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[2022] ACTSC 102
Supreme Court of the ACT
2022-05-05
Berman AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: R v Marshall (No 2)
Citation: [2022] ACTSC 102
Hearing Date: 5 May 2022
Decision Date: 5 May 2022
Before: Berman AJ (a) For the offence of possessing a drug of Decision: dependence (CC2021/6701) I sentence Mr Marshall to the rising of the Court.
(b) For the offences of damage property (CC2019/11212) and aggravated burglary with intent to commit theft (CC2019/11209) I re-open the sentences.
(c) I cancel the good behaviour orders.
(d) For the offence of damage property I impose 12 months’ imprisonment from 25 May 2020 to 24 May 2021.
(e) For the offence of aggravated burglary with intent to commit theft I impose 18 months’ imprisonment from 25 May 2020 to 24 November 2021.
(f) For the offence of aggravated robbery (CC2021/6700) I impose 3 years’ imprisonment from 21 November 2021 to 20 November 2024.
(g) I set a nonparole period of 21 months, from 21 November 2021 to 20 August 2023.
Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery – found guilty in jury trial – in company and armed with offensive weapon – offender was subject to good behaviour orders associated with suspended sentences for damaging property and aggravated burglary with intent to commit theft – prospects of rehabilitation guarded – youth as a mitigating factor – difficulties in childhood and with mental health issues – importance of general and specific deterrence – sentence of imprisonment imposed for aggravated robbery – good behaviour orders cancelled – retrospective sentences of imprisonment imposed for offences subject to suspended sentence CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – possessing a drug of dependence – where offender had indicated he would plead guilty – where drug was for personal use only – sentenced to the rising of the court
Legislation Cited: Crimes Act 1900 (NSW), s 94 Criminal Code 2002 (ACT), ss 310, 312, 403 Crimes (Sentence Administration) Act 2005 (ACT), s 110
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Henry [1999] NSWCCA 111; 46 NSWLR 346
Parties: The Queen (Crown) Jackson Nathanial-Jai Marshall (Offender)
Representation: Counsel S Jerome (Crown) T Lee (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number: SCC 218 of 2021 SCC 219 of 2021
BERMAN AJ:
Facts
On 27 June last year, KA went to the Kippax shops at around midday. He was there to meet up, by pre-arrangement, with the offender in this matter Jackson Marshall. KA said that the purpose of the meeting was so that he could collect $100 from Mr Marshall that he owed to a friend of KA’s, a Mr Wilson. There are suggestions that there might have been a less lawful purpose for the two of them meeting - that the amount to be paid was $1,250 and that it involved something to do with the sale of drugs. But in truth it does not really matter why they met up that morning, what matters is what happened when they did.
KA was driving his father’s grey Ford Turbo sedan. He arrived just before midday. After he had parked the car and was sitting in the driver’s seat, the back door was opened and the offender got in, sitting behind KA. The offender was armed with a knife which he held against KA’s throat. Another man, this one with red hair, got into the front passenger side. This man told KA to “get the fuck out of the car”, which, not surprisingly, he did. The red-haired man got into the driver’s seat but he could not shut the driver’s door because KA was standing in the way. The red-haired man called out to two other men who had arrived in a white Toyota Camry. They came towards KA who stepped out of the way. The Camry was then driven away, followed by KA’s father’s car. KA’s two mobile phones and his wallet were also taken.
KA was able to find his two mobile phones that afternoon and police found the car in the parking garage of a block of units later that day. The car had sustained some damage. KA got some, but not all, of the contents of his wallet back.
The offender was arrested at around the same time the car was discovered. He spent 96 days in jail until bail was granted. He pleaded not guilty to the charge of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT), but was found guilty by a jury on 25 February 2022 and has been in custody since then.
Was he armed with a knife?
The charge of aggravated robbery required the Crown to prove either that Mr Marshall was in company, that he was armed with an offensive weapon, or both of these circumstances. As is clear from the way I have recited the events of 27 June, I am satisfied beyond reasonable doubt that he was both in company and armed with a knife. The submissions made on behalf of Mr Marshall today did not ask me to find otherwise. Despite the agreement of Mr Marshall to the proposition that he was both armed with a knife and in company, because of some questions asked of me by the jury during their deliberations, I consider it necessary to explain why I accept the joint position of the parties.
The jury’s verdict means that they were satisfied beyond reasonable doubt of at least one of the two aggravating circumstances. There were some questions asked by the jury during their deliberations suggesting the possibility that some of their number were at least reluctant to find beyond reasonable doubt that Mr Marshall was armed with the knife. As I explained to them in the course of answering those questions, if they were to find Mr Marshall guilty, it is for me as the sentencing judge to decide which of the aggravating circumstances have been proved beyond reasonable doubt.
I should emphasise at this stage that there was no real dispute that KA was robbed. The only real issue in the trial was whether Mr Marshall had been correctly identified as being the man in the back seat. The Crown case against him was circumstantial, but it was a strong circumstantial case. Mr Marshall did not give or call any evidence, and the verdict of guilty came as no surprise.
There was forensic evidence linking Mr Marshall with the stolen car, in particular the rear passenger seat on the driver’s side which is where KA said Mr Marshall was when he robbed him. But there was no forensic evidence linking Mr Marshall with either of the two knives which police found that day.
Despite that lack of forensic evidence, I am satisfied beyond reasonable doubt that I should accept KA’s evidence when he said that Mr Marshall held a knife to his throat. Almost immediately after being robbed KA spoke to police on a 000 call using a helpful bystander’s mobile phone. The second thing he said on the call, after “how you going”, was “Hello? Yeah, mate. I got held at knife-point”. When two police officers arrived at the scene a very short time later, he told the officer who was speaking to him that a male had held a knife with a silver blade to his throat. In a record of conversation held later on that day, KA said “I was in the car – back car park of woollies and the back door open, and I had a knife, pretty well at my throat…”
KA gave evidence at trial that he had a knife held to his throat by the man in the back seat who, by the jury’s verdict, was the offender. There was no cross-examination of him by Ms Lee who appeared for Mr Marshall to suggest that KA was lying or mistaken when he said that he had had a knife held to his throat, and indeed she endorsed his evidence when she was questioning KA about the opportunity he had to observe the face of her client when she asked “well sir, you just had a knife held to your throat, yes?”
Assessment of objective seriousness
This is a serious example of a serious offence. KA was alone when confronted by two men, with a further two nearby. The offence was clearly planned, at least to some degree. The fact that most of the property was recovered within a short time of the robbery occurring is of course relevant, but it remains the case that this was a violent and frightening offence committed in broad daylight in the car park of a public shopping centre. The use of a knife is of course significant as well as the way it was used – being held against KA’s throat. The potential for harm to come to KA through having the knife held against his throat by Mr Marshall is obvious and it is a matter of good fortune that he co-operated as quickly as he did and that, even accidentally, the knife did not cause him any injury.
I have already referred to the amount stolen, either $100, or perhaps $1,250. That is not a large amount of money, but the effects on KA, which I will discuss soon, go well beyond his monetary loss.
As far as the degree of planning is concerned, this was far from a spur of the moment offence, but there is no evidence that a great deal of planning went into it. There is no evidence that Mr Marshall was the prime mover in the criminal enterprise, but the fact that he was apparently the only one armed with a knife does demonstrate that he was expected to play a significant role in robbing KA.
The offence has much in common with the “typical” armed robbery offence as postulated in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry), except that Mr Marshall does not have little or no criminal history and, although this is not relevant to an assessment of objective seriousness, he did not plead guilty.
The 4–5 year guideline sentence referred to in Henry is of little application in this jurisdiction. For a start, Henry concerned an offence with a maximum penalty of 20 years’ imprisonment (s 94 of the Crimes Act 1900 (NSW)), whereas the maximum penalty for the offence committed by Mr Marshall is 25 years. But perhaps more importantly, sentencing in the ACT places a greater emphasis on rehabilitation than in NSW which leads to, generally, lower sentences.
Victim Impact Statement
KA has provided a victim impact statement which reveals that he has experienced the sadly commonplace consequences of having been the victim of an armed robbery. He says that he is now looking over his shoulder all the time. When he goes to the shops he has to keep an eye out. He is scared and when he is at home noises out the front make him anxious. He has trouble sleeping. Although some of his property was recovered, not all of it was. One of his phones was smashed and he has been unable to replace all the missing cards from his wallet, in particular his white card which is necessary for work in construction. He cannot afford to pay to have the damage to his father’s car fixed.
Consequences such as these are entirely foreseeable and even to be expected when someone is the victim of an armed robbery offence such as the one Mr Marshall committed.
Other offences
The offence I have just described is not the only matter for which Mr Marshall is to be sentenced. On his arrest, he was found to be in possession of a small quantity of methylamphetamine. He has pleaded guilty, or at least indicated that he would plead guilty, at an early stage to possessing a drug of dependence. In view of the quantity involved, which was for Mr Marshall’s own use, and taking into account the sentence I will impose for the aggravated robbery matter, I do not consider that he deserves any further punishment for possessing the drug of dependence. The most appropriate way of dealing with the possession offence is that I sentence Mr Marshall to the rising of the court. On one view, that is a sentence of imprisonment, and the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) has not been crossed for that offence. But, as a matter of reality and given that he will not be further punished for possessing the drug of dependence, it is the most expeditious way of dealing with the matter.
