R v Marshall

[2024] NZHC 3462

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-092-004672

[2024] NZHC 3462

THE KING

v

KEVIN NICHOLAS MARSHALL

Hearing:

19 November 2024

Appearances:

S Bicknell for Crown

M B Mortimer for Defendant

Sentence:

19 November 2024

SENTENCING REMARKS OF LANG J

Solicitors/counsel:

Crown Solicitor, Manukau M B Mortimer, Auckland

R v MARSHALL [2024] NZHC 3462 [19 November 2024]

[1]                  Mr Marshall, you appear for sentence having pleaded guilty to charges of attempted murder,1 being in possession of an offensive weapon2 and assaulting a female.3 The maximum penalty on the charge of attempted murder is 14 years imprisonment whilst the maximum sentences on the other two charges are three and two years imprisonment respectively.

Factual background

[2]                  The charges were laid as a result of two separate incidents, the first of which occurred on 26 September 2022. This resulted in the charges of being in possession of an offensive weapon and assaulting a female. The second incident occurred on 27 March 2024, and resulted in the charge of attempted murder. In both incidents the victim of the offending was your former partner, with whom you had been in a relationship for approximately nine months. You had separated in or about June 2022.

The incident on 26 September 2022

[3]                  In September 2022, your former partner was living in South Auckland but she rented a property in another town that she used to store some of her belongings. On the afternoon of 26 September 2022, she went to this property to collect some items from it. She was accompanied to the address by her 10-year-old son.

[4]                  You arrived at the address whilst your former partner was there and entered the house. You began throwing her belongings outside the address and telling her she needed to leave. She refused to leave and continued to collect her belongings as she was entitled to do. You then grabbed a machete, held it up in the air and told her you were going to cut her throat with it. You also said you would cut anyone else that tried to stop you. This incident led to the charge of being in possession of an offensive weapon.

[5]                  Your former partner and her son then went outside the address, and you put the machete back in your vehicle. She then went to re-enter the house and, as she did so,

1      Crimes Act 1961, s 173 — maximum penalty of 14 years imprisonment.

2      Section 202A(4)(b) — maximum penalty of three years imprisonment.

3      Section 194(b) — maximum penalty of two years imprisonment.

you punched her once in the eye with a closed fist. This led to the charge of assaulting a female.

[6]                  Your partner’s son then ran to a neighbour’s address and called the police. When the police arrived, they found a machete under the driver’s seat in your vehicle. When the police spoke to you, you denied hitting your former partner and said you had “just flipped”.

[7]The punch to your former partner’s face left her with soreness to the facial area.

The incident that occurred on 27 March 2024

[8]                  You were initially remanded in custody on the charges laid following the incident on 26 September 2022. On 18 January 2023, you obtained a grant of electronically monitored (EM) bail that required you to reside at a nominated address. Your EM bail conditions also prohibited you having any association with your former partner.

[9]                  In December 2023, you removed your electronic bracelet and absconded from your EM bail address. You were then at large for the next four months. At this stage, your trial in relation to the earlier charges was scheduled to commence on 25 March 2024.

[10]              Whilst you were at large, it appears that you went to your former partner’s address and, with her consent, stayed there for a period of months. She said that you had an argument after returning from Court on 25 March 2024 when the case against you had not been reached and was put off until the following day. She said that, as a result of this argument, she asked you to leave the address and you then went to live elsewhere.

[11]              I conducted a disputed facts hearing before sentencing today in order to determine whether I accepted the version of events given by your former partner or whether I found it reasonably possible that your version of events may be correct. This was to the effect that you were still living at the address between 25 and 27 March 2024.

[12]              For reasons that I will give separately, I found that your explanation was reasonably possible. I am therefore satisfied that you were lawfully at the address between 25 and 27 March 2024.

[13]              At about midday on 27 March 2024, you went into the living room of the address where your former partner was lying asleep on a sofa. She awoke to find you standing over her. You then became involved in an argument about the evidence she was to give at the jury trial in July 2024. You told your former partner you wanted her to retract her allegations because you did not want to go to prison. She refused to do so.

[14]              The summary of facts on which you are to be sentenced records that you then pulled your former partner off the couch and onto the floor. You armed yourself with a large hunting knife that you found on top of the fridge at the address. You then began stabbing your former partner to the head and neck in a frenzied fashion. She crawled into a foetal position to try to protect herself. The attack continued for some time, with you telling your former partner that you would stop her going to court by cutting her head off.

[15]              Fearing she was going to die, your former partner fought back, managed to escape and raised the alarm. You endeavoured to chase her but slipped in the blood that was lying on the floor. You had fled the scene by the time the police arrived.

