Regina v Marsh [2001] NSWSC 1109

New South Wales Supreme Court

CITATION : Regina v Marsh [2001] NSWSC 1109 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70013/01 HEARING DATE(S) : 30 October 2001; 6 November 2001; 23 November 2001; 29 November 2001 JUDGMENT DATE : 29 November 2001

PARTIES : The Crown Stuart Cecil Marsh JUDGMENT OF : McClellan J

COUNSEL : Dr P Power (Crown) M Ramage QC (Offender) SOLICITORS : Director of Public Prosecutions (Crown) Brezniak Neil-Smith & Co (Offender) CATCHWORDS : Criminal law - sentencing - manslaughter - robbery in company - larceny of a motor vehicle - bag snatch - no special circumstances LEGISLATION CITED : Crimes Act 1900 CASES CITED : Georgina Marie Hill v R 3 A Crim R 397 DECISION : See paras 43, 44, 45

OF NEW SOUTH WALES CRIMINAL DIVISION McCLELLAN J THURSDAY, 29 NOVEMBER 2001 70013/01 - REGINA v Stuart Cecil MARSH SENTENCE 1 HIS HONOUR: The offender, Stuart Marsh, has pleaded guilty to the manslaughter of Lanh Ngoc Bui. He has also pleaded guilty to being in company with his co-offender, Clarke, to rob Ms Bui of her handbag and a further offence of take and drive a conveyance without the consent of the owner. 2 On or about 28 July 2000 the offender stole a Ford Falcon, registration number UPM 844 from Aurelia Street, Toongabbie. On the evening of 3 August 2000 he was driving the car when he collected Wayne Clarke, who has previously been sentenced in relation to these matters. The two of them embarked upon an enterprise intending to rob a person of a handbag. Marsh drove the vehicle with Clarke as his passenger to Lidcombe via Strathfield looking for a victim to rob. 3 The deceased Lanh Bui, had attended Lidcombe Club with her boyfriend Tri Dung Tran, where they had dinner. They left the Club at approximately 9 pm and walked a short distance to Tran's unit at 16-20 Swete Street, Lidcombe. Mr Tran went inside to collect his car keys whilst Ms Bui waited outside the unit on the driveway/footpath area. 4 While she was waiting Marsh drove the stolen car into Swete Street. He stopped the vehicle approximately fifty metres from where Ms Bui was standing and Clarke got out of the vehicle, approached Ms Bui and grabbed her handbag. Marsh continued to drive the vehicle alongside Clarke and Ms Bui. Clarke opened the passenger door and sat on the front passenger seat. Ms Bui pursued Clarke and attempted to retrieve her handbag. Marsh began driving down Swete Street and initially Ms Bui ran alongside the vehicle for a short distance. Marsh briefly stopped the vehicle and Ms Bui partially entered it. Marsh then accelerated and drove the vehicle down Swete Street, swerving from side to side in an attempt to release Ms Bui. The offender then drove the vehicle through the roundabout at the corner of Church Street, clipping the gutter as he made the turn. 5 Ms Bui had hold of Clarke's head and this protected her from falling. The offender, whilst driving, leaned across and punched Ms Bui to the head a number of times in an endeavour to release her from the vehicle. Approximately forty metres from the roundabout in Church Street, Ms Bui fell from the vehicle, rolled onto the roadway and the rear tyre of the vehicle struck her head. 6 Ms Bui was found unconscious and was transported by ambulance to Westmead hospital where she died at approximately 1.20 am on the morning of 4 August as a consequence of her head injuries. 7 After the robbery, the offender and Clarke drove to Thomas Street, Parramatta where they searched Ms Bui's handbag, recovering $15 in cash. They then discarded the handbag and small items from it in a bin at the rear of the unit complex situated at 1-3 Thomas Street. Those items were later recovered. 8 The stolen vehicle was also later recovered and it was found to contain items relating to the offender. 9 On Tuesday, 8 August 2000 Clarke's solicitor contacted police and indicated that Clarke wished to speak about his involvement in the matter. The police attended at the solicitors' office where, after enquires had been made, Clarke was arrested, later participating in an ERISP interview and a video recorded re-enactment of the events of the night of 3 August 2000. He gave a detailed account of what had taken place which included the offender's involvement and indicated his willingness to assist the Crown by giving evidence at the trial of the offender. As I have indicated, Clarke has since been sentenced by me for his involvement in this crime. 10 The offender was arrested, in relation to other matters, on 20 August 2000. On 24 August 2000 Det Bourchier interviewed the offender in relation to the current offence. On 14 September 2000 the offender was charged and refused bail in relation to the other matters. On 17 October, whilst on remand at the Metropolitan Remand Centre, the offender was taken and held at the Parramatta court complex on the pretext of speaking to a detective regarding another offence. Whilst held in the cells between 8 am and 6 pm he was legally recorded as talking to some other prisoners about the events, which led to Ms Bui's death. In that conversation he confirmed the account given by Clarke to the police, including the fact that whilst making their escape he had punched the deceased a number of times in an attempt to dislodge her from the car while she was clinging to Clarke's head. 11 On 17 November 2000 the offender took part in an ERISP with police. He initially denied he had any involvement in the events on 3 August 2000. Parts of the recordings made by police on 17 October 2000 were played to the offender and he was also asked to read an extract from a transcript of that recording. After this was done he declined to be interviewed further in relation to the matter and he was then charged. 