R v Mist
[2007] NZCA 352
•16 August 2007
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 Mist and in not imposing such a sentence. Alternatively, the Solicitor-General argued that a concurrent 16 year term of imprisonment was manifestly inadequate.
[4] This court heard that appeal in 2004. This court held that Neazor J had been wrong in determining he lacked jurisdiction to impose a sentence of preventive detention. (The jurisdictional question hinged on Mr Mist’s age at the date of the offending and on a change in the law relating to preventive detention as a consequence of Parliament’s passing the Sentencing Act 2002.) This court went on to decide that preventive detention was the appropriate sentence: [2005] 2 NZLR
791.
[5] Mr Mist appealed to the Supreme Court. It reversed this court’s decision, holding that a sentence of preventive detention could not be imposed on Mr Mist, as he was less than 21 years of age at the date of the commission of the offences: [2006] 3 NZLR 145. The Supreme Court quashed the sentence of preventive detention and reinstated the sentence originally imposed in the High Court. This was stated to be without prejudice to the Solicitor-General’s submission that in total the finite sentence was manifestly inadequate. The Supreme Court remitted the matter to this court pursuant to s 26 of the Supreme Court Act 2003.
[6] In effect, we are now required to consider the Solicitor-General’s fallback argument as originally presented, namely, whether the sentence imposed by Neazor J was manifestly inadequate.
Was the sentence manifestly inadequate?
[7] Neazor J did not refer to any authorities when fixing the sentence. That is perhaps not surprising given the enormity of Mr Mist’s offending: it is impossible to find a case involving substantially similar overall offending. The judge concluded that “how the sentences [were] put together [was] not the key issue”. Rather, it is the
end result, which must reflect the overall criminality of the offending. We agree. He went on to say:
[The total period of imprisonment] must take account of your existing manslaughter sentence in a way that does not negate that sentence. It must reflect the seriousness of the offending; the interests of the victims and of the community and the other general sentencing principles; and it has to provide for the future safety of the community
[29] It has to take into account your age which it is easy to lose sight of in the welter of offending. It has to take account of the relatively short period over which all the offending has occurred. It has to take account of your background, the effect of which has to be changed for the future. And it has to take account, in my view, the need not to make the sentence so long as to destroy any chance of rehabilitation and so create a new problem for the community in the years to come.
[30] On the best assessment I can make, having thought about it for some time, the proper sentence to impose on you will total 16 years’ imprisonment with a non-parole period of 10 years. That preserves the integrity of the manslaughter sentence, adds a significant nominal penalty in terms of the present offending and in terms of supervision when you are released. It reflects the totality of offending but gives you some incentive for rehabilitation.
[8] Mr Horsley, for the Solicitor-General, submitted that “the effective end sentence of 16 years’ imprisonment imposed for the knifepoint rape of a 12 year-old, the rape of a 14 year-old, the digital violation of a seven year-old, unlawful sexual intercourse with two 15 year-olds, and the vicious killing of a 17 year-old in the context of domestic abuse [was] plainly manifestly inadequate”. Mr Horsley contended that 16 years’ imprisonment would have been a lenient sentence if Mr Mist had been appearing for sentence just in respect of the sexual violations of the five girls. He added: “To then impose that sentence concurrently with the vicious killing of his partner gives no recognition to the totality of this offending.”
[9] Mr Horsley submitted that the appropriate sentence for the sexual offending (as we shall call all the offending other than that committed on Mr Mist’s partner) was 16 years’ imprisonment, to be imposed cumulatively on the 10 year sentence for manslaughter. Mr Horsley submitted that, if that course were adopted, there was no need for a further MPI order. That is because the standard parole period on a 16 year sentence (five years four months), when added to Ellen France J’s MPI of six years,
would produce an effective term of 11 years four months’ imprisonment, which
Mr Horsley submitted would be appropriate.
[10] Mr Lithgow QC, for Mr Mist, supported Neazor J’s sentence.
[11] We have no doubt, with respect to Neazor J, that the sentence imposed was clearly inadequate. We agree that the starting point for the sexual offending would have been, on a stand-alone basis, 16 years. Mr Lithgow submitted that offending would have justified a starting point in the range of 12 to 14 years. We cannot accept that. The rape of the 12 year-old on its own would have justified a 12 year starting point. To illustrate that, we give the facts relating to that rape.
[12] In January 2002, a 12 year-old girl was playing in a children’s play park with her five and six year-old sisters and her 12 year-old cousin. Mr Mist’s partner, the one he later killed, struck up a conversation with the 12 year-old. She then enticed the girl into a nearby bush area, where Mr Mist was waiting. The girl was then forced to watch Mr Mist’s partner give him a “blow job”. Following that, Mr Mist grabbed the girl and put a pocket-knife, with the blade extended, to her throat. She screamed and he put his fingers down her throat. He then took his fingers out and threatened to slit her throat and to kill her. Mr Mist then took the girl’s pants and underpants down, licked her vagina, digitally penetrated her, and then raped her. All the while, Mr Mist’s partner was present, silently watching.
