R v Marsters HC Rotorua Cri-2008-063-5327

[2010] NZHC 1968

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY

CRI-2008-063-005327

THE QUEEN

v

RICHARD MARSTERS

Counsel:C Macklin for Crown

P Kaye for Prisoner

Sentence:22 October 2010 (at Hamilton)

SENTENCING NOTES OF CLIFFORD J

Introduction

[1]        Mr Marsters, you appear for sentencing having been found guilty, after a jury trial before me here in the High Court at Hamilton, on one count of attempted murder and one count of assault with a pistol.  Those crimes attract maximum sentences of 14 years’ and five years’ imprisonment respectively.

Factual basis of sentencing

[2]        Based on the verdicts reached by the jury, the evidence upon which those verdicts were reached, and my assessment of those matters, the facts with reference to which I am to sentence you for your offending are as follows.

[3]        On the evening of 30 November 2008, at approximately 9.00pm, you were driving a white Mitsubishi Legnum stationwagon in Rotorua.  You were stopped on Te Ngae Road, at the intersection with Fenton Street.  When the lights went green, you moved slowly away and, as you did so, the vehicle behind you flashed its lights or honked its horn at you.  That vehicle subsequently turned off, and its occupants, Mr Robert Mansell and his nephew Murray Raimona, 18 years old, got out a little distance away at a local gym they were renovating at the time. 

[4]        A short time later, you pulled over at the side of the road by that gym, in my view having followed Mr Mansell’s car because you were annoyed at Mr Mansell for flashing his lights or honking his horn at you.

[5]        You got out of your car, approached Mr Mansell and in effect asked him what did he think he had been doing.  Mr Mansell approached you, words were exchanged and you then hit him with the gun you held in your hand in the pocket of your oilskin vest.  Mr Mansell went to retaliate, and you took the gun from your pocket, pointed it at his head and began threatening him.  Mr Mansell moved backwards and you followed him, striking him in the chest with the gun, threatening to shoot him.  Mr Mansell wrestled with you, whilst also holding onto the pistol.  Mr Mansell’s nephew joined in, and at one point they had you wrestled back to the side of the street, up against or over the bonnet of your car.  At that point it would appear that you managed to free your hand with the gun in it, and fired one shot that struck Mr Mansell.  Mr Mansell moved away, and you fired and hit Mr Mansell a second time.  Mr Mansell was very lucky, as neither shot caused substantial injury:  the shot in the face would appear to have caught him on the right side of his nose, and then deflected around his jaw and exited by his ear.  The shot in the arm went through the flesh and did not lodge in the body.

[6]        Nevertheless, and not surprisingly, Mr Mansell was stunned, concussed and staggered to the ground.  At that point, you followed him, hitting him about the head several times with your gun.  Mr Mansell received grazes, cuts and bruises to his head, face and upper body, but apart from swelling, pain and some scarring, he avoided serious ongoing injury.  

[7]        Throughout this incident you verbally threatened him, saying that if he tried to resist you, you would “waste him”.  Later, you pointed the gun at him and said “do you want some more”. 

[8]        Mr Mansell’s nephew gave evidence of the occupant of the car calling out to you at some point, after which you got back in the car and left.

[9]        Mr Mansell’s nephew recorded the number plate of that car. 

[10]      On the basis of Mr Mansell’s and his nephew’s evidence, and the forensic evidence which I need not refer to here, the jury did not accept your alibi defence and found you guilty of the charges of attempted murder and assault with a weapon.  The essence of the Crown’s case was that, however the incident may have started and however the first shot was fired, the clear inference to be drawn from your firing the second shot was one of an intention to kill.  The evidence pointed to the gun having been aimed at Mr Mansell’s upper body and deliberately discharged.  By their verdict, the jury clearly accepted that contention.

Sentencing process

[11]      In imposing sentence I am required to identify what is called the starting point.  That is the sentence that takes account of the nature of your offending itself, what you did.  I then consider aggravating and mitigating factors personal to you. 

[12]      In sentencing you I am guided by the principles of the Sentencing Act 2002.  In my view, these importantly include holding you accountable for, and denouncing, your offending, deterrence of you and others, and addressing the obvious harm your offending caused your victim. 

[13]      I have a March 2010 pre-sentence report.  You declined to co-operate with the Probation Service in preparing any further report.  You have also, nevertheless, agreed, through your counsel, that we continue with the sentencing exercise today.  If there had been any matters favourable to you that a probation report might have drawn to my attention, you are responsible for those not being before me, and I intend to sentence you on the basis of the materials that I have. 

The recent pre-sentence report

[14]      That March 2010 pre-sentence report records that you are a 51 year old male of Maori, Cook Island Maori and European descent.  Before being committed to prison, you resided with your wife in Rotorua, and with two of your grandchildren.  You have a limited employment history, and a relatively long history of criminal offending.  I accept however that much of that now is of some age.  As you did not participate in the interview for the pre-sentence report, there is no information before me as to your view of this offending.  Specifically, there is nothing to indicate that you show any remorse, or that you recognise the damage you inflicted on Mr Mansell.  It is to that damage that I now turn.

The victim impact statements

[15]      Mr Mansell’s victim impact statement records the effect of this incident on both him and his family.  Importantly, whilst he may not have suffered greatly physically, he clearly suffered in other ways.  At the time of the offending, his partner had just given birth to a baby girl.  There were therefore at a difficult stage of their life together.  Your offending caused considerable stress to them both.  They felt vulnerable, they lost their sense of safety in public.  Mr Mansell’s partner developed Post Traumatic Stress Disorder.  His step-daughter required counselling to deal with the stresses caused by your offending. 