12 When sentencing Clarke I said: "To describe the events as a 'robbery gone wrong' is to seriously understate the seriousness of the crime. As a result of the illegal activity of the offender and his companion, an innocent nineteen-year-old woman has lost her life. In expressing the court's sympathy to Ms Bui's family I am deeply conscious that no words are adequate in these terrible circumstances. I have read and appreciate the contents of the victim impact statements. I appreciate the enormous grief of the loss of such a loved daughter and sister brings in these circumstances." 13 I can only repeat those works today. 14 I have previously indicated that sentencing for manslaughter is a difficult process. The range of sentence is greater than for almost any other offence. The maximum penalty is twenty-five years imprisonment. In Georgina Marie Hill v R 3 A Crim R 397 the Chief Justice said: "The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the prisoner coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life." 15 It is necessary for me when determining the penalty, which it is appropriate to impose, to have regard to the objective elements of the criminality of the acts which led to Ms Bui's death. In this respect the involvement of the offender is significantly greater than that of Clarke. The offender actively initiated the criminal escapade which resulted in Ms Bui's death and as the driver of the car, was responsible for the acts which endeavoured to shake her free and struck the blows to her head which contributed to her ultimately falling from the car. 16 The Crown has accepted the plea of manslaughter and accordingly the offender cannot be sentenced on the basis that he intended, by his acts, to kill or cause grievous bodily harm nor that he acted with reckless indifference to human life. However, the offender is guilty of manslaughter by an unlawful and dangerous act. 17 I should also indicate that when I come to the imposition of the sentence I cannot, of course, have regard to the victim impact statements. 18 I indicated, when sentencing Clarke, that there is a great need for the sentence which is imposed to be sufficient to deter and discourage others from carrying out crimes which may involve a risk to human life. The snatching of bags from pedestrians always creates a risk to their safety. But that risk is significantly increased when a motor vehicle is part of the overall plan. The community is entitled to expect that people can use the pedestrian pathways without fear of their property being taken and their lives threatened. 19 The tragedy which resulted in the death of Lanh Ngoc Bui occurred when the offender and Clarke, at the suggestion of the offender, decided to rob her. Once the enterprise had started to go wrong, and Ms Bui was caught up, the offender continued to drive the vehicle, swerving from side to side, and when Ms Bui had not fallen, he reached across and hit her. Following these events she fell from the vehicle. The objective criminality of the offender's actions is significantly greater than those of Clarke. 20 The offender had control of the vehicle and could have stopped to release Ms Bui. Instead he continued moving whilst attempting to remove her from the vehicle. But for these actions, although Ms Bui may have been injured, it is most unlikely that she would have died. 21 Whereas Clarke surrendered himself to police and revealed his identity, the offender did not. Upon being interviewed by police he denied any involvement in the crime. I conclude that the current plea reflects the offender's recognition that having regard to the fact that Clarke indicated that he would give evidence against the offender at his trial there was little alternative but to plead guilty. 22 I am not satisfied that the offender originally showed any remorse for the events in which he participated although he ultimately pleaded guilty thereby avoiding the necessity for a trial. 23 The report by Anita Duffy, a consulting psychologist, suggests the offender now has some insight into the extent of his criminality. His plea of guilty otherwise has a modest impact upon the ultimate sentence. In my opinion, the plea of guilty entitles the offender to an allowance of twenty percent. 24 The offender is now aged thirty-two years of age, having been born on 26 March 1969, and at the time of the offence was unemployed. He has a dreadful criminal history. The sentences which have been imposed upon him reflect attempts by courts to provide him with an opportunity to avoid a life of crime. However, the opportunities which have been given to him have been successively squandered and he has progressively engaged in more serious criminal activity. There can be little doubt that his criminal activities have been made more necessary by his involvement with illicit drugs. There must now be serious doubt whether he can ever rehabilitate himself. 