Marster v The Queen

[2005] NZCA 290

IN THE COURT OF APPEAL OF NEW ZEALAND

CA269/05

THE QUEEN

v

JULIUS MARSTERS

Hearing:24 November 2005

Court:Robertson, Baragwanath and Doogue JJ

Counsel:M Starling for Appellant

E M Thomas for Crown

Judgment:29 November 2005 

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

REASONS

(Given by Doogue J)

Introduction

[1]       Julius Marsters appeals against a total sentence of five and a half years imprisonment imposed in the High Court at Christchurch by Fogarty J on 7 July 2005 in respect of two matters.

[2]       The appellant pleaded guilty to a charge of robbery arising from an incident on 19 July 1998.  He was found guilty after trial by jury, at which Fogarty J was the presiding Judge, of attempted sexual violation in respect of an incident on 7 February 1999. 

[3]       The appeal is brought upon the basis that the total sentence is manifestly excessive.  In particular it is submitted that the starting point taken for the robbery offence is too high and the discount allowed for the guilty plea is too low.

[4]       The respondent submits that the total sentence was not manifestly excessive and that the Judge properly dealt with the elements of the sentencing.

Background

[5]       The offence of robbery was committed at approximately 3.00 am on Sunday, 19 July 1998.  The victim, who was a prostitute, was sitting on some steps behind an office block in central Christchurch.  The appellant approached her and there was a brief conversation.  The appellant engaged in some sexual activity with the victim, who was face down on the ground.  The appellant then put his knee on her back and emptied the contents of her handbag on to the ground.  He then got up and ran off.  As a result of the assault, the victim suffered a displaced front tooth. 

[6]       The appellant indicated that he would plead guilty to this offence but absconded while on bail in respect of the next matter.

[7]       The second offence was committed on Sunday, 7 February 1999.  The victim was approached when she was walking in central Christchurch at about 6.20 am in the morning.  At that time she was looking for a ride home.  The appellant, who appeared to be a personable, handsome, polite young man won her confidence and she accepted his offer to take her home.  She got into the car with him.  She fell asleep.  She awoke to find that the appellant had gone past the area in which she lived.  She directed him back towards her home. 

[8]       The appellant used a subterfuge to stop the car.  He dragged the victim through a fence and into a paddock.  He muffled the victim’s attempts to scream by putting his hand over her mouth.  He held her down and initiated sexual conduct that the jury found was with intent to rape.  The victim, fortunately, was quick-witted.  She tricked the appellant into thinking that she would consent.  As a result she was able to run off.

[9]       The trial in respect of this offence did not take place until 2005 because it was only in recent times that the appellant was apprehended and brought back from Australia. 

[10]     The appellant is now 39 years of age, but of course he was some years younger when the offending occurred.  He had a history of prior offending up until 1991, but none of it had a sexual connotation. 

[11]     The appellant endeavoured to explain the first offending as being a consequence of the prostitute trying to take advantage of him.  It was submitted on his behalf that the level of violence was minimal and that the guilty plea was a strong mitigating factor.

[12]     Because Fogarty J saw a degree of similar conduct in the crimes he asked for a psychologist’s report in addition to the usual pre-sentencing report.  The psychologist’s report confirmed his view that the appellant had a severe behavioural problem sufficient to warrant him being at risk of re-offending.  It was assessed as being a moderate to high risk of offending.  It was noted, however, that assessment could be moderated because of more recent events.  Nevertheless, the psychologist recommended that, should the appellant receive a prison sentence, he be referred to the psychological service for offence-related treatment aimed at addressing the sexual and violent offending related risk factors.

[13]     The first victim did not wish to make a victim impact report as she wanted nothing more to do with the case.  The second victim spoke out as to what she had been put through by the appellant.  She was upset, particularly at having to give evidence and having the offence characterised by the appellant as just a misunderstanding, which added further insult.

Judge’s sentencing remarks

[14]     Having traversed the background, the Judge, with reference to R v Mako [2000] 2 NZLR 170, took a three-year starting point for the robbery and discounted it by six months for the plea of guilty and imposed a sentence of two and a half years. He took the view that people in the category of night workers such as prostitutes are entitled to protection.

[15]     In respect of the attempted sexual violation the Judge took a starting point of three years imprisonment and saw no reason to discount that figure.

[16]     The Judge was not prepared to give any weight to a letter expressing remorse.  In his view it was clear that the appellant had done his best to avoid conviction at trial.  He had given evidence in a clever and sophisticated way, which rather belied his suggestion that he had only understood the significance of what he had done during the course of the trial. 