[13] The 12 year-old’s victim impact statement revealed she had, unsurprisingly, suffered and continues to suffer significant psychological harm as a result of the offending. Her schoolwork had deteriorated, and indeed she stopped attending school altogether for a period.
[14] To that 16 year starting point needs to be added the ten years imposed by Ellen France J for the manslaughter and other offending committed against Mr Mist’s partner. That gets us to Mr Horsley’s 26 years, which is where he would stop. We do not stop there, however, as we consider three further adjustments need to be made.
[15] First, as Mr Lithgow submitted, there must be some moderation to ensure compliance with the totality principle. As Mr Lithgow said, the total sentence must be viewed as if all sentences had been imposed on the same day. That means, Mr Lithgow submitted, that the manslaughter sentence must be “written down” from the ten years Ellen France J imposed on a stand-alone basis. Mr Lithgow submitted that one should add, to his 12 to 14 years for the sexual offending, five years for the manslaughter, making a total (before mitigating circumstances) of 17 to 19 years.
[16] We accept the principle, but not the figures. In our view, the totality principle is met if the starting point is reduced to 23 years.
[17] The second adjustment we make is on account of youth. Neazor J clearly thought some adjustment should be made on that ground, a view strongly supported by Mr Lithgow. Indeed, Mr Lithgow got back to Neazor J’s 16 years by knocking one to three years off his 17 to 19 year starting point on the grounds of “youth”.
[18] Mr Horsley submitted no discount for Mr Mist’s age was required. He submitted that “a discount for youth is appropriate if the offending amounts to a youthful indiscretion, a display of immaturity or an impulsive action immediately regretted”. Mr Mist’s actions, he said, did not fit into that category. The criminality in this case was so serious that age effectively became irrelevant. In this regard, he referred us to R v Rapira [2003] 3 NZLR 794 (CA).
[19] We respectfully adopt this court’s reasoning in Rapira. At [152], this court said:
The youth of an offender is a factor relevant to sentencing. The reason is not that youth by itself prompts leniency. In some cases it may indicate immature judgment which affects culpability. In other cases it may suggest the prospects of rehabilitation are better than in the case of a mature offender.
[20] Unfortunately the offending in this case cannot be put down to “immature judgment”. Further, the psychologists’ reports give no optimism with respect to rehabilitation. The court in Rapira went on to say at [153]:
Any consideration of youth must, however, give way to the public interest. The Judge was right to take the view that the youth of the offenders was not a factor which in the circumstances could be given great weight. This was not impulsive behaviour. It was deliberate, repetitive and organised criminal activity. It was offending of a kind too commonly undertaken by young people in groups. The offending was of serious violence and had tragic consequences. A deterrent sentence was called for.
[21] For similar reasons, we are satisfied that Mr Mist’s youth can be given little weight. His offending was deliberate, repetitive, and had tragic consequences for his six victims. We would allow only a year’s reduction on this ground. That brings the sentence back to 22 years.
[22] The final consideration is the fact this is a Crown appeal, where the Court of Appeal corrects error, not by increasing the sentence to the level which would have been imposed were the appellate court the original sentencing court, but by increasing it to the lowest appropriate sentence for the offending: R v Hunter [1985]
1 NZLR 115 at 121 (CA). We consider here the range would have been 20 to 24 years’ imprisonment overall. On the Hunter principle, we adopt 20 years.
[23] That result can be best achieved by quashing the sentence on count 2 (sexual violation by rape of the 12 year-old). In its place, we impose a term of 10 years’ imprisonment, cumulative on Mr Mist’s existing sentence of 10 years’ imprisonment for manslaughter. The total effective sentence will now be, therefore, 20 years’ imprisonment. All other sentences can remain unchanged. The sentences relating to the sexual offending remain concurrent amongst themselves.
[24] We consider Mr Mist should serve an MPI of 10 years’ imprisonment. That is what Neazor J thought too. We achieve that by imposing an MPI of four years on count 2. That will get added to the six year MPI imposed on the manslaughter charge, making the total MPI 10 years. (Ellen France J’s six year MPI remained in place following Neazor J’s later sentencing. It simply ceased to have practical effect, as it was subsumed by Neazor J’s MPI of ten years on what was then his concurrent sentence of 16 years’ imprisonment on count 2. The consequence of our judgment is to reinstate her MPI order as again having practical effect.)
Solicitors:
Crown Law Office, Wellington
4
0
0