[16]              The ferocity of your attack is demonstrated by the fact that the police found clumps of hair both inside and outside the house. You had torn these from your former partner’s head during your attack.

[17]              Not surprisingly, your former partner was seriously injured as a result of your attack and required immediate and subsequent surgeries that required her to remain in hospital for some days. The injuries included several serious wounds to the head, neck and nose that required stapling to repair. She also had a substantial wound to the top of her left hand that severed a tendon and required stitching to repair. She also had cuts, scratches and bruises to several parts of her body. She also had a lengthy abrasion above the right eye and a graze to the right cheek.

[18]              You heard this morning your former partner read a measured and thoughtful victim impact statement to the Court. In her statement, she described the effect that your offending has had on her. It involved not only the trauma of the attack itself but the subsequent hospitalisation and rehabilitation from her wounds. These are going to take many months, if not years, to fully heal, if indeed they ever do. It is beyond question, however, that the psychological damage that you inflicted on your former partner is likely to be the most serious and long-lasting aspect of her injuries. She is in all likelihood going to be affected in one way or another for the rest of her life by the physical, emotional and psychological injuries that you inflicted on her.

[19]              You remained on the run until 11 April 2024 when you were ultimately arrested and then remained in custody.

Approach

[20]              I propose to adopt the sentencing approach suggested by both counsel. This involves selecting a starting point for the most serious charge, which is obviously that of attempted murder. I will then add an uplift to reflect the remaining charges, as well as aggravating factors personal to you. I will then apply discounts for any mitigating factors personal to you to arrive at an end sentence. The final step in the process is to determine whether it is necessary to impose a minimum term of imprisonment.

Starting point: attempted murder

[21]              There is no guideline judgment of the Court of Appeal to assist in the selection of the starting point for the crime of attempted murder. This is because that crime can be committed in so many different ways. A common approach is to identify the aggravating features of the offending and then have regard to the starting points suggested by the Court of Appeal in R v Taueki for the crime of causing grievous bodily harm with intent to do so.4 The starting point on a charge of attempted murder is usually slightly higher than that for a charge involving the intentional infliction of grievous bodily harm. This reflects the fact that a charge of attempted murder requires an intention to kill rather than to cause grievous bodily harm.

4      R v Taueki [2005] 3 NZLR 372 (CA).

[22]              As both counsel agree, your offending involves several aggravating factors. The first is that it occurred in your former partner’s home, where she was entitled to feel safe. Your former partner was also vulnerable because she was asleep and therefore unable to get away from you when you entered the room and woke her up. In addition, you used a lethal weapon in the form of a hunting knife to cause extremely serious injury. These included the serious wounds to the head and neck, which are amongst the most vulnerable portions of the human body. As I have already noted, the offending also resulted in significant ongoing harm for the victim.

[23]              Finally, the offending occurred in the context of you endeavouring to persuade your former partner to recant her allegations so that you would be acquitted on the charges relating to the earlier offending involving violence against her. It was in essence an attempt to pervert the course of justice and you could easily have been charged with that offence as well. This is a significant aggravating factor that is not present in the cases counsel have cited to me.

[24]              In Taueki, the Court of Appeal identified starting points for bands of offending depending on the number of aggravating features involved. The Court indicated that a starting point of five to 10 years imprisonment was appropriate for offending in band 2, which involves two or three aggravating factors. A starting point of nine to 14 years imprisonment will be appropriate in band 3, which applies where three or more aggravating factors are present in particularly grave combination.

[25]              The Crown suggests that, when the aggravating features of your offending are taken into account, a starting point of 11 years imprisonment is appropriate on the charge of attempted murder. It has cited several cases in support of this submission.5 Your counsel has also cited several cases that she says support her submission that a starting point of no more than 10 years of imprisonment is justified.6

5      R v JRF HC Dunedin CRI-2011-012-2837, 30 September 2011; R v Nuku [2021] NZHC 410; R v Nelson HC Rotorua CRI-2004-077-15577, 16 August 2005; Clark v R [2020] NZCA 641; Andrew v Police [2015] NZHC 2987.

6      R v JRF HC Dunedin CRI-2011-012-2837, 30 September 2011; R v Ae [2016] NZHC 965; R v Jury [2014] NZHC 687 at [31]; R v Kamal [2014] NZHC 698; R v Nelson HC Rotorua CRI-2004- 077-15577, 16 August 2005.

[26]              As always, there are differences between the facts of the present case and those in the cases both counsel have cited. However, the cases are helpful to the extent that they demonstrate that offending of this type is generally likely to attract a starting point of between nine and 12 years imprisonment.