25 His record includes convictions for stealing commencing in 1982, drug offences, some minor offences, serious assault matters, motor vehicle related matters, one matter involving an escape from custody and others. 26 As I indicated, Anita Duffy has interviewed the offender and provided a report which was tendered before me. It is appropriate that I repeat some of the material provided in that report: 27 Ms Duffy identifies that the offender was born in 1969. He is the second youngest in his family, having two older brothers, two older sisters and a younger brother. The three youngest brothers have all had an involvement with drugs and alcohol and Stuart's older brother is apparently, presently, or was, at the time of the report, in custody and another brother has also spent some time in custody. The offender's father was an alcoholic who was very violent to his mother and to the children of the family. The mother left the relationship when the offender was ten years of age. The offender continued to live with his mother and saw his father on rare occasions. His father died in 1999. Apparently, the offender's mother does not enjoy good health and does not visit him in gaol, although they do speak on the telephone. The offender has contact with his brothers and one of his sisters but not the other. 28 The offender went to Riverstone Primary School where he experienced learning difficulties, particularly with reading and maths. He truanted from school and was sent to Ormond Boys Home at Thornleigh on two occasions for periods of months. He reported to Ms Duffy that he enjoyed Ormond, feeling far more comfortable there than he did at home. 29 He went to further institutions in his teenage years and commenced schooling at Riverstone High School. However, he did not complete even the first year before he was sent to the Darruk institutions after a car stealing charge. He reports that he learned " a little bit" there. 30 The picture thereafter appears to be one of involvement with a variety of criminal activities, together with a number of his friends. His life pattern appears to be one of drugs, crime and boys' homes. 31 For a time he held a casual job at the Flemington markets and for a time, also, he worked as an assistant to a pastry cook. 32 The offender formed a de facto relationship when he was about seventeen and he has three children, all boys, aged fourteen, twelve and ten. The relationship has come to an end. Apparently his sons visit him in gaol and express to their father their disappointment that he continually ends up in custody. Ms Duffy says that at least they may be having some influence on their father who has expressed, at least, a recognition of his plight and a desire to become a better father to the boys in the future. 33 Apparently when the offender came into custody in relation to the present matter he detoxed from drugs. He has recently embarked on group programs provided run by drug and alcohol counsellors. 34 The offender is "one out" and held in strict protection. Ms Duffy says that he now expresses remorse and sorrow, some empathy and concern for Ms Bui's family and their grievous loss. 35 In her conclusions Ms Duffy says this: "Stuart's presentation at our interview, the results of objective personality assessment as well as his general history indicate he has experienced recurring symptoms of depression since childhood, in response to his disconsolate family circumstances. Coming from a family with a violent alcoholic father, where Stuart and his siblings were both witnesses to violence perpetrated on their mother and where Stuart himself was the butt of his father's aggression all had long term adverse effects on his emotional and social development. His desire to avoid home life was so intense that he preferred the relative safety and security of Ormond Boys Home. He remembers being treated well there and he felt 'comfortable' and he was given things that he did not or could not receive at home such as material possessions, outings and excursions. From a very young age, Stuart used alcohol and was introduced to heroin even prior to his teens. He tended to mix with friends whose older relatives provided them with drugs and he became involved in the drug taking and criminal subculture extremely young in life. He has had a number of admissions to Juvenile Justice institutions and this continued when he reached adulthood and he spent much of his time in gaol. He shows some evidence of institutionalisation in that he did not find gaol threatening or difficult up to now despite experiences of assault by other inmates. He continued the pattern of drug taking even whilst in custody and always returned to using heroin as soon as he left gaol. Heroin appears to have been the means whereby he could cope with life effectively, by escaping from his problems through temporary experiences of euphoria. Most of his criminal record has been related to activities to finance his drug habit, and he has served sentences for stealing and break and enter charges. The offence with which he is charged seems somewhat inconsistent with his history, and may have been a product of a number of events, namely his desire for heroin and the fact that he was travelling with his co-defendant who suggested he stop the car in order to rob the victim. The victim however did not relinquish her bag, and indeed was carried along on the car by the co-defendant when she attempted to enter the car. Stuart's response to this was to panic. He attempted to shake her off and punched her in order to make her let go of the bag and of his co-defendant. The tragic episode ended when the victim fell from the car and was subsequently injured and died later of head injuries." 