R v Marshall - [2020] NZHC 1271

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF CONNECTED
PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2018-054-001353

[2020] NZHC 1271

THE QUEEN

v

CAREY JOHN MARSHALL

Hearing: 8 June 2020

Counsel:

D Davies for the Crown

S Hewson for Mr Marshall

Judgment:

8 June 2020

SENTENCING NOTES OF DOOGUE J

[1] Carey John Marshall, you appear for sentence having pleaded guilty to four charges: sexual violation by unlawful sexual connection,1 sexual conduct with a child under the age of 12,2 knowingly making objectionable publications (all in

1 Crimes Act 1961, ss 128(1)(b) and 128B; maximum penalty of 20 years’ imprisonment.
2 Crimes Act, s 132(3); maximum penalty of 10 years’ imprisonment.

R v MARSHALL [2020] NZHC 1271 [8 June 2020]

relation to a girl between the age of four and seven),3 and bestiality (in relation to an adult woman).4 These are representative charges.

Background

[2] The first victim in this matter was a child. You abused her between the ages of four and seven. You were in a relationship with her mother, which allowed you access to her.

[3] You had a female co-offender in the sexual offending. In the normal sense of it, she is in my view also a victim of your bestiality offending. She was a friend of the child’s mother. Your co-offender lived in a sleepout at the two addresses that the victim and her mother resided in over the relevant period. Your co-offender and you would babysit the victim whilst her mother worked.

[4] When the victim was four years old, you started grooming her by touching and rubbing her. On a number of occasions, you rubbed her genitalia and her bottom. On the first occasion you offended against the victim with your co-offender, you asked your co-offender if she would like to “taste” the victim. You both went into the victim’s bedroom. Your co-offender placed her mouth onto the victim’s genitalia. This lasted about 10 minutes before you told the co-offender to get dressed and go to her room, as the victim’s mother would be home imminently.

[5] Throughout the duration of this offending you continued to touch the victim. You rubbed her genitalia. This would often happen when the victim’s mother was out of the house. Sometimes you would do this when the victim’s mother was in fact at home, but busy performing household tasks.

[6] On some occasions you would have sexual intercourse with the victim’s mother, leave the room, and then touch the victim’s genitalia. At other times the victim

3 Films, Videos, and Publications Classification Act 1993, ss 123(1) and 124(1); maximum penalty of 10 years’ imprisonment. The charging document records the maximum penalty as 10…

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 R v Marshall

Details

AGLC: R v Marshall [2020] NZHC 1271
Case: [2020] NZHC 1271
Decision Date: 8 June 2020

CaseChat Overview and Summary

The defendant, Carey John Marshall, was sentenced in the High Court of New Zealand after pleading guilty to multiple charges including sexual violation by unlawful sexual connection, sexual conduct with a child under the age of 12, making objectionable publications, and bestiality. The victim was a young girl between the ages of four and seven who was abused by the defendant over a period of time. The court considered the aggravating features of the offending, including the vulnerability of the victim, the breach of trust, the involvement of a co-offender, and the scale and frequency of the offending. The court also took into account the effect on the victim, who suffered physical and psychological harm. The defendant's personal circumstances, including his previous criminal history and his guilty pleas, were also considered. The court determined that the defendant's offending warranted a finite sentence, and set a starting point of 20 years and six months' imprisonment, with a discount of approximately 20 per cent for the defendant's guilty pleas. The court imposed a minimum non-parole period of 10 years, and ordered the defendant to be registered on the Child Sex Offender Register. The court also imposed suppression orders to protect the identity of the victim and the co-offender.

The court considered whether to impose a sentence of preventive detention instead of a finite sentence. The court found that the defendant was likely to commit another qualifying sexual or violent offence upon release after serving any sentence the court might impose. The court took into account the factors set out in s 87(4) of the Sentencing Act, including any pattern of serious offending disclosed by the offender’s history, the seriousness of the harm to the community caused by the offending, information indicating a tendency to commit serious offences in the future, the absence or failure of efforts by the offender to address the cause or causes of the offending, and the principle that a lengthy determinative sentence is preferable if this provides adequate protection for society. The court decided to impose a finite sentence, and gave the defendant the opportunity to address the underlying causes of his offending through therapeutic intervention in prison. The court also noted that an extended supervision order was likely on the defendant's release.

Orders