The Queen v Marshall - [2021] NTSC 83

CITATION:The Queen v Marshall [2021] NTSC 83
PARTIES:THE QUEEN
v

MARSHALL, Benjamin James

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22101591 and 22101593
DELIVERED:  2 November 2021
HEARING DATE:  27 October 2021
JUDGMENT OF:  Kelly J

CATCHWORDS:
Bail Act 1982 (NT), s 7A(1)(c), s 24, s 24(b)(ii), s 24(b)(iii), s 24(b)(iv), s 24(1)(a), s 24(1)(d),
REPRESENTATION:
Counsel:
Crown:D Castor
Accused:M Hubber
Solicitors:
Crown:Director of Public Prosecutions
Accused:Hubber Legal
Judgment category classification:    C
Judgment ID Number:  Kel2119
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Marshall [2021] NTSC 83

No. 22101591 and 22101593

BETWEEN:

THE QUEEN

AND:

BENJAMIN JAMES MARSHALL

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 2 November 2021)

The defendant, Benjamin Marshall, is applying for bail. He has been charged on file ending 591 with supply of a commercial quantity (989.2 gms) of methamphetamine and on file ending 593 with supply of a commercial quantity (500 gms) of methamphetamine.
The Crown facts on file ending 591 (in summary) are that the defendant sourced 989.2 gms of methamphetamine and 998.01 gms of an inert substance and hid the two substances in the back passenger side door of a car. Someone arranged for the car to be transported from Sydney to Darwin by a transport company. When the car arrived in Darwin, police screened it for drugs using a sniffer dog. They found the drugs and then conducted “a covert controlled delivery” of the car. An alleged co-offender, Kurt Bradbury picked up the car and police arrested him. They found the defendant’s fingerprints on the rear view mirror and on the metal trim of the door in which the methamphetamine had been hidden. This was in July 2020. The defendant was arrested for this offence on 13 January 2021, the date on which he was also arrested for the charge on file ending 593.
The Crown facts on file ending 593 (in summary) are that the defendant and two co-offenders, Renata Wegschaider and Anthony Woodman all knew that 500 gm of methamphetamine had been buried underground in bushland in the Darwin rural area. The three of them remained in contact via telephone organising to meet and retrieve the methamphetamine. The defendant and Woodman were in Sydney and Wegschaider was in Palmerston. On 13 January 2021, the defendant travelled from Sydney to Darwin. Woodman was staying at the Coconut Grove Holiday Apartments in a room which had been booked and paid for by the defendant’s wife. Wegschaider picked the defendant up from the airport and they went to the room in which Woodman was staying at the Coconut Grove Holiday Apartments. Then all three of them went to where the methamphetamine was buried, retrieved the methamphetamine and took it back to Woodman’s apartment. Police later arrested them, seized their mobile phones and executed a search warrant in the room where they found the methamphetamine and $4700 in cash. This happened on 13 January 2021.
Mr Hubber for the defendant submits that bail should be granted taking the following matters into consideration.
(a)He submits that the likelihood that the defendant will appear at the next court date is strong and that the risk of reoffending is low [Bail Act 1982 (NT) ss 24(1)(a) and 24(1)(d)] because he now has strong ties to the Darwin community. The defendant’s wife is a law student who hopes to be admitted as a lawyer in 2022. She has relocated to Darwin with the couple’s three children and now has permanent employment with the Attorney General’s Department in Darwin. She has bought a house (subject to a mortgage) in Palmerston and enrolled two of their three children at Durack Primary School. The plan is for the older of the two to attend Palmerston College next year. The youngest child attends the local childcare centre and is due to start the transition program at Durack Primary School next year. I have read a letter from the defendant’s wife outlining these matters in which she says that the children are involved in extra-curricular activities; that the 11 year old in particular has formed close friendships in the community and that she has formed meaningful friendships with parents of her children’s friends. She says she has also made friends with fellow students of her Graduate Diploma of Legal Practice class.
(b)He submits that the interests of the defendant favour the grant of bail in these respects:
(i)   He has a need to be free to obtain legal advice and prepare for his trials on each of the two charges. [Bail Act s 24(b)(ii)]
(ii)    He has a need to be free to support his wife and help her take care of the children given that she is both studying and working full time. [s 24(b)(iii)]
(iii) He is in physical danger in the prison environment. [s 24(b)(iv)] Mr Hubber informed me that the defendant has been assaulted three times while he has been in prison on remand, on each occasion by his alleged co-offender Woodman, or someone on his behalf. I was also advised that prison authorities had intercepted a letter from Woodman threatening to cause further harm to the defendant or send someone to “put him in the bone yard”. [I gather from a google search that “bone yard” is prison slang for protective custody.] The defence hypothesis is that Woodman is trying to put pressure on the defendant to take the blame for the offending which was committed by Woodman.