36 She continues: "Stuart expresses remorse and consternation over his role in these events. He admits that he 'freaked out' and 'panicked' and after he found out she had died, felt very 'shattered'. Since his arrest, Stuart has been kept in Strict Protection. He is depressed, extremely anxious and vigilant to threat and harm and as he says has been 'doing it hard' reflecting constantly over why he took part in such an act. To his credit, he is undertaking drug and alcohol courses whilst in custody and is currently embarking on a more intensive group program to facilitate communication skills and discuss more painful and deeper issues underlying his long history of substance dependence. Stuart has always found it difficult to air his feelings and disclose his problems, and his participation in this group appears to be a significant and positive step necessary for any rehabilitation process. It is thought that whilst in custody he will require intervention to work on social skills and assertiveness training, improve his self concept and prevent the possibility of self harm. Relapse prevention must be a necessary part of this procedure, as Stuart is now highly motivated to cease the destructive cycle of drugs and crime. Over his years in custody, he may have developed a sense of helplessness and to foster any progress he may need to participate in programmes not only involving personal development but also educational and vocational skills, to help him find employment when he leaves. He will be by then probably highly institutionalised, and may require preparation both within custody and upon his release to facilitate his adjustment back into society. Close probation and parole supervision would be extremely important at this stage." 37 Having regard to the circumstances of the offence and the degree of criminality involved, a sentence at the high end of the available range, in my opinion, is appropriate. I am of the view that this should be a sentence of thirteen years full time imprisonment. However, having regard to the plea entered by the offender this sentence should be discounted by twenty percent, making the appropriate sentence ten years and four months. 38 Having regard to the circumstances of the offender I see no reason why I should find special circumstances justifying a non-parole period greater than the statute provides. 39 The offender has also pleaded guilty to one count of robbery in company contrary to s 98 of the Crimes Act. The offence carries a penalty of twenty years imprisonment. The crime being central to the offence of manslaughter carries the same significant degree of criminality. However, I am mindful of the fact that no weapon was involved. 40 Allowing for the plea of guilty and the other matters to which I have referred, I believe a fixed term of six years is appropriate in relation to this matter, which must be served concurrently with the sentence in relation to the charge of manslaughter. 41 The offender has also pleaded guilty to taking a motor vehicle contrary to s 154A(1)(a) of the Crimes Act. The penalty (the offence being larceny) is a maximum of five years imprisonment. Again, having regard to the plea of guilty and the other matters, I believe for this offence a fixed term of fourteen months is appropriate which must be served concurrently with the sentence on the charge of manslaughter. 42 Mr Marsh you have pleaded guilty to the offences of manslaughter, robbery in company and larceny of a motor vehicle. I have heard and taken into account all of the matters that have been put by counsel on your behalf. I have had regard to the circumstances in which the offences occurred, your pleas of guilty and your personal circumstances. 43 You are convicted of manslaughter. You are sentenced to a term of ten years and four months full-time imprisonment to commence on 17 November 2000 and expiring on 16 March 2011. I fix a non-parole period of seven years and nine months. Accordingly you will be eligible for release on parole on 16 August 2008. 44 With respect to the charge of robbery in company you are convicted and sentenced to a fixed term of six years full-time imprisonment to commence on 17 November 2000 and expiring on 16 November 2006, the sentence to be served concurrently with the sentence for manslaughter. 45 With respect to the charge of taking a motor vehicle contrary to s 154A(1)(a) you are convicted and sentenced to a fixed term of fourteen months full-time imprisonment to commence on 17 November 2000 and expiring on 16 March 2002, that sentence again to be served concurrently with the sentence for manslaughter.