[17]     The Judge addressed the principle of totality of sentencing.  He spelt out that he intended the sentences to be cumulative.  He noted the consequence was a total sentence of five and a half years imprisonment.  He then said:

… In my view, there is a similarity of offending; that you are an intelligent person; that you have gone to considerable lengths to avoid facing up to your responsibility for these offences; you absconded on bail; and you showed in the way that you conducted your defence and the way you gave evidence, in my view, that you had callous disregard for the feelings of the [second] victim.  I think you are the sort of person that the community fears. …

[18]     The Judge made clear that he hoped the appellant would be referred to the psychological service by the prison authorities for offence-related treatment aimed at addressing the sexual and violent offending related risk factors.

Submissions

[19]     The appellant’s general submission is that the total sentence was manifestly excessive.  It is first submitted in support of that proposition that the Judge took too high a starting point for the robbery.  It is submitted that the Judge was not entitled to rely on any special vulnerability of the prostitute. The offending, it is said, would properly be comparable with street robberies.  Although the offence was pre-Mako a starting point between 18 months and three years would have been open to the Judge.  However, it is submitted that given the very modest force used and the absence of any information as to what was stolen or the effect upon the victim, a starting point of 18 months would have been appropriate. 

[20]     The appellant seeks to draw some support from R v Taimanu CA377/02, 20 February 2003.  However, in that different case this Court adopted a starting point of two years and nine months, not markedly different from the three years adopted by the Judge here. 

[21]     It is further submitted that as at that time prostitution was not a lawful occupation it was inappropriate to put the victim into a category of persons deserving special protection.  However, even if it was appropriate to make some upward adjustment, it was submitted that a two-year starting point would have been more than adequate.

[22]     It is then submitted that a discount of six months would be appropriate in respect of a lesser starting point, but that if the higher starting point was retained, a greater discount should have been given.  It is submitted on the basis of the police job sheet that without the plea of guilty, it is likely that there would have been no conviction as the victim indicated that she had no wish to give evidence at trial.  Thus it is said the appellant was deserving of a greater discount than that allowed.

[23]     The appellant, properly, did not develop a written submission that the Judge wrongly took into account that the appellant absconded on bail.  It is clear from the sentencing remarks that it did not involve any increase of sentence but was relevant to the sentencing.

[24]     In response to these submissions the Crown submitted that neither the sentence of two and a half years imprisonment for the robbery nor the total sentence of five and a half years imprisonment were manifestly excessive.

[25]     It is submitted for the Crown that the first victim’s status as a prostitute was relevant as prostitutes have long been recognised as especially vulnerable by reason of their profession regardless of their position in law; R v Collie CA11/94, 19 May 1995.  It was thus appropriate, it is said, that the Judge adopt the same position in respect of the first victim as in respect of any other victim who by reason of their occupation is vulnerable.  It is submitted for the Crown that a starting point of up to three and a half years imprisonment would have had to be open to the Judge.

[26]     It is further submitted by the Crown that the three year starting point adopted was opened to the Judge, given the force used by the appellant constituted actual violence with significant consequences for the complainant who suffered a displaced front tooth.  It is noted that even on the appellant’s own account he did take property from the victim’s bag.

[27]     It is submitted that the six month discount for the guilty plea was appropriate having regard to the lateness of the plea, just four days before the appellant was to face trial and given that it was subsequent to the appellant having absconded to Australia.

[28]     It is further submitted that in any event the overall sentence imposed cannot be said to be manifestly excessive as the offending against the second victim could have justified a significantly higher sentence than the three years imprisonment imposed, had it been dealt with separately.

Discussion

[29]     We have no doubt that the total sentence of five and a half years imprisonment was well within the Judge’s sentencing discretion, however the sentence was structured.  We also have no doubt that the Judge was entitled to structure it in the way that he did, even though another Judge might have reached the same result by a slightly different course.

[30]     We accept the submissions for the Crown that the Judge was entitled to treat the first victim in the same way as if she was in some other category of persons who are at risk because of the circumstances of their occupation.  Nothing of merit has been put forward to support the submission the starting point for the robbery was excessive.  Notwithstanding that it is a pre-Mako case, three years imprisonment has to be within the available range given all the circumstances of the offence.  Given the lateness of the plea of guilty, the discount given was entirely appropriate.

[31]     Ultimately the issue is one of whether the total sentence is manifestly excessive for the total culpability after the aggravating and mitigating circumstances are taken into account.  We have, significantly, heard nothing to suggest that might be the case.  We are satisfied the total sentence was available to the Judge.

Result

[32]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington