the consequences both to his victim and himself. He was offered a beer by his victim but he chose to punch him, demand his wallet and take the six pack. The offence occurred in a public place near a railway station. Matters such as this near public transport can actively discourage the public from using public transport and cause great consternation in the community.

10. The punch while serious was not disabling and the injuries, thankfully, were minor. Only a small amount of property was taken. Nevertheless in the context of the offender’s criminal history it was, and remains, a serious offence. The maximum penalty is 20 years imprisonment.

11. His criminal history indicates this is not an uncharacteristic aberration. It demonstrates a continuing disobedience to the law. His history cannot result in a sentence disproportionate to the seriousness of the offence for sentence but a more severe penalty is warranted. Additional focus has to be given to retribution and the protection of the community: Veen v The Queen (No 2) (1988) 164 CLR 465.

12. As I indicated Marshall was in juvenile detention for robbery and he has been gaoled for robbery in New South Wales and the ACT. He was on parole for robbery. The commission of an offence while on parole justifies harsher punishment to recognise the breach of the clear promise, made to secure early release, to be of good behaviour and obey the directions of the Parole Service. Mr Marshall in his frank evidence today acknowledged that breach.

13. There is no clear case which governs when I should commence this sentence. It is recognised that there must be some additional punishment for the breach of parole. The circumstances that bring an offender before a Court after parole has been revoked do not permit a single absolute rule. I have a discretion that I cannot double count in matters in aggravation of sentence: Callaghan v R [2006] NSWCCA 58. His work on parole this time needs to be recognised. He was doing relatively well, until the commission of this offence and the long road to rehabilitation may have in it the occasional relapse. As I will increase the otherwise appropriate sentence because of the breach I propose to commence this sentence from the date of arrest to avoid double counting.

14. Mr Miakhel, solicitor, Aboriginal Legal Service appears for the offender. He provided me with calculations about the time Marshall has spent in custody. The amount of time Marshall has spent in gaol is distressing not just for himself but for the Courts and the community. Marshall makes the same criminal mistakes time and time again and despite his obvious lack of success and the inevitable consequences, continues to offend. The evidence establishes what is commonly known as institutionalisation. His custodial record indicates that he doesn’t do too well inside either.

15. He will receive, as he must, individualised treatment by me. Every offence and every offender is individual but the Court takes guidance from a number of sources. They include here a maximum penalty, the decisions of other Courts, particularly those designed to give guidance such as R v Henry [1999] NSWCCA 111 (1999) 46 NSWLR 346. I must have regard to all of the purposes of sentencing and I cannot, despite its failure, in this case, ignore deterrence. Ultimately I have to impose a sentence which reflects the objective seriousness of what was done and in particular, that must recognise the harm done to the individual victim and the community.

16. While not prescriptive the Henry guideline will be considered. Marshall is no longer young. He has a lengthy criminal history; that history denies him leniency.

17. Mr Marshall gave evidence today. He was frank in telling me that he had stuffed up and it appears he was looking for help. Rather than take the help to which he had been directed the help he sought was to remove himself from the community one more time. He knew he would end up in gaol.

18. He struggles to answer himself why he continually re‑offends. He has noble ambitions to help others and to be a proper father to his son. He told me he is “over it” and is aware that he is wasting and has wasted much of his life in gaol. But noble statements have to be followed up by practical action.

19. To his victim he says “Sorry Dude!” He also regrets what he has done to himself and problems caused by the separation from his son. In custody he is prepared to realise there are better ways than using drugs and alcohol. His drug and alcohol use cannot excuse what he did but if he is able to deal with that problem both in custody and on release it may offer him some hope for the future.

Background

20. Mr Marshall’s father was an Aboriginal Australian but he was raised by his mother without much contact with his father’s family. That has and continues to cause him significant distress. Particularly as his father died while he was still young and they had little opportunity to have contact. No one’s family is, as one Corrective Services officer says, “uneventful.” Marshall received proper care from his mother and stepfather but there were problems reflected in the evidence, both oral and written, before me.

21. When he was still a young teenager he took up the use and abuse of illicit drugs well before he was old enough to make any rational choices. His path was set by the commission of serious criminal offences while a child and a period in detention when he was 16. That first period of custody and what happened to him while he was detained has had a continuing impact on him.

