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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