R v Marsh [2014] NSWDC 301

District Court New South Wales

Medium Neutral Citation: R v Marsh [2014] NSWDC 301 Decision date: 28 August 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: For the 5 offences, an aggregate sentence of imprisonment for 2 years and 2 months is imposed with a non-parole period of 15 months. Catchwords: CRIMINAL LAW - particular offences - robbery in company - aggravated enter dwelling with intent to steal - stealing property from a dwelling house - assault with intent to rob - plea of guilty at earliest opportunity -25% discount - sentence - relevant factors - prior criminality - previous criminal behaviour coinciding with commencement of drug use - offences committed while on conditional liberty - nature and circumstances of offender - unstable upbringing - chronic drinking and substance abuse - limited education and work history - reasonable prospects of rehabilitation - parity between co-offenders - appropriate to be guided by sentences for co-offender - special circumstances for adjusting ratio between head sentence and non-parole period - youth of offender (19) - need for supervision and assistance in the community upon release on parole Legislation Cited: Crimes Act 1900 (NSW), ss 94, 97, 111(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 50, 53A Category: Sentence Parties: Regina (Crown) Ian Marsh (offender) Representation: Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (offender) File Number(s): 2013/000331272013/00034434

Judgment 1. I am sentencing a young man who survived a fairly unstable upbringing for most of his life. However when he got to the age of 17 or 18 he developed a habit of taking the illegal drug ice. That seems to coincide with his criminal record which commenced in 2012, the same year that he started taking that substance. He has committed a lot of offences in a short period of time. This morning I am sentencing him for five separate offences. I will need to say something about each of the offences and I will need to say something about the personal circumstances of the young man himself. 2. The young man's name is Ian Marsh. He is still only 19. The five offences I am sentencing him for are these: I am sentencing him for a robbery in company committed at Redfern on 15 November 2012. That is an offence against s 97 of the Crimes Act 1900 (NSW). Parliament regards that offence as very serious and has fixed a maximum of 20 years imprisonment to the crime. 3. I am next sentencing Ian Marsh for an aggravated enter a dwelling with intent to steal. That is an offence against s 111(2) of the Crimes Act. Parliament has fixed a maximum of 14 years imprisonment to that offence. When I am sentencing him for that offence he has asked me to take into account under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) an offence of stealing property from a dwelling house. I will take that additional offence into account when I sentence him and I have signed a form under s 32 to that effect - the form is part of Exhibit B. 4. The third offence I am sentencing Ian Marsh for is assault with intent to rob. That was committed at Cammeray on 3 February 2013. That is an offence against s 94 of the Crimes Act and Parliament has fixed a maximum of 14 years imprisonment to that crime. (If I failed to mention it, the aggravated enter with intent to steal was also committed in Redfern and it was committed on 30 January 2013.) Returning to Cammeray, at the same time as committing the assault with intent to rob he committed a separate robbery in company - in fact he committed two separate robberies in company. Each of them he has been charged with. All of those Cammeray crimes were committed on 3 February 2013. The robberies in company are more serious. They are offences against s 97 of the Crimes Act and Parliament has fixed a maximum 20 years imprisonment to those offences. 5. When he was brought before court charged with all five offences, Ian Marsh pleaded guilty. He pleaded guilty at the first available opportunity - the prosecution acknowledges that. The effect of that is to free up the justice system significantly so that other cases can be dealt with because Mr Marsh has avoided the need for a trial. Accordingly in due course I will discount the sentences which he should receive by 25% in order to acknowledge the plea of guilty at the earliest available opportunity. Although he has been in full-time custody from 30 May this year, Ian Marsh spent about a month and two days, I am rounding it up in his favour, from 3 February 2013 to 4 March 2013. Accordingly I would backdate the sentence to 28 April 2014. However he also spent two and a half months in a residential facility for drug rehabilitation called The Glen. I will allow him just under half of that, about a month and a week because it is regarded by the courts as being not unlike full-time custody. Accordingly his sentences will commence on 21 March 2014. 