R v Marsh

[2016] NZHC 747

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-070-000682 [2016] NZHC 747

THE QUEEN

v

JORDAN TERRANCE MARSH

Hearing:	18 April 2016
Counsel:	R Jenson for Crown CG Tuck for Defendant
Judgment:	18 April 2016

SENTENCING NOTES OF ASHER J

Solicitors/Counsel:

Hollister-Jones Lellman, Tauranga.

CG Tuck, Tauranga.

R v MARSH [2016] NZHC 747 [18 April 2016]

Introduction

[1]      Jordan Marsh, it is my duty now to sentence you following your convictions in this court of three charges of sexual violation by unlawful sexual connection, one of sexual violation by rape, one of kidnapping and abduction, one of attempted aggravated injury, three charges of threatening to kill, one charge of sexual conduct with a young person, and one charge of indecent assault.

[2]      Now it is necessary for me first to summarise what you have done.  There were four victims.

[3]      The first two victims were at their home at the time of the offending.  Earlier that night they were joined be a group of male friends for drinking and socialising. Ultimately at the end of the night by about 2 am the others had left and you were left at the address. You had been intoxicated.  On the basis of trust, victim 1 allowed you to sleep on top of her bed in your clothes while she slept under the sheets in her bed clothing.

[4]      A few hours later you woke up and went into the second victim’s room.  The first victim observed you had no pants on. You climbed into the second victim’s bed. You held her wrist tightly and started kissing her before moving on top of her.  She indicated throughout that she did not want you to do any of this and pushed you and asked you to leave, and eventually you did.   This constitutes the indecent assault charge.

[5]      You then went back to the first victim’s bedroom.  You demanded that she perform oral sex on you.  At a point you threatened to kill her if she did not do what you wanted.  She gave you oral sex for about 30 seconds.  You then demanded more and began strangling her.   You then pulled down her pants and underwear and engaged in sexual intercourse.  Victim 1 was crying throughout and asking you to stop.  You ignored her pleas and carried out full sexual intercourse and ejaculated. You threatened to harm her and her 18 month old son if she reported anything.

[6]      For  these  actions  you  were  charged  with  unlawful  sexual  connection, threatening to kill and sexual violation by rape.

[7]      The third charge relates to another person, the third victim, who was then aged 14.  She was a friend of your sister.  You had consensual sex with her.  There was an age difference of approximately five years.

[8]      The fourth and most serious offending, because of its aggravating features, related to the fourth victim.  You contacted her at her home and asked her to come around, telling her that a very close friend needed her urgent help.  You were very insistent, and drawing on her close friendship and sense of loyalty to her friend you persuaded her to come.  She was dropped off and went into your house, and into the room where you were.

[9]      When she was inside the room you told her that her friend was not in fact at the house but elsewhere.  When she got up to leave the property you came up behind her and placed your forearm around her neck, choking her. You told her that you had a knife and she felt a jab of a sharp object in her side.  She assumed it was a knife. You told her that you would let her go if she performed oral sex on you, and you made threats to kill her if she did not.  She pleaded with you to let her go, but you refused.  You forced her onto the bed placing both hands around her neck, choking her and causing her to struggle for breath.  You were insistent that she perform oral sex on you, and frightened for her safety she eventually complied.  You forced her head onto your penis until you ejaculated in her mouth.

[10]     The victim then sought to leave but you would still not let her go.   You demanded that she take some prescription drugs that were in the bedroom, being quetiapine.  You gave her several pills.  She managed to drop some of them on the floor and only placed a couple in her mouth, which she pretended to swallow.  She held them in her mouth and you searched her mouth with your fingers, found the pills and became angry.  You gave her some more pills and a bottle of beer to help her swallow them.  She in fact did not do so, as she disguised drinking the beer with spitting the pills into the beer.

[11]     You forced the victim to have oral sex with you a second time and then asked here to remove items of clothing.   Victim 4, believing that you were intending to rape her, told you that she suffered from a sexually transmitted disease and that it

would be very painful for her to have sex and would make her scream.  She also told you that she suffered from a serious illness and that she was not feeling well.  She asked you what it would look like to have a dead female in your bedroom with drugs in her system and marks on her neck.  You considered this and reluctantly allowed her to leave.

