Marsters v The Queen

[2020] NZHC 3101

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-369

[2020] NZHC 3101

BETWEEN

ELIZABETH MARSTERS

Appellant

AND

THE QUEEN

Respondent

Hearing:	23 November 2020
Appearances:	D Taumihau and C M Hallaway for Appellant S O’Connor for Respondent
Judgment:	23 November 2020

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Auckland

MARSTERS v R [2020] NZHC 3101 [23 November 2020]

[1]    Ms Marsters pleaded guilty in the District Court to a charge of injuring her partner with reckless disregard for his safety. On 7 August 2020 Judge P J Sinclair sentenced Ms Marsters to six months home detention together with post-detention conditions.1

[2]    Ms Marsters appeals against sentence on the basis that the Judge adopted a starting point for her offending that was too high. She says this error was compounded by the fact that the Judge failed to sentence her to community detention, being a less restrictive sentencing option than that of home detention.

The charge

[3]    The charge was laid as a result of an incident that occurred on the morning of 27 November 2019. On that date Ms Marsters was at her home address with her partner. They had been drinking heavily the night before and were both still significantly affected by alcohol. An argument arose and Ms Marsters picked up a large kitchen knife. This was approximately 30 centimetres in length. She then made threatening movements towards her partner with the knife. In doing so she inflicted a stab wound to her partner’s abdomen that was approximately five centimetres in length and one centimetre in depth. This required five stitches to repair. When interviewed by the police, Ms Marsters told them she could not remember anything about the incident because she was too intoxicated.

The Judge’s decision

[4]    The Judge took a starting point of 24 months imprisonment for the following reasons:2

[8]        There are two guideline decisions, including R v Taueki and Nuku v R, which provide some guidance in setting your starting point. I am also aware of your counsel’s submission that I need to take into account that this is a case involving reckless disregard rather than intention. What I need to do is consider your particular aggravating features to assess the appropriate starting point.

[9]        In my view there were three aggravating features. First, you used a weapon, a large kitchen knife. Secondly, the victim suffered a wound

1      R v Marsters [2020] NZHC 18532.

2      R v Marsters, above n 1.

approximately five centimetres in length which required stitches and medical care. You wounded [the victim] in the abdomen area which heightens the risk of severe injury because many vital organs are in the abdomen area. You have heard him speak today and he has addressed me about his relationship with you. He has quite clearly forgiven you for your violence that night and wants to continue his relationship with you. He urges me to consider a sentence other than a term of imprisonment. Thirdly, a moderate level of violence was involved, because you made stabbing gestures prior to striking him with a knife.

[10]      In my view, your offending sits within the band 2 of Nuku where a starting point of up to three years’ imprisonment is available. The Crown has referred me to the decision of R v Waitokia where the victim was stabbed with a knife in the leg by the defendant about 20 centimetres below the knee, leaving a wound of about two centimetres in length. In that case a starting point of about two and a half years was adopted.

[11]      Taking into account your particular aggravating features, in my view a starting point of 24 months’ imprisonment is appropriate.

(footnotes omitted)

[5]    The Judge then acknowledged she needed to apply an uplift to reflect the fact that Ms Marsters has a previous conviction for very similar offending. This followed an incident that occurred on 4 August 2018. It involved another drunken argument between Ms Marsters and her partner. On that occasion Ms Marsters stabbed her partner in the head with a knife. On 3 October 2018, Ms Marsters was sentenced to 12 months supervision with special conditions on that charge.

[6]    The Judge did not specify the level of uplift that was appropriate to reflect the earlier conviction. Instead, she factored it into the discount to be applied for mitigating factors. Dealing with that issue the Judge observed:3

[18] I consider a global discount of 25 per cent bearing in mind the uplift  that I must impose for your previous conviction, balanced against your efforts towards rehabilitation, time spent on EM bail and your guilty plea is appropriate. So, on those calculations, I reach a sentence of around 18 months’ imprisonment.

[7]    The Judge then turned to consider whether a community-based sentence should be imposed. She acknowledged this was appropriate because the Crown was not seeking a custodial sentence, Ms Marsters had entered a guilty plea and was currently living in an institution where she was obtaining rehabilitative assistance to address her

3      R v Marsters, above n 1.

addiction to alcohol. The Judge considered it would be of benefit to Ms Marsters, her partner and the wider community if she was to receive a sentence that continued to address these issues.