[16]      By Mr Mansell’s assessment those stresses caused him and his partner to separate, depriving their young daughter of living with both of her parents. 

[17]      Your offending also had a negative impact on Mr Mansell’s own mental wellbeing.  He lost a lot of motivation, which had a very significant adverse impact on his business.

Crown submissions

[18]      In terms of the submissions you have heard this morning, I do not intend to repeat them at great length.  The Crown, in its written submissions, points to what it describes as the aggravating features of this attempted murder offending.  These are obviously the use of a firearm, moreover the high level of sustained violence, particularly evidenced by the beating with the pistol to the head of Mr Mansell after he had collapsed from being shot, the significant impact on Mr Mansell and the disturbing feature of your carrying a firearm with you and being prepared to use it in public.  There was also significant danger to the public.  You fired a gun on a public street.

[19]      There are no mitigating features in relation to the offending from the Crown’s point of view, and the Crown as you have heard submitted a starting point of between 10 and 12 years’ imprisonment.  They look for an uplift based on your previous offending of six months to a year.  That would give an end sentence range of 10½ to 13 years.  It is agreed that the sentence should be imposed cumulatively on the existing sentence you are serving.  The Crown submits that no adjustment is required overall once that is done. 

[20]      Finally, as you have heard, the Crown asks the Court to impose a minimum non-parole period, particularly by reference to the need to protect the public.

Defence submissions

[21]      In terms of those submissions, Mr Kaye acknowledges, based on relevant authority, the starting point range of around 10 years.  He submits that any uplift for previous offending should be in months rather than years, and in that he points to the time when that offending occurred and the nature of it.  He accepts that cumulative sentences are appropriate, but considers that an unadjusted end sentence of 14-17½ years, as the Crown submits, would be manifestly excessive and he has submitted that a reduction, so as to provide an end sentence of something in the vicinity of 10 years, is appropriate.

Discussion

[22]      My assessment is as follows. 

[23]      I accept the Crown’s analysis of the aggravating features of your offending.  Obviously these are the use of a weapon, the shooting, this high level of sustained violence, the impact on your victim as we have heard, and the fact that you were carrying the gun with you and prepared to use it in public in response to Mr Mansell’s actions which in no way were proportionate to your response at all.

[24]      I also accept that it is an aggravating feature that you fired the gun in a public place, albeit that it was late at night. 

[25]      Although Mr Mansell did respond to your violence, that in no way mitigates or excuses it.  As Mr Kaye himself acknowledged when presenting your alibi defence to the jury, your conduct on the evening in question constituted outright thuggery.  It was an extreme and unacceptable form of road rage. 

[26]      In terms of the starting point, by my assessment a starting point of 11 years is the appropriate one.  I do not think, by a narrow margin, that this attempted murder offending that falls into the most serious category.  By my reading of the cases, that category would appear to involve greater degrees of premeditation, and has often involved attacks on Police Officers, or more than one victim. 

[27]      This was, however, very serious offending of its kind, and as I have said, I think the starting point is 11 years.

[28]      In terms of your previous, lengthy, history, I accept Mr Kaye’s submissions largely.  I think the necessary uplift for that, to acknowledge that, is six months.  That results in a sentence of 11½ years, before considering mitigating factors personal to you. 

[29]      The Crown said there were not any.  Mr Kaye pointed to your health, and to your age.  I do not think your age is a mitigating factor.  I accept that your health is something I need to consider.  I have done so, but in the absence of any real evidence before me that points to any significant ongoing implications for you of that, other than the need to take medication, I do not consider that to be a mitigating factor.

[30]      Therefore the cumulative sentence I would impose, before considering issues of totality, is 11½ years.  I now turn to those issues.

[31]      You are currently serving a term of imprisonment of four years in respect of cannabis and methamphetamine offending.  Were a sentence of 11½ years to be added to that, the entire term you would face would be 15½ years.  I think that term would infringe against the totality principle.  On my assessment, a reduction in your sentence of two years to nine and a half years so that the total term you will face will be 13½ years, is the appropriate outcome.

[32]      The Crown has asked that a minimum non-parole period be imposed, and has suggested a period in the range of 50%.  In doing so, it points to the need to protect the public in particular.  Mr Kaye submitted that such an imposition was not required, and that, in any event, you would be unlikely to be granted parole for some time.

[33]      Be that as it may, the Court does have a responsibility now, under the Sentencing Act, to consider at the point of sentencing whether or not a minimum period should be imposed.  I accept the Crown’s submission that a minimum period is called for to protect the safety of the public.  This was dangerous and violent offending in a public place.  It was a response to a very small incident of what might be called annoyance.  It is clear, in my view, the public do need protecting.  I impose a minimum non-parole period of six years.

[34]      You are therefore sentenced to nine and a half years imprisonment on the charge of attempted murder, that sentence to be served cumulatively on the current sentence you are serving.  You are sentenced to three years imprisonment on the charge of assault with a weapon, that sentence to be served concurrently with your sentence for attempted murder.  I impose a minimum non-parole period of six years.

[35]      Thank you Mr Marsters, you can stand down.

“Clifford J”

Solicitors:

Crown Solicitor, Rotorua