22. His background led to confusion and difficulties in his relationship with his mother. His lengthy periods of extended custody have left a mark. All the material before me indicates his capacity to mature and learn from experience was compromised.

23. That background continues and remains relevant despite his history of offending: Bugmy v The Queen (2013) 249 CLR 571

24. It can explain why he resorted to his ‘default position’ of robbing others and following up demands with violence of the sort shown here. He seems to have an inability to control this type of response when faced with frustrations that arise in the course of what most regard as normal community life. This may be because Marshall has never had an opportunity since a young teenager to live a normal community life.

25. This, in turn, creates a conundrum. Marshall does not have the personal resources to make normal moral decisions but his wrong choices generally involve serious crimes being committed against others. How then do I protect the community from the offender?

Submissions

26. Mr Miakhel submits Marshall should be given every opportunity to take advantage of programs in gaol and in the community by finding of special circumstances.

27. Ms Rankin, solicitor for the Director, says that that may be the case but the Court must be guarded about his prospects and that without a plan and Marshal sticking to it, the real possibility is that he will offend again in a like manner and be returned to custody.

Synthesis

28. I must ask a question relevant to every sentencing exercise: how do I protect the community from the offender? Marshall must be removed from the community for a period but that period cannot exceed what the objective facts of his crime require. If he continues on the same pattern, and that pattern of past behaviour appears ingrained he will spend the rest of his life in custody. He will not be able to reach his goal of helping others and he will not be able to help his son grow up to be a man.

29. There was some progress on the last occasion he was released; I hope he can build on that early success. Marshall is still young. He cannot be kept in gaol forever. It is in the community’s interest that every attempt be given to help him to learn to live in normal community life. There must be a sufficient period of conditional and supervised liberty to ensure the protection of the community and minimise the chance of recidivism.

30. I would recommend that if at all possible he attend a full-time residential drug and alcohol facility. I have structured the sentence so that his release to parole can be supervised for as long as possible and enable a period in some form of residential rehabilitation. I cannot bind the State Parole Authority but I presume that those arrangements can be made. I have a lot of respect for the people at Oolong House and I am aware of their success stories and their failures.

31. The evidence relating to his need for drug and alcohol treatment, assistance in the community, helping leading a normal community life perhaps with assistance from Connections Justice Health all provide a basis for a finding of special circumstances. I am mindful of the requirement that the minimum period should also reflect the gravity of this offence and the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

32. These remarks have been informed not just by the submissions of Mr Miakhel and Ms Rankin but also by a very helpful report of Ms Hubner, psychologist. She recommends targeted psychiatric and psychological intervention; Real Understanding of Self Help (RUSH), Dialectical Behaviour Therapy (DBT) and engagement with EQUIPS programs.

33. The sentence will be reduced by 25% to reflect the early guilty plea: s 25D Crimes (Sentencing Procedure) Act. The plea has other values including to a limited degree his expressed remorse for his victim.

34. Given Marshall did relatively well as a parolee, given his history and background, there will be reversals when he is released but every effort must be undertaken by him and others to avoid those reversals he cannot be allowed to hurt others in the community by the commission of more robberies.

35. I am alert to the possibility that the past pattern of behaviour may continue and I must admit to a degree of cynicism when it comes to statements that next time it will be different. The bottom line is a common sentencing dilemma - how to marry two competing and different considerations:

1. The first is it is Marshall’s and the community’s interest that he be given every assistance in custody and on release to change and learn how to change.

2. The second is that a fellow citizen was robbed with violence and his dignity and the community harm of such offences must be reflected by appropriate punishment.

36. Giving full effect to the plea of guilty and its utilitarian value that requires, in this case, a sentence of three years and two months but a substantial finding of special circumstances.

Orders

37. Marshall, you are convicted. Taking into account a finding of special circumstances, you are sentenced to a term of imprisonment of 3 years 2 months. The formal orders of the court are: There will be a non-parole period of 1 year 8 months to commence on 24 August 2019 and expiring on 23 April 2021. You will be eligible for consideration for release to parole on 23 April 2021. The balance of the sentence of one year and six months will commence on 24 April. The total sentence three years and two months will expire on 23 October 2022

38. A copy of the report of Ms Hubner (exhibit 1) is to be forwarded to Corrective Services with the warrant.

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Decision last updated: 20 August 2020