The appellant, Richard Marsters, was convicted of one count of attempted murder and one count of assault with a pistol after trial by jury at the High Court in Hamilton. The trial Judge, Clifford J, sentenced the appellant to a term of nine and a half years imprisonment on the lead charge of attempted murder and imposed a six year minimum period of imprisonment.[1] That sentence was cumulative on the four year term imposed by Judge McGuire in the District Court at Rotorua on one charge each of possession for supply of cannabis and methamphetamine respectively.[2]
[1] R v Marsters HC Rotorua CRI-2008-063-5327, 22 October 2010.
[2] R v Marsters DC Rotorua CRI-2009-063-1591, 1 April 2010.
The appellant appeals against his sentence on the grounds that the starting point Clifford J adopted was too high and that the effective end sentence, taking into account that imposed in the District Court, offends the totality principle. He does not challenge the imposition or length of the six year minimum period of imprisonment.
The appellant has abandoned an appeal against his conviction.

Factual background

The factual background of the appellant’s offending can be briefly stated. We draw upon the convenient summary in the Judge’s sentencing remarks.[3]
[3] See at [3]–[9].
At around 9 pm on 13 November 2008 the appellant was driving his station wagon in central Rotorua. He stopped for traffic lights and when the lights turned green he slowly pulled away. The vehicle behind him flashed its lights and honked its horn at the appellant for doing so too slowly. Mr Robert Mansell and his nephew Mr Murray Raimona were in that vehicle. They travelled on a short distance and alighted from their car into a car park outside a gym they were renovating.
In the meantime the appellant had turned around and followed them. He pulled over on the road beside the gym. He got out of his car and confronted Mr Mansell, asking him what he had been doing. As Mr Mansell approached, they exchanged words and then the appellant hit Mr Mansell with a pistol he was carrying in his pocket. Mr Mansell went to retaliate but the appellant then drew his gun, pointing it at Mr Mansell’s head and threatening him. As Mr Mansell retreated he was struck in the chest with the gun. A tussle ensued, with Mr Mansell’s nephew joining in, and the appellant was wrestled back up against or over the bonnet of his car. There the appellant managed to free his hand and fire a shot which struck Mr Mansell, who, as he moved away, was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marsters v R

Details

AGLC: Marsters v R [2011] NZCA 505
Case: [2011] NZCA 505
Decision Date: 11 October 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Richard Marsters appealed against his sentence imposed by Clifford J at the High Court in Hamilton, where he was convicted of one count of attempted murder and one count of assault with a pistol. The appeal was dismissed by Stevens, Ronald Young, and Andrews JJ. Marsters was sentenced to nine and a half years imprisonment for attempted murder and a concurrent three-year sentence for assault with a weapon. The appeal was against the starting point of 11 years and the effective total sentence of 15 and a half years, which Marsters argued offended the totality principle.

The Court found the submissions for the appellant on starting point unpersuasive. The starting point adopted by the Judge was properly characterised as falling in the middle of band 3 offending, according to the Court's guideline in Taueki. The Court was satisfied that such outcome was within the scope of the permissible range. The Court rejected the appellant's argument that excessive weight was attributed to premeditation, firing a gun in a public place, and the level of sustained violence as aggravating features. The Court also found that the Judge appropriately characterised the attack as a premeditated one and took that factor into account as an aggravating feature. Additionally, the Court considered it was open to the Judge to characterise the attack as displaying "a high level of sustained violence."

The Court found the submissions on totality unpersuasive as well. The sentence imposed in the District Court for the appellant's drug offending assumed real significance on this ground of appeal. The Court was satisfied that this was a proper assessment of the totality issue in all the circumstances. The Court found that taking into account the circumstances of his drug offending and his attempted murder of Mr Mansell, a total effective sentence of 13 years and six months did not offend the totality principle.

In conclusion, the appeal against sentence was dismissed, and the original sentence imposed by Clifford J was upheld.

Orders