(iv)   The need for physical protection is stronger in the defendant’s case because he had surgery to his head some years ago after a skull tumour was removed and he also suffers from heart arrhythmia brought on by stress.
The Crown opposes bail. Mr Castor for the Crown submitted that there is a real risk that the defendant will not appear in answer to his bail because his ties to the Darwin community are still tenuous; the Crown case is strong; the likelihood is that the defendant will be convicted; and, if convicted, will be sentenced to a substantial term of imprisonment with a 70% non-parole period. (The amount of methamphetamine involved in each charge is substantial – 12 ½ times and 25 times a commercial quantity respectively.) This gives the defendant a strong incentive to flee. Mr Castor pointed out that the defendant’s wife and family have only recently moved to Darwin; the only reason for his wife to be in Darwin is because the defendant is in prison here facing these charges; and they can just as easily move back to Sydney where they lived for many years.
Mr Hubber for the defence did not accept that there was a strong Crown case in relation to either charge. In relation to file ending 591, the alleged co-offender, Wegschaider, has pleaded guilty and agreed to give evidence but Mr Hubber contended that her statement to police was not particularly useful. Mr Castor did not dispute this but said the Crown case did not depend wholly or even mainly on the evidence of Wegschaider.
In my view the Crown case must be assessed as reasonably strong. The methamphetamine was found in the room occupied by Woodman and, on the Crown facts, that room was booked and paid for by the defendant’s wife. The Crown facts also recite that the three alleged offenders stayed in contact via telephone organising to meet and retrieve the methamphetamine and that police seized all three mobile phones. In relation to file ending 593, the defendant’s fingerprints in the car, especially on that part of the car where the drugs were hidden, must be seen as fairly strong evidence.
Mr Castor also submits that there is an unacceptable risk of reoffending, pointing to the defendant’s substantial criminal history in New South Wales and to the fact that at the time of the first alleged offence (on file ending 591), the defendant was on parole for offending in New South Wales.
Mr Hubber for the defence submits that on the proposed bail conditions – that the defendant live in the family home with his wife and children and be subject to electronic monitoring – there is little risk of reoffending because the defendant would have an incentive not to offend in those circumstances. However, he lived with his wife and family in Sydney for many years during which he committed a number of drug and weapons offences and offences of violence.
Because of the nature of the charges, this is a matter in which the presumption is against bail [Bail Act s 7A(1)(c)]. That means that the onus is on the defendant to show that bail should be granted taking into account the matters set out in s 24 of the Bail Act.
I do not think the defendant has satisfied that onus. The combination of the reasonably strong Crown case, especially on file ending 591, and the seriousness of the charges which will necessarily mean a lengthy prison sentence with a substantial period to be served, provide the defendant with a strong incentive to flee the jurisdiction to avoid facing trial. That risk is reinforced by the defendant’s criminal history. On balance, I do not think the risk is effectively ameliorated by the recent move to Darwin by the defendant’s wife and family and the proposed bail conditions of residence at the family home and electronic monitoring. Nor do I think it is outweighed by the other reasons advanced by the defendant for why the defendant needs to be at liberty.
The trial on one matter has been listed on 2 August 2022, with a T2 on 4 April. The other matter is still in the Criminal Callover list awaiting allocation of a trial date. That is a substantial period on remand, but there is no suggestion that the period the defendant will spend on remand is likely to be greater than the period he will be required to serve if found guilty.
I acknowledge that there is a risk to the defendant’s safety in prison but, as Mr Castor for the Crown pointed out, if the alleged co-offender is threatening to send others to harm the defendant (as he threatens in the letter intercepted by authorities), that risk is not confined to the prison. There is no reason why that threat might not be carried out in the community as well. Further, the prison authorities have a duty to ensure the safety of inmates and, unpalatable though it may be, the defendant always has the option of requesting to be placed on protection.
Bail is denied.
----------