Marsh v The Queen
[2018] NZHC 2485
•21 September 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2018-419-33 [2018] NZHC 2485
BETWEEN JUNIOR MARSH
Appellant
AND
THE QUEEN Respondent
Hearing: 14 September 2018 Appearances:
G Walsh for the Appellant
AAR Pell for the RespondentJudgment:
21 September 2018
JUDGMENT OF MUIR J
This judgment was delivered by me on Friday 21 September 2018 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel/Solicitors:
G Walsh, Barrister, Hamilton
AAR Pell, Almao Douch, Hamilton
JUNIOR MARSH v R [2018] NZHC 2485 [21 September 2018]
Introduction
[1] Junior Marsh was sentenced by Judge A S Menzies to four years and two months’ imprisonment on one charge of wounding with intent to injure,1 one of injuring with intent to injure2 and one of aggravated assault.3 Mr Marsh appeals against that sentence on three grounds. First, he says the starting point of four years was too high. Second, he says the uplift applied to that starting point for totality and prior convictions of one-and-a-half years was too great. And third, he says the discount applied for his guilty plea — just below 20 per cent — was inadequate.
What happened?
[2] In the early hours of the morning on 25 January 2017, Mr Marsh was the front seat passenger in a vehicle being driven by a Peri Fisher. Two police officers, Constable Topia and Constable Young, observed the vehicle, a Toyota Caldina, travelling at speed towards them. The vehicle was travelling fast enough to get airborne as it crossed a set of railway tracks, and both police officers heard the motor vehicle hitting the road surface.
[3] The police officers attempted to bring the vehicle to a stop by activating their blue-and-red lights and their siren. Mr Fisher failed to stop for police for approximately 500 to 600 metres, before pulling into his residential address.
[4] The police officers followed the motor vehicle into the address and parked near it. Mr Marsh got out of the front passenger seat, walked away from the motor vehicle and stood a short distance from the police officers. He was at this stage compliant.
[5] Meanwhile, Mr Fisher was abusive towards Constable Young. Constable Young reached into the driver’s window of the motor vehicle to remove the key. Mr Fisher aggressively swung the driver’s door open with both hands, and it hit Constable Young in his torso, knocking him backwards approximately five feet. Mr Fisher then got out of the vehicle, yelled at the constable and threatened him. Constable Young
1 Crimes Act s 188(2) – maximum penalty 7 years’ imprisonment.
2 Crimes Act s 189(2) – maximum penalty 5 years’ imprisonment.
3 Crimes Act s 192 – maximum penalty 3 years’ imprisonment.
indicated to Mr Fisher that he had a taser, however, Mr Fisher persisted in his behaviour.
[6] Constable Topia attempted to apprehend Mr Fisher, who was resisting. The constable deployed OC spray on Mr Fisher and attempted to handcuff him. The spray was ineffective, and Mr Fisher continued to resist. The back-spray incapacitated Constable Topia. Constable Young then deployed his OC spray on Mr Fisher and attempted to handcuff him, but still Mr Fisher resisted.
[7] A struggle ensued. Mr Fisher refused to get on the ground, and he threw a car tyre which was nearby towards Constable Young. The Constable then deployed his taser on Mr Fisher, immobilising him and causing him to fall to the ground. Both constables were at that stage focussed on handcuffing Mr Fisher.
[8] It was at this point that Mr Marsh became involved. He had obtained a vacuum cleaner pipe from the premises. As both constables were trying to restrain Mr Fisher, Mr Marsh swung the pipe with full force and hit Constable Young in the face. He was stunned and dazed, with blood pouring from his lip. The constable thought he had been hit with an axe or a machete and thought he was going to die. These facts founded the charge of wounding with intent to injure.
[9] Mr Marsh then turned his attention to Constable Topia. Mr Marsh struck him about the body with the pipe several times, for which he was charged with injuring with intent to injure.