6. As I said, I need to say briefly something about each of the offences which Mr Marsh has committed. The first in time was on 15 November 2012. A man finished work at a car wash in Redfern and he was waiting on the street. He was approached by Mr Marsh and another man. Mr Marsh approached the waiting man from behind along with a companion and asked him for fifty cents. They were then joined by a third offender. That man stood over the victim to stop him from walking away. The three men surrounded him, grabbed the front of his shirt and pulled his backpack off. The man ran away but Mr Marsh followed him. Police later found Mr Marsh and arrested and charged him with the offence of robbery in company. 7. The aggravated enter and commit larceny was committed a few months later on 30 January 2013. A man who was nearly 60 was living in his unit in Redfern. He heard a knock on the door. Mr Marsh and a number of other people were at the door. The others were waiting out of sight. When the man opened his door Mr Marsh pushed past him and the others went in. He was pushed backwards onto the couch. He was asked where his money was and he said that he did not have any money or drugs. The agreed facts record that Mr Marsh punched the man. Mr Marsh denied that in evidence and also in his record of interview. I am not satisfied beyond reasonable doubt that he punched the man. The group searched for money and drugs and then left with Mr Marsh holding an iPad. To his credit some days later Mr Marsh turned himself in at the Redfern Police Station. The taking of the iPad is the matter which I am taking into account under s 32 of the Crimes (Sentencing Procedure) Act. 8. I turn now to the three offences which were committed on 3 February 2013 at Cammeray. A group of teenage boys were using their skateboards in a park. Again Mr Marsh was one of a group of others who were hanging around nearby. Mr Marsh and the men he was with surrounded the teenagers. One of them punched one of the boys in the jaw with his closed right hand. The agreed facts in this case record that it was a young person whose name I will not supply. Interestingly in her remarks on sentence of that young man her Honour Judge Hock noted that the "evidence in the trial established that it was Ian Marsh who did so". Nevertheless, there is no evidence before me apart from that observation by her Honour that Mr Marsh punched the teenager and I do not so find. But he was there at the time in the joint enterprise and is therefore guilty of the crime of assaulting with intent to rob. 9. The two offences of robbery in company occurred with the other teenagers, the young man who was punched having run away. One of Mr Marsh's companions grabbed one of the remaining teenagers and forced him to produce his wallet. He had only a few coins in it which he passed on. In fact, the offenders gave him back his wallet. From the other young man they stole about $20. They were going to steal his camera but he asked for it back and they gave it back. These are the two offences of robbery in company. 10. I have made reference to Ian Marsh's criminal record. He became an adult in September 2012. Earlier that year he was convicted of robbery in company at Bidura Children's Court. He was called up later in the year because he breached a probation order. He was also convicted of break enter and steal at Parramatta Children's Court as well as stealing from the person. In addition he was convicted of aggravated robbery in the Parramatta Children's Court. More recently, in fact this year, he was convicted of offensive behaviour. He got a good behaviour bond for that. He has not been in custody until he was bail refused relating to these matters after his arrest in 2013. As I have already said, his criminal behaviour appears to coincide with the development of his use of the drug commonly known as ice. 11. There is a presentence report which was prepared by a Community Corrections Officer. It noted "an unstable upbringing". He lived at times with his mother and at times with his father in Perth. He has also been effectively homeless at times since he moved to Sydney. He attended seven separate schools and left after Year 9 and has a limited work history. He started drinking alcohol from about 13 and also started using other drugs, including prescription drugs. The report noted that the forensic psychiatric report "provided for the information of the court identifies a number of symptoms reflecting general emotional difficulties and risk of self-harm". He acknowledged to the Community Corrections Officer that he knew he had done the wrong thing. It noted that he