Marsters v R
[2011] NZCA 505
•11 October 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA791/2010 [2011] NZCA 505 |
| BETWEEN RICHARD MARSTERS |
| AND THE QUEEN |
| Hearing: 5 October 2011 |
| Court: Stevens, Ronald Young and Andrews JJ |
| Counsel: P J Kaye for Appellant |
| Judgment: 11 October 2011 at 11.00 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
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 struck by a second shot. One shot struck Mr Mansell in the face; entering on the right side of his nose, deflecting around his jaw, and exiting by his ear. The other shot passed through the flesh of Mr Mansell’s bicep. Mr Mansell staggered to the ground and the appellant then hit him about the head several times with the pistol. In addition to the bullet wounds Mr Mansell suffered grazes, cuts and bruises to his head, face and upper body but was fortunate not to have serious ongoing injury.
Sentencing
The Judge accepted as aggravating features of the offending the use of a weapon; a sustained high level violence; the impact on the victim – which included stress to his family members and the breakup of his relationship with his partner, negative impact on his own wellbeing and on his business affairs; an element of premeditation; and the use of the gun in a public place.[4]
[4] At [23]–[24].
The Judge adopted a starting point of 11 years. He concluded that the offending did not fall into the most serious category of its type but only “by a narrow margin”.[5] The Judge observed that generally the most serious cases involved greater degrees of premeditation or involved attacks against more than one person or against police officers. Nevertheless, it was very serious offending of its kind.
[5] At [26].
Next the Judge gave an uplift of six months for the appellant’s previous “lengthy” criminal history to arrive at a provisional sentence of 11 and a half years before taking mitigating factors into account.[6] The Judge disagreed that age was a mitigating feature. Although he considered the appellant’s health to be relevant, he attached no weight to it.[7] That produced an end sentence of 11 and a half years.
[6] At [28].
[7] At [29].
The Judge then turned to consider the totality principle in light of the appellant’s sentence of four years for unrelated drug offending.[8] Taking that into account the Judge considered the effective total sentence of 15 and a half years offended the totality principle. Accordingly he reduced the sentence on the attempted murder charge by two years to nine and a half years.[9] He imposed a concurrent sentence of three years on the charge of assault with a weapon.
Submissions
[8] Referred to at [1].
[9] At [31].
Mr Kaye, for the appellant, presented comprehensive written submissions in which he submits firstly that having regard to the authorities the starting point of 11 years was too high. In particular he submits that excessive weight was attributed to premeditation, firing a gun in a public place and to the level of sustained violence as aggravating features.
With respect to premeditation, Mr Kaye submits that the starting point was out of line with other authorities in which there was a greater degree of premeditation and moreover that premeditation was not an issue at trial. With respect to the fact the gun was fired in a public place, Mr Kaye submits context is important. The offending occurred at night outside a vacant building and the evidence suggested that there were no members of the public in the vicinity. He contrasts this case with the hypothetical description in R v Taueki of firing a firearm “indiscriminately in a public place”.[10] Finally on this ground, he submits that the attack was “not prolonged or gratuitous” and did not fit its billing as a high level of sustained violence. He submits a starting point in the range of 9–10 years appropriately reflects the criminality in the appellant’s offending.
[10] R v Taueki [2005] 3 NZLR 372 (CA) at [31](d).
On the totality ground, Mr Kaye submits that the effective total sentence of 13 and a half years is a “crushing” sentence that offends against the principle of totality.
For the respondent, Ms Edwards supports the Judge’s view of the seriousness of the offending. She submits that, while the premeditation was at the lower end of the scale, it was nevertheless a feature of the offending. While the location and time of day lowered the risk to the public, there remained danger to the public: both Mr Mansell’s nephew and the appellant’s partner were in close proximity and there was a restaurant serving diners next door.
Ms Edwards submits that the overall criminality of the offending should not be minimised. Mr Mansell was hit about the head and had the gun pointed in his face, the threats and assault continued even while Mr Mansell retreated. He was shot twice and after that was hit over the head with the gun. Although this assault resulted in a separate charge, it was properly taken into account in assessing the totality of the offending given attempted murder was the lead charge.[11] Ms Edwards submits that the violence was properly characterised as gratuitous. Finally, she submits the Taueki bands provide a useful analogy and that the 11 year starting point, placing the offending in the middle of Band 3, was within the available range.
[11] Sentencing Act 2002, s 85(4)(a).
As to totality, Ms Edwards provided the Court with the sentencing notes from the drug offending that resulted in a four year sentence. She submits that the two year discount was appropriate. The sentence could not be described as crushing, given the appellant’s 30 year history of violent and drug offending (which occurred within 9 days of the current violent offending) and his lack of remorse.
Discussion
Starting point
We find the submissions for the appellant on starting point unpersuasive. The starting point adopted by the Judge are properly characterised as falling in the middle of band 3 offending in terms of this Court’s guideline in Taueki. We are satisfied that such outcome was well within the scope of the permissible range. Our reasons are as follows.