[12]     What is now clear is that the time when you committed this offending you were on bail and on a curfew at your home.  You therefore needed to manipulate someone to come around to your home if you were going to have any interaction with them.

[13]     For this offending you were charged with two charges of sexual violation, kidnapping, attempted aggravated injury and threatening to kill.

[14]     Three of the victims have all suffered very considerably as a result of your actions.  Indeed, for the first and fourth victims whom you assaulted most grievously, the effects have been extremely severe and long term.   Their lives have been significantly blighted by your actions and nothing that I can say can really do justice to their impact. The second victim has also suffered.

[15]     Prior to trial you received a sentence indication from Brewer J.  He indicated a starting point of 16 years’ imprisonment on all charges, reduced to 11 and a half years’ imprisonment taking into account youth and guilty pleas.  He had before him all the charges on which you have been convicted, but it is to be noted that in addition, in relation to victim 3, there was a sexual violation by rape charge.

Starting point

[16]     As part of this sentencing process it is my duty to fix a starting point.  The sentencing exercise is not straightforward given the number of charges you face and the four different victims.  I will start by assessing the correct starting point for the most serious charges relating to the fourth victim.

[17]     The case which sets out the appropriate bands for sentencing in New Zealand known at R v AM.1   In themselves, the two oral sex charges would have fallen at the lower end of band one as set out in the bands of offending summarised in R v AM. You would be at the bottom end of band one because the scale of the penetrative sex was not of the most serious order, devastating as it would have been for the victim.  I note that there were two instances of this.

[18]     However, there are most significant aggravating factors.   The first is the element of premeditation and breach of trust.  From your position at home you must have decided to lure the victim to your house by calling on her better nature and her affection and sense of loyalty to her friend, and on her trust for you.  She came to help her friend, trusting you.  You lied to her and you set her up.  In itself this is an aggravating factor to a serious degree.   I appreciate that there is a distinct overlap between the premeditation and breach of trust if they are considered as separate aggravating factors.

[19]     Then there is the violence – the use of a knife.  It must have been terrifying for the victim to feel a sharp object against her back.  There is a severe strangulation, where she came close to going unconscious. There is the threat to kill as well.

[20]     Just considering these aggravating factors alone, in my view your offending falls clearly within band two of R v AM where the range is seven to 13 years’ imprisonment.  The Crown indeed has argued for band three.  The Crown says the right starting point is 13 to 14 years’ imprisonment for this offending.  Mr Tuck has not put forward a specific figure.

[21]     Brewer J in his sentencing indication had adopted a starting point of 10 years’

imprisonment.  Brewer J also uplifted that 10 year starting point by another year to

11 years’ imprisonment to take into account that the offending had occurred while you were on EM bail.  I see this is an extraordinary aggravating factor in this case, best taken into account at this point in sentencing in relation to the culpability of the

offending.  It warrants an uplift from any otherwise available starting point of at least

1      R v AM [2010] NZCA 114.

one year.  In a way your offending was tailored to get around the fact that you were on EM bail.

[22]     Taking all these factors into account I consider that the right starting point for the offending against the fourth victim is 12 years’ imprisonment, a year higher than that indicated by Brewer J.   I turn to the right starting point in relation to the offending against the first and second victims.

[23]     The Crown suggests a start point of eight to nine years’ imprisonment for the offending against the first victim.   There was full sexual intercourse carried out against her, as well as some degree of premeditation in that you went back to the room after being rebuffed by the second victim, and it involved a threat to kill and also a threat to her child.  There was also the separate incident of oral sex.  In my view  the  right  starting  point  for  this  offending  is  eight  and  a  half  years’ imprisonment.   I note that Brewer J indicated a starting point of nine years’ imprisonment.

[24]     In relation to the indecent assault on the second victim, I consider that a sentence of 12 to 18 months’ imprisonment would have been appropriate, and in the circumstances will fix a starting point of one year, the same as that indicated by Brewer J.

[25]     Finally there is the starting point in relation to the third victim.  She has not provided a victim impact report and there is no indication of any aggravating circumstances of any sort.  Given that it was a consensual act and there was an age gap of approximately five years, I consider the Crown proposed starting point of two and a half to three years’ imprisonment for this to be too high, and would fix a starting point of one and a half years’ imprisonment.   Brewer J did not have to consider this issue.