[10] The constable was nevertheless able to deploy his taser and immobilise
Mr Marsh. He then attempted to handcuff him. However, Mr Marsh then punched the Constable and fled the scene. This in turn gave rise to the charge of aggravated assault.
[11] Mr Fisher was able to be restrained and arrested.
[12] As a result of the attack, Constable Young suffered a fractured nose requiring surgery, a split lip requiring four stitches, stitches across the top of the nose, stitches
above one of his eyes, black eyes, bruising and swelling. Constable Topia suffered from soreness to his back and neck, and bruising and swelling.
District Court sentencing
[13] Judge Menzies identified the charge of wounding with intent to injure as the lead charge. He acknowledged all of the aggravating features contended by the Crown. In particular:
(a)the attack was premeditated in that Mr Marsh armed himself with the vacuum cleaner pipe which had to be obtained from the premises;
(b) Mr Marsh intended to use the vacuum cleaner pipe as a weapon;
(c) the attack involved blows to the head of both constables;
(d) both constables suffered significant injuries;
(e)Constable Young was assisting in the apprehension of Mr Fisher and was caught unaware and unprepared, which means he was vulnerable; and
(f) both constables were in full police uniform.
[14] By reference to Nuku v R and R v Taueki, the Judge adopted a starting point of four years’ imprisonment. He then uplifted this by one year to take into account the other two charges.
[15] This sentence was then uplifted by a further six months to take into account Mr Marsh’s previous convictions, including from 2015 for attacking someone with a golf club. This was partially offset by a four-month discount for remorse, which was based on voluntary work completed by Mr Marsh in the interim and on a letter written to the Court expressing his apology for what occurred.
[16] Turning to the guilty plea, the Judge acknowledged that the guilty plea in this case was entered following negotiations with the Crown. The Judge had this to say:
[53] There is then an issue of what is appropriate by way of a guilty plea. There have been debates between counsel. Mr Walsh has argued, he says on the strength of Ormsby, that up to 25 percent should be available to you. The Crown, as I have said, put it at 15. I am going to deduct 12 months from the
62 months which leave an end result of 50 months. …
The guilty plea discount was therefore 19.35 per cent, resulting in a final sentence of four years and two months imprisonment.
[17] The Crown sought a minimum period of imprisonment. The Judge did not agree one was necessary. He considered he had already reflected the gravity of
Mr Marsh’s offending in selecting the starting point.
Approach to appeal
[18] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction;
and
(b) a different sentence should be imposed.
[19] In any other case, the Court must dismiss the appeal.4
[20] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.5 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.6
4 Criminal Procedure Act 2011, s 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
6 At [33] and [35].
[21] The approach taken under the former Summary Proceedings Act was set out in
R v Shipton:7
(a)There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c)It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[22] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.8
Was the starting point excessive?
[23] Mr Walsh challenges many aspects of the Judge’s sentencing. In particular, the starting point adopted on the lead charge, the uplift applied for the balance of the offending, the uplift for Mr Marsh’s previous convictions, and the extent of the guilty plea discount.
The lead charge
[24] Mr Walsh accepts the applicable tariff case is Nuku v R.9 In that case the Court of Appeal viewed its judgment as providing guidance on how R v Taueki can be adapted to apply to offending under ss 188(2), 189(2) and 191(2) of the Crimes Act
1961, rather than being a guideline judgment in its own right.10
7 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
8 Ripia v R [2011] NZCA 101 at [15].
9 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
10 At [37].
[25] The Court set out three bands:
(a)Band One — where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.
(b)Band Two — a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.
(c)Band Three — a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.
[26] The following observations made by the Court are pertinent to every case:
[40] We have taken the approach of having overlapping bands, as in Taueki, to maintain a degree of flexibility and to recognise that sentencing is an evaluative exercise, rather than a formalistic one.