His commission of the aggravated robbery offence means that he has breached two good behaviour orders which are attached to suspended terms of imprisonment.
I am required to cancel the good behaviour orders (Crimes (Sentence Administration) Act 2005 (ACT) s 110). I can either impose the suspended sentence or resentence Mr Marshall for those offences. Whilst there is no presumption in favour of imposing the sentence that was suspended, the failure of courts to act where there has been a clear breach of the conditions under which the sentence of imprisonment is suspended, is likely to bring suspended sentences into disrepute. The assessment of Mr Marshall’s prospects of rehabilitation, as they were assessed at the time the suspended sentences were imposed, must have been considerably different to my assessment, based as it is on the fact that Mr Marshall breached the good behaviour orders attached to those suspended sentences.
For an offence of aggravated burglary with intent to commit theft, Mr Marshall was sentenced in the Magistrates Court to imprisonment for 18 months with the sentence to be suspended after serving seven months. For an offence of damage property Mr Marshall was sentenced to imprisonment for 12 months with, again, the sentence to be suspended after he had served seven months.
The facts of both offences show that they were committed in a rather spectacular fashion. Both involved what are colloquially known as “ram raids” where a vehicle is driven into a shop front or other premises with the intention of stealing property from those premises. In the first offence, Mr Marshall was one of a number of men who were in a Toyota RAV4 which was reversed through the roller door of an IGA store. Although not much was taken, more than $100,000 worth of damage was caused.
Less than half an hour after that offence was concluded, Mr Marshall and the other men were at it again. This time the RAV4 was driven into the front entrance of a news agency causing significant damage, but the offenders were unable to gain access to the premises and nothing was stolen.
Subjective Features
Mr Marshall is still a relatively young man. He was 20 at the time he committed the offence concerning KA and turns 21 tomorrow. Despite that, he has accumulated a significant number of prior offences, most relevantly involving possession of a knife, theft, burglary and aggravated burglary. However, this is the first time his offending has been so serious that it is being dealt with in this court.
Mr Marshall is the son of parents who separated when he was very young, his father returning to Papua New Guinea. He was raised by his mother until he turned seven when she formed a relationship with Mr Marshall’s stepfather. He has five siblings. Two of them live with this father, one has died, and his two younger siblings are from the relationship between his mother and stepfather. His upbringing was disrupted as the family moved frequently until his mother re-partnered. He has a strained relationship with his stepfather, Mr Marshall claiming that he has been subject to racial abuse and racial slurs from his stepfather, but his mother saying that their strained relationship is due to Mr Marshall’s offending behaviour and drug use.
Whatever the reason for the unfortunate relationship between Mr Marshall and his stepfather, it led to the offender leaving home earlier than he would have otherwise. He stayed with friends. One family with which he stayed were users of drugs and it was in that situation which led to him to using methylamphetamine for the first time.
I accept the submission made by Mr Marshall’s lawyers that he is “a young indigenous man with mental health difficulties, who experienced difficulties in his home life as a child, growing up estranged from his biological father and with a difficult relationship with his stepfather”. Whilst the principles stated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 are of application, this case is not one where the circumstances of Mr Marshall’s upbringing show such disadvantage that they overwhelm the need to impose a sentence that reflects the objective gravity of his offending.
He is in a relationship with his current partner. They have a very young son together. His partner is not associated with Mr Marshall’s criminal friends and is not involved in a criminal lifestyle. When not on maternity leave, she has a job in the public service. There are suggestions that Mr Marshall is trying to change his behaviour because he wants to be a positive role model for his son. He does not want his son to be abandoned as he was. In particular, Mr Marshall says that he is abstinent from illicit drug use, something his mother supports. A reference from her speaks of the change she has noticed in her son since his son was born.
Mr Marshall is fortunate indeed that his mother and partner are supportive of him. If he takes advantage of their help and guidance, he is less likely to see himself ending up as one of those sad people who, after repeated offending and repeated sentences of imprisonment, reach an age where they look back with regret on their wasted time in prison.
Youth
Attitude to offences
Prospects of Rehabilitation
Comparative cases
The Crown provided me with a table of what it called “Comparable Cases” of aggravated robbery. Mr Marshall’s lawyers provided me with some more. Although no two cases are alike, I have found this table and the other cases to be helpful. True it is that some of the cases are quite different from the present, and there are not many of them, but, together with the maximum penalty of 25 years’ imprisonment, they have been of some assistance. One important matter to note is that the cases all involved an offender who pleaded guilty. Mr Marshall does not get any discount for the utilitarian value of a plea of guilty.