[27]              I consider the starting point suggested by your counsel to be too low. Your motivation for committing the offence, namely to have your former partner recant her allegations, elevates its seriousness above the lower end of the suggested range for starting points in band 3. I also need to take into account the fact that you have pleaded guilty to a charge of attempted murder rather than intentionally causing grievous bodily harm. I therefore agree with the Crown that a starting point of 11 years imprisonment is appropriate on the charge of attempted murder.

Uplift for earlier offending

[28]              An uplift needs to be applied to reflect the charges relating to the offending that occurred on 26 September 2022. That offending also involved you being in possession of a lethal weapon, this time in the form of a machete. You used this weapon to threaten your former partner in the presence of her young son. You also inflicted actual violence on her in the form of the punch to the eye with a closed fist. Standing alone, I consider it would warrant a starting point of around 18 months imprisonment. Having regard to totality principles, I consider an uplift of six months as suggested by your counsel to be appropriate to reflect the remaining charges. This produces a sentence of 11 and a half years imprisonment before taking into account aggravating and mitigating factors personal to you.

Aggravating factors

[29]              I consider your sentence needs to be increased to reflect two aggravating factors. The first of these relates to your criminal history. On 21 September 2016, you were sentenced to three years imprisonment on charges of wounding with intent to injure and assault with intent to injure, both of which involved offending against your then partner. This offending occurred on 2 May 2015 and 30 January 2016. The summary of facts for these offences records that both incidents involved sustained assaults on your then partner although no weapon was used in this offending. You also

have a conviction for threatening conduct towards yet another partner in 2019. The present offending is made more serious by the fact that previous sentences imposed for similar offending have failed to have the desired effect. Rather, the seriousness of your offending in a relationship context has increased markedly. I add an uplift of four months to reflect this factor.

[30]              In addition, the present offending occurred whilst you were on EM bail awaiting trial on the earlier charges involving allegations of violence against the same victim. The fact that you breached your bail conditions by removing your electronic bracelet and then committing the offence of attempted murder whilst at large is an obvious aggravating factor, as is the fact that you thereby breached the bail condition prohibiting you from having contact with your former partner. This condition was no doubt imposed to keep her safe from further offending by you. I add a further uplift of four months to reflect these factors. This results in a sentence of 12 years two months imprisonment before taking into account mitigating factors personal to you.

Mitigating factors

[31]              I am obviously required to give you credit for your guilty pleas. The Crown accepts that you should receive a discount of 25 per cent to reflect your guilty plea on the charge of attempted murder because you entered it at an early stage. This results in a reduction of two years nine months.

[32]              Your guilty pleas in relation to the other two charges came at a much later stage because you initially denied them and were awaiting trial at the time of the offending in March 2024. I apply a further discount of one month to reflect your guilty pleas on those charges. This means you are entitled to a total discount of two years ten months for your guilty pleas. This reduces the end sentence to one of nine years four months imprisonment.

[33]              Your counsel suggests you should also receive a credit of five per cent for remorse, including your offer to attend a restorative justice conference with your former partner. Not surprisingly, she declined to engage in this process. However, I consider you are now at a stage where expressions of remorse or contrition for offending of this type can be given little weight because of your previous convictions

for similar offending. Importantly, the psychologist’s report that your counsel has provided notes that, although you may describe feelings of guilt for past transgressions, you are likely to feel little remorse of any lasting nature. It also says you have a limited capacity for empathy. In addition, the pre-sentence report suggests you have tried to minimise your culpability for the offending on 26 September 2022. You told the writer of the report that you were trying to defend yourself on that occasion against an attack by your former partner. That is obviously at odds with the information contained in the summary of facts. I decline to provide you with a discount to reflect remorse.

[34]              The psychologist notes, however, that you have a “substantial interest” in making changes in your life and appear to be motivated for treatment. However, it goes on to say that despite this favourable sign the combination of issues you have reported suggest that treatment is likely to be quite challenging and arduous, with many reversals. I am nevertheless prepared to provide you with a discount of four months to acknowledge your current motivation to engage in rehabilitative efforts.

[35]              Your counsel also asks me to provide an additional discount to reflect the mental health issues identified in the psychologist’s report. The psychologist’s report is based largely on matters you have reported. You have had no previous engagement with mental health services, and the only indication that you have suffered in the past from mental health issues arises out of the fact that you were prescribed quetiapine whilst on remand in 2023. This is a drug prescribed to address psychotic issues.