[41] The aggravating features set out at [31] of Taueki will be applicable. We note in particular the comment in Taueki that the extent of violence will have an obvious impact on the level of criminality. We also refer to our comments at [36] above on how to take into account the level of injury to the victim. Also applicable to cases covered by this judgment are the concerns in Taueki concerning mitigating factors and those factors that do not reduce the seriousness of the offending. …
[42] We emphasise that a sentencing judge needs not only to identify aggravating factors but also to evaluate the seriousness of a particular factor. One very serious aggravating factor could have the effect of lifting the offending into a higher band. Equally, if a number of aggravating factors are present but only in a mild form, that may result in the offending being placed in a lower band. The level of seriousness of the aggravating factors will also, of course, affect where an offence is positioned within a band.
[43] Finally, we emphasise that the guidance given in this judgment is not to be applied in a formulaic or mechanistic manner. When setting the sentence in a particular case, the sentencing judge needs to stand back and undertake an overall assessment of the seriousness of the offending.
Submissions
[27] Mr Walsh submits an appropriate starting point would have been three years’ imprisonment. He says that is so for two reasons. First, the offending falls within Band Two of Nuku because only three aggravating factors are present:
(a) The offending was aimed at the head of the victim.
(b) The offending involved the use of a vacuum cleaner pipe as a weapon.
(c)The victim was an on-duty police officer responding to a co-offender’s driving behaviour.
Second, Mr Walsh refers to several previous cases to provide some context and perspective to the offending. In particular;
(a)In Maihi v Police,11 a three-and-a-half-year starting point was adopted in respect of an offender who had threatened a police officer with a guitar before punching the officer twice in the face. The officer suffered a broken nose with a small wound, a laceration above the left eye, bruising to the left eye socket and eyeball, and other grazes and a cut. This starting point was upheld by Toogood J on appeal. This decision predated Nuku.
(b)In Edwardson v Police,12 a three-year starting point was adopted in respect of an offender who tried to protect her partner from arrest by standing in between her partner and the arresting officer. Upon being arrested for obstruction, the offender lashed out at the police with her feet several times. One of her kicks made contact with a police officer’s
jaw, breaking it. Other blows were directed to the police officer’s chest area. This starting point was upheld by Lang J on appeal.
(c)In Ormsby v R,13 the Court of Appeal substituted a starting point of two- and-a-half years in respect of an offender who pushed his “on-and-off” partner to the ground, jumped on top of her, bit off a portion of her left earlobe and spat it onto the ground. The victim was in hospital for two days and was left with a disfigured earlobe.
(d)In Grimshaw-Jones v R,14 a starting point of two years and eight months was adopted in respect of an offender who slapped a woman across the face and lashed out at her with a knife, causing “very serious” injuries to her—a cut to her jugular vein which needed three stitches, and a 10- centimetre cut across her neck which was glued back together. A further victim—a male—was cut along the jaw line, requiring 24 stitches. This starting point was upheld by the Court of Appeal.
(e)In Sheppard v R,15 the Court of Appeal substituted a two-and-a-half- year starting point in respect of an offender who had been asked to leave a bar and, frustrated after confirming that request, grabbed the back of the bar’s security guard’s neck and thrust a small screwdriver into his neck. The bruising associated with the attack made it difficult for the victim to eat solids for about a week.
[28] Mr Walsh submits that the injuries in the present case are “not dissimilar” to those suffered in Edwardson and Maihi. He also submits the choice of weapon used by Mr Marsh (a hollow vacuum cleaner pipe) is “arguably less serious” than those used by the offenders in Grimshaw-Jones (a knife) and Sheppard (a screwdriver).
[29] For the Crown Mr Pell submits the offending is more serious than in
Edwardson and Maihi because a weapon was used in circumstances where it had been
13 Ormsby v R [2014] NZCA 73.
14 Grimshaw-Jones v R [2010] NZCA 490.
15 Sheppard v R [2013] NZCA 639.
obtained for the purpose of assaulting a police officer. He submits the other cases referred to by Mr Walsh are simply not comparable.