[8]    The Judge also took into account the fact that Ms Marsters had spent approximately three months in custody on the present charge. This reduced the sentence to one of 12 months imprisonment for the purpose of calculating a community-based electronically monitored sentence.

[9]    The pre-sentence report had recommended a sentence of community detention together with community work. The Judge decided against this option, and in favour of a sentence of home detention, in the following paragraphs of her decision:4

[21]      I was considering community detention, but in my view that would have need to be coupled with community work to fully address the purposes and principles of sentencing. It would not be appropriate in my view for you to attend community work because you are at the Grace Foundation and the focus of the Grace Foundation is your rehabilitation.

[22]      In my view, the more appropriate sentence is home detention to reflect the nature of this offending and your previous conviction while at the same time enabling you to attend to rehabilitation at the Grace Foundation. So, a sentence of six months’ home detention is imposed followed by post-detention conditions on the same basis as recorded in the pre-sentence report.

The starting point

[10]   On Ms Marsters’ behalf Ms Hallaway submits that the Judge adopted a starting point that was too high. She argues that the Judge was influenced in selecting a starting point of 24 months imprisonment by her view that the offending sat within band 2 identified in Nuku v R, where a starting point of up to three years imprisonment is available.5 As Ms Hallaway points out, Nuku applies to offences involving an intent to injure and not to charges involving injuring or wounding with reckless disregard for the victim’s safety. She submits that a starting point of no more than 15 to 18 months imprisonment was appropriate even taking into account the identifying aggravating features the Judge identified.

4      R v Marsters, above n 1.

5      Nuku v R [2012] NZCA 564; [2013] 2 NZLR 39.

[11]   It is not clear from the Judge’s sentencing remarks whether she was influenced by the principles identified in Nuku in selecting the starting point. The principles identified in Nuku obviously provide some guidance in cases involving injuring with reckless disregard for the victim’s safety. The sentencing bands identified in that case are, however, not directly applicable because the charge of wounding or injuring with intent to injure involves a form of specific intent whereas the charge Ms Marsters faced does not involve any form of specific intent. Rather, it requires an appreciation of the risk of injury and a decision to carry on with the act of injuring or wounding the victim notwithstanding appreciation of that risk.

[12]   The waving of a large kitchen knife in direct proximity to the person of another involves an obvious risk to that person’s safety. Secondly, the fact that the gesturing occurred in the vicinity of the victim’s abdomen is of considerable significance because that is an area of the body that is particularly vulnerable to wounds from a knife. Thirdly, the offending in this case involved the infliction of a not insignificant wound that required stitches and medical care. It is clearly a matter of good luck rather than good management that the victim did not suffer a more severe injury. In addition, the stabbing had been preceded by threatening gestures made with the knife.

[13]   The maximum sentence for the present offence is one of five years imprisonment. The starting point the Judge selected is less than half the maximum available. Of its type I consider it was a relatively serious form of offending because of the aggravating factors identified. That being the case, I do not consider the starting point of 24 months imprisonment can be said to be outside the available range. I also note that counsel who appeared for Ms Marsters at the hearing in the District Court advocated a starting point of between 18 and 20 months imprisonment rather than the lower range of 15 to 18 months for which counsel now argues.

Community detention or home detention?

[14]   The only remaining issue is whether the Judge ought to have imposed a sentence of community detention rather than home detention.

[15]   Ms Hallaway submits the Judge erred by proceeding on the basis that it would not be possible for Ms Marsters to perform or carry out a sentence of community work

if she was required to serve an electronically monitored sentence at the facility where she is currently residing. I do not read the Judge’s remarks as proceeding on that premise. Rather, I read her comments at [22] as reflecting her conclusion that the more appropriate sentence in the present case was one of home detention because this properly reflected the nature of the offending and the previous conviction whilst at the same time providing for Ms Marsters’ rehabilitation.

[16]   Like the Judge, I consider the nature of the offending in the present case to be sufficiently serious to warrant a sentence of home detention rather than community detention as recommended in the pre-sentence report. The seriousness of the present offending is aggravated significantly by the previous conviction in 2018 for very similar offending. I therefore consider the Judge did not err in principle by imposing a sentence of home detention rather than community detention.

Result

[17]The appeal against sentence is accordingly dismissed.

Lang J