[36]              The report does not reveal any underlying mental disorder on your part. It does describe numerous forms of personality disorder from which you appear to suffer. This has resulted in a wide variety of symptoms, including depression and feelings of lack of self-worth. The psychologist says you appear uncertain about major life issues and have little sense of direction or purpose in your life as it currently stands. This uncertainty likely extends to the arena of inter-personal relationships, as you may have a very unstable sense of what you desire from these interactions. As a result, the psychologist says it is likely that you have a history of involvement in intense and short-lived relationships and you tend to be preoccupied with consistent fears of being abandoned or rejected by those around you.

[37]              The report goes on to state that, with respect to anger management, you describe yourself as potentially prone to more extreme displays of anger including damage to property and threats to assault others. These outbursts may be unexpected and take others by surprise. The psychologist says it is likely that those around you may be intimidated by your temper and by your potential for violence. The psychologist also says that your risk for aggressive behaviour is further exacerbated by the presence of a number of features including psychotic symptoms, a limited capacity for empathy and a sense of persecution.

[38]              I find it difficult to discern any nexus between the present offending and any personality or other disorders from which you may suffer. The present offending, as far as the summary of facts is concerned, was motivated solely by the fact that you were angered by the fact that your former partner refused to recant her allegations. You say that you heard voices before you entered the room, but I do not consider this is likely to have played any part in the serious assaults that followed. These followed the argument with your former partner about the fact that she was to give evidence against you. Nor do I consider that any mental health issues identified in the report are likely to make it more difficult for you to serve the sentence of imprisonment will inevitably be imposed in this case.

[39]              For these reasons, I do not propose to provide you with any discount in relation to the matters identified in the psychologist’s report.

[40]              It follows that the only mitigating factors for which I am prepared to provide you credit are your guilty pleas and the fact that you have expressed willingness to undertake rehabilitative efforts. Those factors have reduced the sentence to one of nine years imprisonment.

Minimum term of imprisonment

[41]              In any case where the Court sentences an offender to two or more years imprisonment, it may make an order requiring the offender to serve a minimum term of imprisonment before being eligible to apply for parole.7 It may make such an order

7      Sentencing Act 2002, s 86(1).

where the standard parole provisions would not be sufficient to recognise the sentencing purposes of deterrence, the need to hold the offender accountable, the need to denounce the offending and the need to protect the community.8

[42]              The standard parole provisions require an offender to serve one-third of the sentence before being eligible to apply for parole. In the ordinary course of events, you would therefore be eligible to apply for parole after serving just three years of your sentence. Several factors persuade me this would be manifestly inadequate to recognise the sentencing purposes to which I have referred. The first is your history of offending involving violence against partners with whom you are in a relationship and the apparently escalating nature of that type of offending. This has resulted in very serious injury to the victim of your present offending. The second is that the present offending has occurred notwithstanding that you undertook therapy to guard against future offending of this type whilst you were last in prison for similar offending. This no doubt prompts the writer of the psychological report to conclude that you remain at high risk of committing similar offences in the future.

[43]              In addition, you committed the offence of attempted murder after you had absconded from EM bail whilst you were awaiting trial on charges of a similar nature. Finally, there is the fact that you committed that offence in an effort to dissuade your former partner from giving evidence against you. These factors persuade me that all the purposes giving rise to jurisdiction to make an order to serve a minimum period of imprisonment are engaged.

[44]              On your behalf, Ms Mortimer submits that I should step back from making such an order. She says it is unlikely that you will be able to gain access to meaningful rehabilitative programmes in prison until such time as you are eligible for parole. If you are required to serve 50 per cent of your sentence before being eligible for parole, as the Crown suggests you should, Ms Mortimer contends that there may not be sufficient time remaining in your sentence to undergo meaningful therapeutic work.

[45]              I acknowledge these concerns. However, I consider the time left remaining in your sentence if you are required to serve a minimum term of imprisonment will still

8      Section 86(2).

be sufficient to ensure you are able to undertake meaningful rehabilitative efforts. It may mean, however, that you are required to serve virtually the whole of the sentence before you are released on parole.

[46]              Given the circumstances I have identified, I am satisfied that it is appropriate to make an order requiring you to serve a minimum term of imprisonment as the Crown suggests.

Sentence

[47]              On the charge of attempted murder you are sentenced to nine years imprisonment. You are ordered to serve a minimum term of four years six months on that charge before being eligible to apply for parole.

[48]              On each of the other charges, you are sentenced to two months imprisonment. You are to serve those sentences concurrently with the sentences imposed on the charge of attempted murder.

[49]Stand down.

Lang J