[30] In support of the four-year starting point, Mr Pell refers to the following decisions:
(a)In R v Wright,16 a three-year starting point was upheld by the Court of Appeal in respect of an offender who, having been arrested, brutally attacked a police officer while in custody. When one hand was uncuffed at the station, the offender punched a constable in the mouth, causing him to fall backwards onto the concrete floor and stunning him. The offender continued to punch the constable in the head and face, throwing over 30 punches while the constable tried to protect himself. The attack spanned several minutes. The constable was treated in hospital for a minor concussion and for extensive cuts and bruises over his face, head and forearms. He suffered from two lacerations around his left eye which required stitching and also suffered from delayed concussion. The effects were prolonged—the constable continued to suffer from frequent dizzy spells, severe headaches, and problems in completing basic cognitive tasks. He later returned to work, albeit on a part-time basis.
(b)In Gillies v R,17 the Court of Appeal upheld a three-year starting point in respect of a prisoner who lashed out at a prison officer, punching him in the right side of the head—knocking him unconscious—before punching him again. The officer suffered swelling to his forehead and jaw, and bleeding from his right ear. He underwent substantial medical treatment and suffered from ongoing physical and psychological effects.
(c)In R v Waihape,18 a three-year starting point was adopted in respect of an offender who struck a detective to the back of the head, causing him to fall on the ground. While on the ground, the offender grabbed the detective’s tie and used it to control the officer, effectively strangling him. The detective briefly lost consciousness, and was punched to the head a number of times. The detective suffered from bruising to the throat, making it difficult for him to swallow. He had a lump to this head, with various cuts and bruises.
(d)In R v Pakaru,19 Chisholm J said a starting point of at least four years was necessary for an offender who recklessly threw a 6.5 kg wheel
rim—discus style—when police arrived at a party. The rim struck a constable in the head, resulting in “shocking” injuries. Those injuries included a fractured skull, a broken nose, broken teeth, a broken collar bone, and lacerations. She could have died. The constable was still facing operations nine months later.
[31] Mr Pell submits Mr Marsh’s offending is more culpable than in Wright, Gillies and Waihape. With respect to Pakaru, Mr Pell points out that although the injuries in that case were more serious, seriousness is only one of many features a sentencing Judge must take into account. Also, the offending in Pakaru was reckless, and the offender had not specifically targeted the police officer with the wheel rim.
Was the starting point too high?
[32] I consider the offending falls within Band 3 of Nuku. I accept that there were three key aggravating factors.
(a)The offending occurred against police officers carrying out their uniformed duties;
(b) It involved assaults to the head; and
(c) Mr Marsh used a weapon to inflict the injuries ultimately suffered.
[33] Other aggravating features are less significant. For example, although
Mr Marsh went inside the premises to obtain the vacuum cleaner pipe, indicating some degree of premeditation, ultimately that decision had a significant degree of spontaneity to it—the decision to grab the pipe was in response to what was occurring at the scene.
[34] Moreover, although Constable Young suffered significant injuries as a result of the offending, the extent to which such injuries are considered an aggravating factor must be kept in context. While the extent of injury will be a factor in terms of placement within a band and serious injury (particularly where potentially fatal or causing long term disability) is one of the identifying aggravating features in terms of initial band placement, all offences of this nature ex hypothesi involve injury.
[35] As to the fact that a weapon was used, although this will always be an aggravating feature, the extent to which it aggravates must have regard to the nature of the weapon and the extent to which it facilitates the administration of violence over and above what might, for example, be inflicted by kicking and punching. Here
Mr Walsh emphasises that the weapon was a hollow vacuum cleaner pipe. But significantly, the photographs confirm that this was not of the usual lightweight aluminium variety; it was of a heavier gauge steel, capable of (and in fact) inflicting considerable injury.
[36] Having considered all the cases identified by counsel I agree with Mr Walsh that the starting point appears higher than it should have been, although not by the margin he suggests.