Objectively the present case has one particular circumstance which must be firmly borne in mind. That is the fact that Mr Marshall held the knife against KA’s throat. That is a serious and unusual factor which requires a sentence above that which would I would have imposed had Mr Marshall contented himself with simply waving the knife around in a threatening manner.
Intensive correction order (ICO) not appropriate
While the submissions made on behalf of Mr Marshall accept that the threshold in s 10 of the Crimes (Sentencing) Act has been crossed, they submit that an ICO is appropriate. Ms Lee suggests that Mr Marshall is at “the crossroads” of his life. She refers to the, admittedly brief, period between October last year and February this year when Mr Marshall was on bail during which time he attended the Detention Exit Community Mental Health Outreach Program and his son was born.
I have already referred to Mr Marshall’s guarded prospects of rehabilitation. Personal deterrence has a part to play in my assessment as to how Mr Marshall should serve his sentence of imprisonment and the length it should be. Mr Marshall, despite his relative youth, is capable of understanding that he must be prepared to be punished if he continues to offend, especially where those offences are as serious as the aggravated robbery with which I am dealing and where it was committed whilst he was on conditional liberty. General deterrence is important as well.
The primary purpose of sentencing an offender is to protect the community and its members. Sometimes this is done by focussing on the rehabilitation of the offender. Sometimes it is done by focussing on the need to deter the offender, and others who may be tempted to act in a similar way, from committing serious offences.
In my view, even taking into account the subjective matters on which Mr Marshall is entitled to rely, when I take into account his prospects for rehabilitation and the objective seriousness of his offending, nothing less than full time custody is the appropriate sentence. It is such a sentence which best promotes the protection of the community. Backdate to take into account pre-sentence custody
In order to take into account the two periods of pre-sentence custody I referred to earlier, I will start my sentences from 96 days prior to 25 February 2022, namely 20 November 2021.
Orders
(a) For the offence of possessing a drug of dependence (CC2021/6701) I sentence Mr Marshall to the rising of the Court.
(b) For the offences of damage property (CC2019/11212) and aggravated burglary with intent to commit theft (CC2019/11209) I re-open the sentences.
(c) I cancel the good behaviour orders.
(d) For the offence of damage property I impose 12 months’ imprisonment from 25 May 2020 to 24 May 2021.
(e) For the offence of aggravated burglary with intent to commit theft I impose 18 months’ imprisonment from 25 May 2020 to 24 November 2021.
(f) For the offence of aggravated robbery (CC2021/6700) I impose 3 years’ imprisonment from 21 November 2021 to 20 November 2024.
(g) I set a nonparole period of 21 months, from 21 November 2021 to 20 August 2023.
I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman.
Associate:
Date: 12 May 2022
R
Marshall
Apart from the evidence that none of Mr Marshall’s DNA or fingerprints were found on either of the two knives the police found, the evidence was all one way. KA has consistently said from very shortly after he was robbed that he had had a knife held to his throat and it was not suggested to him that he was lying or mistaken about that.
Certainly, I have taken into account the absence of forensic evidence, but the forensic biologist who gave evidence in the trial explained how DNA transfer does not always occur when a person touches an object, even assuming that one of the two knives found by police was the knife used by Mr Marshall during the robbery.
It is for those reasons that I am satisfied beyond reasonable doubt that both aggravating circumstances relied on by the Crown were present – Mr Marshall was in company, and he was armed with an offensive weapon, namely the knife, which he held against KA’s throat.
The maximum penalty for the first offence is 20 years’ imprisonment (Criminal Code s 312), while the maximum penalty for the second offence is 10 years’ imprisonment (Criminal Code s 403(1)).
There is a danger of double counting when considering what to do with these two matters. I will take into account, when deciding what sentence to impose on Mr Marshall for the aggravated robbery matter, the fact that he was on conditional liberty at the time he committed that offence. In order to avoid double counting the relevance of that fact, I will not require Mr Marshall to serve any further imprisonment for the two offences which led to him being on conditional liberty. When I resentence him, I will do so in a way which has the effect that the sentences for those two matters are entirely subsumed by the sentence for the aggravated robbery.
Mr Marshall left school before completing Year 10. He has a certificate II in construction and holds his white card. He has had some employment in the past, working in the hospitality industry for two years and as a bricklaying apprentice for five months. Since leaving that job because of disagreements with his employer, he has received Centrelink payments.
Whilst in custody he has completed a number of programs and has been working in the kitchen.
At the age of 15 Mr Marshall was diagnosed with schizophrenia. He takes medication for that and when not in custody engages with Woden Mental Health Services. His mental state has been assessed whilst in custody. It appears to be stable.
There has been no evidence put forward which would suggest that there was any connection between his mental illness and his offending, nor is there any evidence that his conditions of custody are more onerous than they would otherwise be.