had some accommodation with an older person which the Corrections Officer thought to be "a step in the right direction". In a later report however, his progress was described as uneven and his efforts in contacting the Community Corrections Service for an update report were not good at all. 12. The forensic psychiatric report referred to was by a consultant forensic psychiatrist Dr Richard Furst. Dr Furst diagnosed a substance dependence, namely alcohol, cannabis and amphetamines and also what he described as borderline/antisocial personality traits. He noted a "history of childhood adversity, abuse and neglect." Dr Furst thought it likely "that his offences were influenced by his unstable social circumstances, homelessness, and the effects of his chronic drinking and substance abuse." He also expressed remorse to Dr Furst. He thought that his condition may have contributed "to the poor judgment and impulsivity he displayed when committing the various offences." He would benefit from "specialist drug and alcohol services available through Justice Health and the Department of Corrective Services for treatment of his substance dependence." Dr Furst described his "risks of further relapse and re-offending" as requiring "assertive treatment and monitoring in the future, preferably with residential rehabilitation and/or supported accommodation for troubled youth after any custodial sentence he may receive." 13. Mr Ian Marsh has attempted rehabilitation before at a place called The Glen Centre. He spent, as I have said and taken into account, some months in that centre and a report from the Centre said that the staff "found Ian hard to read at times because there was days when he was very serious about the programme and other days when you could not get him to take anything seriously." He also spent some time with the Oasis Youth Support Network conducted by the Salvation Army. It noted that when he "began residing in New South Wales, his mental health and drug and alcohol behaviour started to deteriorate." He had also been admitted to Westmead Hospital. 1. Ian Marsh did some work for his father's company earlier this year. He received a very good reference from the General Manager of that company who was impressed by his "high level of work ethic, his commitment to doing what is right and following through on completing tasks." She described him "extremely polite and well mannered, with a desire to do well." She would be prepared to support him in his endeavours in the future. 2. I have to take into account that when committing all of these offences Ian Marsh was on conditional liberty. That means that courts had released him into the community instead of keeping him in custody provided that he behaved himself. He abused that trust given him by the courts. He had been on a probation order issued by the Children's Court and two bails which applied to one or more of the offences. 3. Mr W Sandilands who appeared for Mr Marsh called his client to give evidence. Mr Marsh made it clear that he was very sorry for all of the offences that he had committed. When he is released from custody he wants to get away from Sydney and the people he mixes with there. His father will commence conducting a business on the Gold Coast at the end of the year and he would like to do some work with his father. 4. Cross-examined by Ms R Chalmers who appeared for the Director of Public Prosecutions Ian Marsh confirmed that he had been homeless for some months. His intentions for after he is released became a little unclear but he confirmed that he would like to move away from the city and bad influences and move into the country, perhaps within New South Wales not far from the border with Queensland so that he can have access to his father. 5. I think his prospects for rehabilitation are reasonable, I cannot assess them as high because of the Community Corrections Officer's report and his previous unsuccessful attempts. But his time in custody he has been using to get off the drugs as much as he can which is a good sign. As Ms Chalmers said, and I accept, he has many more hurdles to go in dealing with the reality of a sober lifestyle. Mr Sandilands suggested that he would benefit from an extended parole period. Ms Chalmers did not take exception to that and in due course I will extend the usual parole period. It will enable him to settle into the community with support. 