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.