[37] I accept that the offending involved aggravating features not present in some of the cases for which a three-year starting point was adopted. But a formulaic approach is to be avoided, and although, for example, the offending in Wright (which attracted a three year starting point), did not involve a weapon, the attack in that case was much more prolonged and vicious in nature, and the blows arguably resulted in comparable, if not worse, injuries.
[38] Likewise in Gillies (which again attracted a three year starting point) the victim was as a result of the further blows while unconscious arguably placed at greater risk than was Constable Young, and was certainly in that respect more vulnerable. And the one case where a four year starting point was adopted (Pakaru) involved injuries at a wholly different level of severity.
[39] In my view an appropriate starting point would have been in the order of three years eight months imprisonment.
Were the uplifts too high?
The totality of the offending
[40] Mr Walsh submits that the totality of the offending would be more adequately addressed by way of a nine-month uplift rather than the one year adopted by the Judge. He submits:
The injuring with intent to injure charge involved striking Constable Topia to the body with the vacuum cleaner. The aggravated assault involved the appellant punching the same constable and fleeing the scene. The resulting injuries were bruising, swelling and soreness to the back and neck. It is submitted that the offending is at the lower end of the scale for offending of its type, and the resulting injuries were not at the serious end of the scale.
[41] Mr Pell says the 12-month uplift was appropriate. He says, by reference to Nuku, that this aspect of the offending had three aggravating features: the use of a weapon; the presence of multiple attackers, in that both Mr Marsh and Mr Fisher were resisting and/or fighting police at this stage; and assault of a public official. Had this been stand-alone offending, Mr Pell submits a starting point of between two years and two years and six months would have been appropriate for these charges on a totality basis. He refers to the decision in Burchell v R, which he submits concerned comparable levels of culpability on a charge of injuring with intent, committed against a police officer.20
[42] In Burchell, the offender grabbed a constable by the throat in the context of an arrest, manhandled her backwards towards a footpath at the edge of the road and
crashed her to the ground, with him on top of her. The Constable suffered from abrasions to her back and internal injuries said by the Crown to include a fractured rib. The sentencing Judge adopted a starting point of one year and eight months, which was upheld by the Court of Appeal.
[43] I consider R v Davis to be of some assistance.21 In that case, Mr Davis was sentenced on charges of wounding with intent to injure, wounding with reckless disregard, and unlawful possession of a firearm. Mr Davis punched the victim in the head and struck him in the same location with a blunt instrument, causing multiple wounds. He also kicked him about the head and body. He then discharged a gun, hitting the victim’s right hand. His intention had merely been to shoot near him to scare him. The victim suffered a cut to his scalp, two small lacerations at the back of the head, a laceration to his ear, multiple small wounds scattered over the head, and bruising on the left front and rear base of his scalp. The victim required minor plastic surgery and suffered ongoing psychological effects.
[44] Williams J adopted the firearm offending—wounding with reckless disregard
—as the lead charge, with a two-and-a-half-year starting point. To this, he applied an
18-month uplift for the balance of the offending, which shared many common aggravating features with the primary offending.
[45] I consider it was open to the Judge in this case to apply a one-year uplift to the starting point to take into account the further offending. Like Davis the offending shares common aggravating features. And, importantly, it involved an additional victim who was also a police officer.
Prior offending
[46] The Judge applied an uplift for prior offending. Mr Marsh has several previous convictions. In 2015 he was convicted on charges of assault with a weapon and wilful damage. In 2011 he was convicted on once charge of aggravated robbery. The 2015 offending involved Mr Marsh using a golf club to damage property and to assault another person.
[47] Moreover the current offending was committed while Mr Marsh was subject
to intensive supervision imposed on 5 August 2016 in respect of the 2015 offending.
[48] A six-month uplift may have attracted attention if it had been based solely on Mr Marsh’s previous convictions. However, in combination with the fact that the offending occurred while Mr Marsh was subject to a community-based sentence, such uplift was, in my view, open to the Judge.
