R v Mist - [2007] NZCA 352

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA480/03 [2007] NZCA 352

THE QUEEN

v

BASIL STEVEN MARSHALL MIST

Hearing: 3 May 2007
Court: Glazebrook, Chambers and Robertson JJ Counsel: B J Horsley and K E Salmond for Crown
R M Lithgow QC and N Levy for Respondent

Judgment: 16 August 2007 at 9.30 am

JUDGMENT OF THE COURT

A The Solicitor-General’s application for leave to appeal is granted. B The appeal is allowed.
C The sentence on count 2 (sexual violation by rape) is quashed.

DIn substitution therefor, the appellant is sentenced on that count to a term of ten years’ imprisonment, cumulative on the appellant’s existing sentence of ten years’ imprisonment for manslaughter. The appellant must serve on the sentence now imposed a minimum period of
imprisonment of four years. The total effective sentence now is,

R V MIST CA CA480/03 16 August 2007

therefore, 20 years’ imprisonment, of which the appellant must serve a minimum period of imprisonment of ten years (six years imposed on the manslaughter charge plus four years now imposed on the sexual violation by rape charge).

REASONS OF THE COURT

(Given by Chambers J)

Five victims of sexual offending

[1] Between the ages of 17 and 20, Basil Mist, the respondent, engaged in the most appalling criminal conduct. He sexually violated no fewer than five girls, aged between 7 and 15. The circumstances of some of the violations were horrific. The crime spree came to an end only after he killed his 17 year-old partner. He was then arrested and charged with murder. He was perhaps lucky to have been found guilty only of manslaughter, as well as a representative charge of male assaults female. He pleaded guilty to a third representative charge of male assaults female. All of those charges related to Mr Mist’s partner. Ellen France J sentenced Mr Mist to ten years’ imprisonment for the manslaughter, and ordered he serve a minimum period of imprisonment (an MPI) of six years: HC PMN T26/02 28 April 2003. Although the sexual offending took place before the manslaughter, the trial and sentencing in respect of the sexual offending took place after the trial and sentencing relating to the manslaughter.

[2] Neazor J was the trial judge for the sexual offending. Following the trial, His Honour sentenced Mr Mist to 16 years’ imprisonment with respect to the total sexual offending, but ordered that that term was to be served concurrently with the ten years’ imprisonment imposed with respect to the manslaughter: HC PMN T2/054/838731 21 November 2003. He further ordered Mr Mist to serve an MPI of
10 years.

[3] The Solicitor-General sought leave to appeal. He submitted the sentence of

16 years’ imprisonment was manifestly inadequate and wrong in principle. The Solicitor-General’s primary submission was that Neazor J had been in error in finding there was no jurisdiction to impose a sentence of preventive detention on Mr…

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 Mist

Details

AGLC: R v Mist [2007] NZCA 352
Case: [2007] NZCA 352
Decision Date: 16 August 2007

CaseChat Overview and Summary

Basil Steven Marshall Mist appealed against his sentence for a series of serious sexual offences, including the rape of a 12-year-old girl and the digital violation of a 7-year-old. The trial judge had sentenced him to 16 years' imprisonment, to run concurrently with his 10-year sentence for manslaughter. The Solicitor-General appealed, arguing that the sentence was manifestly inadequate. The Court of Appeal granted the appeal, holding that the sentence was manifestly inadequate and ordering a term of 10 years' imprisonment, cumulative on the manslaughter charge. The Court of Appeal reasoned that the starting point for the sexual offending was 16 years' imprisonment. The manslaughter sentence needed to be adjusted, resulting in a total of 23 years' imprisonment. The Court of Appeal made further adjustments for youth and the nature of the appeal, resulting in a total sentence of 20 years' imprisonment. The Court of Appeal also ordered an MPI of 10 years.

The Court of Appeal concluded that the sentence imposed by the trial judge was inadequate and that the starting point for the sexual offending was 16 years' imprisonment. The Court of Appeal adjusted the manslaughter sentence and made further adjustments for youth and the nature of the appeal, resulting in a total sentence of 20 years' imprisonment. The Court of Appeal also ordered an MPI of 10 years. The Court of Appeal quashed the sentence on count 2 and imposed a term of 10 years' imprisonment, cumulative on the manslaughter charge.

Orders