First, none of the authorities relied on by the appellant in relation to the premeditation submission are directly analogous. While they share certain features with the appellant’s offending, we consider it is artificial to focus on those shared features and ignore the whole of the circumstances in which the starting points were reached in other cases. Of course consistency with like cases is a fundamental principle in sentencing.[12] But that is to be balanced against the need to “achieve justice in the individual case”.[13] For that reason, detailed comparison with the facts of other cases has been said by this Court on many occasions to be of limited value. The whole of the circumstances in the individual case are to be assessed in combination, and do not operate in isolation. The case of R v Bolt[14] relied on by the appellant is clearly distinguishable from the present and requires no further comment.
[12] Sentencing Act, s 8(e).
[13] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38].
[14] R v Bolt HC Rotorua CRI-2009-077-1497, 28 October 2010.
With respect to the suggested comparison with R v Phillips,[15] the offenders’ murderous intent was manifest in their attack on a fellow inmate. They surprised the victim in his cell, with one slashing his throat with a purpose-built razor weapon while the other held him down.[16] To that extent it could be said that there was a greater degree of premeditation than in this case. The sentencing Judge adopted a starting point of 10 years. But to stop there is to ignore the fact that the appellant followed up the first shot with a second while Mr Mansell was staggering concussed and then again with blows to his head with the weapon. Hence the repeated shots and subsequent blows with the pistol distinguish this case from Phillips.
[15] R v Colliers [2011] NZCA 482 (note that this appeal was heard jointly with Mr Phillips’).
[16] R v Phillips HC Napier CRI-2009-020-4936, 26 November 2010.
Secondly, as Ms Edwards points out, the Judge acknowledged that this was not a case involving a high degree of premeditation. However, as Taueki recognises, premeditation is a matter of degree and for example may be indicated by “a period of a few minutes or so after a perceived slight during which the offender decides to take revenge”.[17] The evidence was that the appellant deliberately changed direction to follow Mr Mansell’s car and got out of his car armed with the gun. There was also evidence that he asked Mr Mansell’s nephew if he had been driving. Both facts are consistent with the Judge’s characterisation of the attack as a premeditated one and that factor was therefore appropriately taken into account as an aggravating feature.
[17] At [30].
Thirdly, we accept that the degree of risk in firing the firearm in a public place was lessened by the time and place of the offending. But as the Judge recognised, the risk was not entirely removed. There remained a risk to other members of the public. Accordingly, it was appropriate to take that risk into account as an aggravating feature of the offending; it was a feature separate from the use of the weapon in itself and thus there was no double-counting. Taueki does not suggest that the firing of a firearm in a public place must be indiscriminate before it can be taken into account as an aggravating feature.
Fourthly, we consider it was open to the Judge to characterise the attack as displaying “a high level of sustained violence”. The violence continued long after the appellant had achieved his retributive or vengeful purpose. True, it cannot be considered in the same light as a gang attack or a case where an offender returns for a second attack. But the Judge did not purport to characterise it in that way. We emphasise that the appellant shot his victim in the face and that in that regard it is perhaps fortunate that Mr Mansell was not fatally injured. This was without question a case of very serious violence.
We dismiss this ground of appeal.
Totality
The sentence imposed in the District Court for the appellant’s drug offending assumes real significance on this ground of appeal. We have considered the Judge’s sentencing remarks on that occasion. The appellant, already wanted by police,[18] was seen driving in his car on the open road on 22 November 2008. The police decided to stop him. There was a high speed chase during which his car briefly touched the police patrol car pursuing him. His car was only stopped by road spikes. A search of the vehicle revealed cannabis and methamphetamine in reasealable plastic bags, cash, electronic scales, tick lists, empty resealable bags and additional point bags of methamphetamine and ounce bags of cannabis and further amounts of cannabis.
[18]This was in relation to his attempted murder of Mr Mansell on 13 November 2008.
The Judge described the car as a “mobile dispensary for illegal drugs” and classified the methamphetamine offending as within band one of R v Fatu[19] and the cannabis offending as within band two of R v Terewi.[20] No discount was available for remorse or guilty plea. The appellant’s pre-sentence report was found by the Judge to make “depressing reading”. The appellant refused to cooperate by providing further information for an updated report prior to Clifford J sentencing him on the attempted murder charge.
[19] R v Fatu [2006] 2 NZLR 72.
[20] R v Terewi [1999] 3 NZLR 62.
Mr Kaye accepted that at the sentencing hearing he addressed the Judge on the totality issue. He had suggested that a reduction of two years was appropriate. This was the figure adopted by the Judge when fixing a total overall sentence of 13 years and six months imprisonment.[21]
[21] At [31].
We are satisfied that this was a proper assessment of the totality issue in all the circumstances. When considering the overall criminality of the two sets of offending – nine days apart – the Court was dealing with very serious violent incident which was by a narrow margin just short of the most serious of its type. The drug offending involved both methamphetamine and cannabis and represented repeat drug dealing offending. The appellant is clearly in the recidivist category as a drug dealer.
The appellant has been a serial offender for his entire adult life and has been sentenced to terms of imprisonment on multiple occasions. The pre-sentence report predicts he will be likely to appear before the Court in future.
In our view, 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 does not offend the totality principle. Indeed we consider it was wholly appropriate.
We dismiss this ground of appeal also.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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