The guilty plea discount
[49] Mr Walsh submits that a discount of 25 per cent was warranted for Mr Marsh’s guilty pleas.
[50] He makes that submission in the context of the initial charges of wounding with intent to cause grievous bodily harm (x 2),22 to which it is acknowledged an early offer was made to the Police to plead to two counts of injury with intent to cause grievous bodily harm.23 The Crown did not at that stage believe such charges adequately reflected the degree of culpability of the offending.
[51] At a later time (7 June 2017) the appellant was prepared to resolve the charges by way of a guilty plea to one charge of wounding with reckless disregard24 (to reflect the offending against Constable Young) and one of assault with a weapon25 (to reflect the offending against Constable Topia).
[52] Later again (14 April 2018) an offer was made to plead to charges of aggravated injury (Constable Young),26 and assault with a weapon (Constable Topia).
[53] This rather complicated history is not recorded in the District Court’s sentencing notes. The significant point to emerge from it is, in my view, that there was an initial offer to plead to two significantly more serious charges than those the
22 Crimes Act s 188(1) – maximum penalty 14 years’ imprisonment.
23 Crimes Act s 189(1) – maximum penalty 10 years’ imprisonment.
24 Crimes Act s 188(2) – maximum penalty 7 years’ imprisonment.
25 Crimes Act s 202C – maximum penalty 5 years’ imprisonment.
26 Crimes Act s 191(2) – maximum penalty 7 years’ imprisonment.
Crown ultimately chose to bring and in respect of which guilty pleas were eventually entered.
[54] Mr Walsh relies on Ormsby v R.27 In that case the charge initially laid in June
2012 was one of wounding with intent to cause grievous bodily harm (attracting a maximum 14 year sentence). The case proceeded to callover in January 2013. In February 2013 the appellant offered to plead to injury with intent to cause grievous bodily harm (maximum 10 year sentence). In the week of the trial the Crown offered to amend the charge to wounding with intent to injure (maximum seven-year sentence) which was accepted by the appellant. At sentence he was allowed a 10 per cent discount for guilty plea. On appeal he argued for a 25 per cent discount and was allowed a 20 per cent discount.
[55] Mr Walsh submits that the present facts justify a higher discount because the initial offer was made earlier than in Ormsby.
[56] Mr Pell submits, however, that the Judge’s discount of 19.25 per cent was appropriate. He relies on the following passage from Hessell:28
[62] Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending. The only way in which the many variable circumstances of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing judge, and allowing that judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.
[57] He also says that the initial offer was made to the Police and that by the time the Crown Solicitor had assumed responsibility for the case, the offer was pitched at a lower level.
27 Ormsby v R [2014] NZCA 73.
28 Hessell v R [2011] 1 NZLR 607, [2010] NZSC 135 at [62].
[58] I do not consider this a case where the Hessel caution about double counting is engaged. Rather it is one where the District Court was required to assess the implications of a very early offer to plead to significantly more serious charges than those ultimately progressed. Nor do I consider the fact that the early offer was made to the Police rather than Crown counsel to be of any moment. Police/Crown and the appellant’s counsel may have danced around each other for an extended period but that does not detract from the point already made.
[59] Overall I consider the case close to the paradigm of a guilty plea at the first available opportunity which frequently attracts a 25 per cent discount. The discount should, in my view, have been at or around 14 months29 as opposed to the 12 months allowed. In combination with the reduced starting point that I consider appropriate, appellate intervention is, in my view necessary.
Result
[60] I allow the appeal and substitute for the sentence of four years and two months’
imprisonment one of three years and eight months’ imprisonment. In doing so I adopt:
(a) an adjusted starting point of three years and eight months’
imprisonment;
(b) the District Court’s uplifts and discounts (except for guilty pleas); and
(c) an adjusted guilty plea discount of 14 months.
Muir J
29 Equating to 24 per cent.
6
1