6. An important factor in this case were the sentences imposed by her Honour Judge Hock in respect of one offender who was present with Mr Marsh at all but one of the offences that he committed. That young man had pleaded guilty to the same assault with intent to rob and the same pair of robberies in company which Ian Marsh has pleaded guilty to. However the other young man's plea was quite late. Her Honour allowed him a 15% discount. In respect of the assault she imposed a sentence of 12 months imprisonment and in respect of the robberies in company her Honour sentenced him to a concurrent 10 months sentences but commencing two months into the 12 months sentence. In fact the overall effect was a 12 months sentence. The other offence shared with Mr Marsh was the aggravated enter with intent to steal. The other young man went to trial on that, so did not have the benefit of a plea of guilty. He was found guilty by the jury and convicted. Her Honour fixed a sentence of 20 months with a non-parole period of eight months, accumulated by four months on the Cammeray offences. The overall sentence imposed by her Honour on that young man in respect of the four offences, all of which were also committed by Mr Marsh, was a sentence of two years and two months with a non-parole period of 14 months. 7. In respect to the Cammeray offences I regard it as appropriate to be guided by her Honour's sentences in respect of those matters. The young man also had a criminal record which included at least one robbery which was committed in another country. 8. In respect of the assault with intent to rob committed at Cammeray I would regard an appropriate sentence for Mr Marsh as being 14 months imprisonment. I would discount that by 25% because he pleaded guilty at the earliest available opportunity and I would round it off at 10 months imprisonment. In respect of each of the robberies in company committed at Cammeray I would regard an appropriate sentence for each of them as being 12 months. Again I would discount that sentence by 25% so that for each of those crimes Mr Marsh will receive a sentence of nine months imprisonment. They are marginally less than the sentences imposed upon the other young man because Mr Marsh pleaded guilty at a much earlier time and is therefore entitled to a greater discount. 9. Again in respect of the aggravated enter dwelling with intent committed at Redfern, I will take as a guide her Honour's sentence of 20 months imprisonment. However that sentence was imposed after a trial, so for Ian Marsh I would discount it by 25% to 15 months. However I must take into account the additional offence he has asked me to take into account under s 32 of the Crimes (Sentencing Procedure) Act, so I would regard an appropriate sentence for Ian Marsh for that crime as being one of 16 months imprisonment. 10. For the robbery in company committed at Redfern on 15 November 2012, I regard an appropriate sentence as being 12 months imprisonment. Again I would discount that by 25% because Ian Marsh pleaded guilty and I would round it off to nine months imprisonment. 11. In due course I will impose one sentence under s 53A of the Crimes (Sentencing Procedure) Act but I need to indicate what my individual sentences would have been. For the assault with intent to rob, as I have said I would have imposed a sentence of 10 months imprisonment. It would have commenced 21 March this year and would expire 20 January 2015. HIS HONOUR: Now Mr Sandilands and Mr George, I know you two are noting all these mathematics please because I am going to ask you both at the end to make sure I am right. So 10 months 21 March 2014 to 20 January 2015. 1. In respect of each of the robberies in company committed at Cammeray, I have said that I would impose a sentence of nine months imprisonment. I would accumulate that by two months but they would run concurrently each with the other. So the pair of sentences would commence on 21 May 2014 and would expire 20 March 2015. I can see that is wrong straightaway. That should expire on 20 February 2015. 2. In respect of the robbery in company committed 15 November 2012 at Redfern I have indicated that I would have imposed a sentence of nine months imprisonment. I would accumulate that by four months on the other sentences, so that it would have commenced on 21 September 2014 and would expire on 20 June 2015. 3. Finally in respect of the aggravated enter dwelling with intent to steal I would have imposed a sentence of 16 months imprisonment. I would have accumulated that by four months on the other sentences. So that sentence would have commenced on 21 January 2015 and would have expired on 20 May 2016. 4. The overall effect of those sentences which I would have imposed would be a sentence commencing 21 March 2014 and expiring 20 May 2016, an overall sentence of two years and two months imprisonment. 5. The Crimes (Sentencing Procedure) Act envisages that the non-parole period should be 75% of the full sentence. Were I to follow that, the non-parole period for Ian Marsh would be about 19 and a half months but in my opinion there are special circumstances for reducing that, as both Mr Sandilands and Ms Chalmers acknowledged he needs a good amount of time in the community to get himself assistance with rehabilitation and employment. I would reduce his non-parole period to 15 months. It would commence 21 March 2014 and expire 20 June 2015. 