[26]     Now when I add all these sentences up together they come to 23 years’ imprisonment.  This is lower than the total calculated by Brewer J of 27 years, but it reflects the fact that you have not been convicted of sexual violation of victim 3.

[27]     There are two ways to approach the end starting point.  Clearly in my view

23 years’ imprisonment would be a far too crushing.  It is preferable to approach it rather than on the basis of a deduction from that 23 years, by considering an uplift on the principle sentence of 12 years’ imprisonment for the fourth victim.

[28]     I consider that the appropriate uplift taking into account the very serious offending against victim 1, the offending against victim 2, and the offending against victim 3, to be an uplift of four years’ imprisonment.

Personal factors

[29]     So I look at the starting point of 16 years and turn to personal factors relating to you Mr Marsh.  There is no argument for an aggravating factor based on your past record, although I do note that you have a number of previous offences.  However, they do not involve sex offending and no uplift is appropriate.  Equally there can be no discount for good character.

[30]     I do not ignore, however, the testimonials that have been filed on your behalf by clearly loving and supportive family members and friends.   You clearly have many good qualities and the ability to lead a normal life in our community.   But against that, given that you have offended against four victims over this period of time, and given your previous serious brushes with the law it is unsurprising that the probation officer in the pre-sentence report has assessed your risk of re-offending as high.  You deny any wrongdoing, and that is your right and I do not penalise you for that, but there is no discount for remorse.

[31]     In the end your personal qualities, and what I see from the material I have been given, your excellent performance in prison, will be undoubtedly at a certain time considered by the Parole Board.  However, there is no basis for any discount on these grounds at this sentence hearing, and to be fair Mr Tuck did not press for that.

[32]     What Mr Tuck did press for is a discount for your youth.   I accept that is appropriate.  The Crown has pointed out that any discount should be tempered by the fact that you have offended over a considerable period of time and have a past

record,  so  that  you  are  showing some  aspects  of being a defiant  and  hardened offender.

[33]     That is a fair submission, but I have decided in the end to be generous to you and give you a considerable discount for your youth of 15 per cent.  The arithmetic reveals that this would give you an end sentence of just over 13 and a half years’ imprisonment.    I  will  round  that  down  to  13  and  a  half  years’ imprisonment. Therefore, your end sentence is 13 and a half years’ imprisonment.

[34]     I now turn to the minimum term of imprisonment.  The Crown seeks such a minimum term and Mr Tuck does not resist it.   He is correct not to do so as a minimum term is inevitable in this case. The scale of your offending is such that you can only be seen at the moment, at this point in  your life, as a danger to our community.   Moreover, the scale of your offending warrants a minimum term to deter you and others from this sort of offending.  The damage done to three of your four victims has been very considerable indeed, and they will carry it for the rest of their lives.   I do not, however, propose imposing the maximum minimum term. There is a need to avoid a sentence which is too crushing.  The minimum term will be 50 per cent, being six years and nine months’ imprisonment.

[35]     Stand  up  please  Mr  Marsh.    Mr  Marsh,  I  sentence  you  to  a  term  of imprisonment of 13 and a half years together with a minimum term of six years and nine months’ imprisonment. The individual sentences are as follows:

Victim	Charge:	Sentence:
Victim 4	Sexual violation by unlawful sexual connection (x 2)	12 years’ imprisonment (concurrent 12 years’ imprisonment for second charge)
Kidnapping	One and a half years’ imprisonment (cumulative on the first charge)
Attempted aggravated injury	Three years’ imprisonment (concurrent)
Threatening to kill	Three years’ imprisonment (concurrent)

Victim 1	Sexual violation by unlawful sexual connection	Six years’ imprisonment (concurrent)
Sexual violation by rape	Eight and a half years’ imprisonment (concurrent)
Threatening to kill	Three years’ imprisonment (concurrent)
Victim 2	Indecent assault	One year imprisonment (concurrent)
Victim 3	Sexual contact with a young person	One and a half years’ imprisonment (concurrent)

[36]     You may stand down.

……………………………..

Asher J