6. Under s 53A I propose to impose an aggregate sentence of imprisonment with respect to all of the offences instead of imposing a separate sentence of imprisonment for each one. HIS HONOUR: Alright now Mr Marsh if you would stand up I am going to sentence you now. 1. For all of those crimes - all five of them - I sentence you to imprisonment for two years and two months. That is backdated to commence 21 March 2014 and it will finally expire on 20 May 2016. I fix a non-parole period that you have to be in custody for to commence on 21 March 2014 and that will expire next year on 20 June 2015. Under s 50 of the Crimes (Sentencing Procedure) Act I make an order directing the release of Ian Marsh on parole on 20 June 2015. HIS HONOUR: Now Mr Sandilands and Mr George two things. One is the maths, take your time. It is much better than having to come back for a revision of the sentence. The second thing is conditions of parole because I will be fixing conditions of parole, it is under three years. So have a think about those two things and tell me what you think and I would like you to do the maths independently, not one of you do it and compare it, I want to hear from both of you that I have got it right. SANDILANDS: Your Honour I can indicate that I was going through it as you read it out and I agree with those figures. HIS HONOUR: You agree, that is a good start. Now Mr George do you agree as well? GEORGE: Yes your Honour I agree. HIS HONOUR: That is very encouraging. Now the other thing Mr Sandilands, and I forgot to mention it to you last week, we have got here Dr Furst's report and we have got something from the Glen, something from Oasis. I can send those by fax to somebody in Correctives. Some prisoners do not want that sort of stuff circulating but the Corrections people say that that sort of material is very helpful to them in classifying prisoners. So would you get some instructions? SANDILANDS: Yes thanks your Honour I've just got instructions saying he'd be happy for those reports to go off. HIS HONOUR: Happy for them to-- SANDILANDS: Yes. HIS HONOUR: --okay good, I will sort that out in chambers. There is a fax that we will send them to and I will send those three first, the Glen Centre and Oasis. Now conditions of parole please, the usual but what else? SANDILANDS: Your Honour I think on the basis in my submissions that in relation to the normal ones of supervision that perhaps to follow the supervision in particular in relation to guidance as to drug and alcohol. HIS HONOUR: Can I make a recommendation that if he is here - and it is up to him - you are not sure where you are going to go are you when you are out but you would like to go to the country. Are you still thinking that? OFFENDER: Yes. HIS HONOUR: I mean and the three of us, the three lawyers were talking about the possibility that you might go up north of this State so you are near your dad. Is that something that is a possibility or too early to say? OFFENDER: Too early to say but it's my intention. HIS HONOUR: It is your intention to get a job with your dad, is that right? OFFENDER: Yes. HIS HONOUR: You are getting on alright with him aren't you? OFFENDER: Yes. HIS HONOUR: Mr Sandilands I could recommend that consideration be given to him being given leave to start employment in Queensland provided he is resident in New South Wales. SANDILANDS: Thank you your Honour. GEORGE: It is not opposed. SANDILANDS: Look your Honour the Corrective Officer was very kindly pointing out to me about the fact that if he wants to reside in Queensland he has got permission off the Parole Board, we went through that last week. HIS HONOUR: We did yes. SANDILANDS: Hence that's why he has got to be in Tweed Heads, it is too hard to go interstate. HIS HONOUR: Now who are the two people we want to avoid? SANDILANDS: Yes I'd like a recommendation that-- HIS HONOUR: Let's get the names right. I did not mention the names in my judgment or sentence because I just cannot remember whether one or all of them is a juvenile. SANDILANDS: I don't think they were, I think the juvenile is the one starting I'll just say with D because I think they're at the top of Judge Hock's judgment, WHATU Wautta I think I'm pronouncing it right Wikohika W-i-k and Patrick Thompson exactly. HIS HONOUR: And they are the two you want to avoid? SANDILANDS: Yes. 1. As part of my order I recommend strongly to the Commissioner for Corrective Services that he give consideration to keeping Ian Marsh in separate custody from the offenders Whatu Wikohika and Patrick Thompson. The conditions of Mr Marsh's parole are these - 1. That he be of good behaviour. 2. The he notify the Registrar of this court of his residential address once released and notify any changes. 3. That he attend court if called upon to do so. 4. That he accept supervision from the Community Corrections Service and accept all reasonable recommendations and directions from an officer of that Service including, in particular, concerning drug and alcohol counselling. I recommend that the Community Corrections Service give favourable consideration to Mr Marsh being able to secure employment with his father in Queensland. HIS HONOUR: I will just leave it at that and they can work out where to go from there. I will explain this to your client in a moment. Anything that I have left out Mr George, Mr Sandilands? SANDILANDS: Don't think so your Honour. GEORGE: Perhaps just if he is to ultimately reside at Tweed Heads and attend for work in Queensland that he only attend Queensland for that purpose and no other. HIS HONOUR: Yes. SANDILANDS: I can understand that, yes. HIS HONOUR: I think I will leave the recommendation as it is Mr George. I can see your point but I left it fairly general because it is a recommendation and they may disapprove it, they may approve it, they might even be more generous than we expect, so I have just left it in those general terms. SANDILANDS: It will be the discretion, I've been told, of his Officer. That's exactly right, it's discretionary. HIS HONOUR: Anything else Mr George, Mr Sandilands? COUNSEL: No. HIS HONOUR: Okay now Ian Marsh. Am I right in thinking you went off the rails in 2012 with the ice? OFFENDER: Yes. HIS HONOUR: That is when you came back to Sydney from Perth, is that right? OFFENDER: Yes. HIS HONOUR: And things spiralled out of control by the looks of it. OFFENDER: Yes. HIS HONOUR: You turn 19 next month is that right? OFFENDER: Turn 20. HIS HONOUR: Sorry turn 20 next month I mean. Now look you have got a gaol sentence, I had no choice. Mr Sandilands with respect gave you very good advice to start that process. Now your sentence commenced back on 21 March, you have already cut out almost six months of it. Now you have got a sentence of two years and two months. It commenced on 21 March and it will expire on 20 May 2016. Okay that is when the overall sentence expires, so you are still under sentence until that date. I fixed a non-parole period. Normally it should be about 19 months but I have reduced that so you have got more of your sentence on parole and less in custody. Do you understand that? OFFENDER: Yes. HIS HONOUR: The non-parole period is 15 months, that also started back on 21 March. That will expire on 20 June next year and I have ordered your release on parole on 20 June next year. Now when you are released I have directed that you accept supervision from Community Corrections - Probation and Parole. Now you have got to make an effort with them, they know what they are doing and they will help you. They are used to helping young men like you and they will give you good help. You will need a lot of support to stay off the drugs and alcohol and away from bad influences. They will help you with that. A couple of formal conditions are you have got to stay out of trouble on parole. If you get into trouble you will be back before me or the Parole Authority will just revoke your parole, so you have got to stay out of trouble. No getting picked up for cannabis use or drink driving or anything like that, you have got to stay clean. When you get out you let the Registrar of the Court here know where you are living and if you change it and if you are called up to court you turn up. Unlike Mr Sales this morning, we do not want to have to issue a bench warrant for you and get you here and use a lot of the Sheriff's time and police time. If you get a notice you turn up. Otherwise you are in the hands of Community Corrections. You have got to serve the time until June next year because of all those crimes you have committed, robbing people and breaking in and things like that. You have got to do your time for that but I am hoping that when you get out with Community Corrections and perhaps some psychological support that you will be able to get back on the track and get some work with your dad and stay clean. Do you understand that? OFFENDER: Yes. HIS HONOUR: Up to you - lots of other judges have told you that. Nothing I can do now, it is up to you. And also there are facilities in prison which you can now use because you are sentenced. Dr Furst thought that was a good idea, so if you can kick off some sort of course in prison so that when you are out you have got something already behind you then that is a good start. Do you understand that? OFFENDER: Yes. HIS HONOUR: Good luck Ian Marsh.