MARSHALL v R [2023] NZCA 625

MARSHALL v R [2023] NZCA 625 [7 December 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: ORDER MADE IN NZHC [2020] 1271 AT [86] PROHIBITINGPUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYINGPARTICULARS OF CO-OFFENDER PURSUANT TO S 202 OF THECRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA50/2023[2023] NZCA 625BETWEEN CAREY JOHN MARSHALLAppellantAND THE KINGRespondentCourt: Wylie, Mander and Muir JJCounsel: G H Vear and E E McClay for AppellantB D Vanderkolk for RespondentJudgment:(On the papers)7 December 2023 at 11 amJUDGMENT OF THE COURTThe application for an extension of time to appeal is granted.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Mr Carey Marshall pleaded guilty in the Palmerston North High Court to fourrepresentative charges of sexual violation by unlawful sexual connection,1 andrepresentative charges of indecent assault on a child under 12 years,2 bestiality,3 andknowingly making an objectionable publication.4 On 8 June 2020, he was sentencedby Doogue J to an effective sentence of 16 and a half years' imprisonment and orderedto serve a minimum period of 10 years.5[2] An appeal against sentence is required to be filed within 20 working days afterthe date the sentence was passed.6 Mr Marshall did not file his notice of appeal until30 January 2023, some two and a half years after the expiry of the period for filing anappeal. He now seeks an extension of time.7 His application for leave was directedto be dealt with separately from the substantive appeal.[3] Mr Marshall argues the cause of the delay was the result of difficulties securingcounsel and that his appeal, which rests on a submission the sentence was manifestlyexcessive, has merit. The application for an extension of time is opposed by theCrown. It says the sentence was appropriate in all the circumstances.Reasons for delay[4] Mr Marshall has filed an affidavit in support of his application for an extensionof time. He asserts he met with his counsel immediately after sentencing and theyagreed he should appeal. Mr Marshall maintains he understood from that meeting thathis counsel would take the necessary steps to advance an appeal and visit him at prisonfor that purpose. He says he repeatedly attempted to contact his counsel about hisappeal by telephone and email, and that after doing so his counsel undertook to visithim but never did.1 Crimes Act 1961, s 128(1)(b) and 128B — maximum penalty of 20 years' imprisonment.2 Section 132(3) — maximum penalty of 10 years' imprisonment.3 Sections 143 and 66 — maximum penalty of seven years' imprisonment.4 Films, Videos, and Publications Classification Act 1993, ss 123(1) and 124(1) — maximumpenalty of 14 years' imprisonment.5 R v Marshall [2020] NZHC 1271 [sentencing notes].6 Criminal Procedure Act 2011, s 248(2).7 Section 231(3).[5] Over the course of 2020 and the following year, Mr Marshall, at times with theassistance of Corrections officers, made further efforts to follow up with his counseland to contact the Legal Aid Agency. There are some Corrections Department recordsthat support Mr Marshall's claims that he sought to progress his appeal but was unableto secure the necessary legal assistance.[6] In around December 2022, it appears a formal application for legal aid wasfiled. Mr Marshall met with newly assigned counsel in January the next year and thisresulted in a notice of appeal being filed by the end of that month. Conduct ofMr Marshall's application to appeal was reassigned to the Public Defence Service inMay 2023.[7] Apart from signalling a note of caution regarding Mr Marshall's self-reportingof his efforts to contact his former counsel, the Crown does not seek to contestMr Marshall's account. It accepts it is not prejudiced by the delay, notwithstanding itslength, but it seeks to oppose the application on the basis of its merits.The offending[8] Mr Marshall's sexual offending was extremely serious. It involved theprolonged sexual abuse of a young child over some three years, when she was agedbetween four and seven years. The nature and extent of the sexual offending coveredby the representative charges involved various forms of oral sexual connection thatoccurred on a daily basis, and the regular digital and penile penetration of the child'sanus that, at Mr Marshall's instigation, often included the participation of aco-offender. These and other sexual acts were sometimes filmed or photographed, andthe child was often subjected to various other indignities. It is apparent the childbecame normalised to this sexual abuse such was its regularity over a long periodof time.[9] The bestiality offending took place separately on multiple occasions andinvolved a number of dogs. It did not include the child but Mr Marshall's co-offenderwas described by the sentencing Judge as a victim of this offending.88 Sentencing notes, above n 5, at [3].[10] Unsurprisingly, the effects on the child have been profound. She has sufferedphysical and psychological damage. There are grave fears for her long-term mentaland social wellbeing as a result of what she has experienced.The sentence[11] A significant list of aggravating features were identified by the Judge.9 Theseincluded the vulnerability of the four-year-old victim, the breach of trust, theinvolvement of a co-offender, the scale of the offending that involved associated actsof degradation, the frequency and degree of the violations, the planning andpremeditation in organising opportunities to offend, and the serious harm caused tothe victim. After reviewing these factors and referring to the guideline judgment ofR v AM,10 the Judge settled on a starting point for the representative charges ofunlawful sexual connection of 18 years' imprisonment.11[12] In respect of the representative bestiality charge, the Judge concluded that asentence of five years' imprisonment should be added. This resulted in a total startingpoint of 23 years' imprisonment.12 However, because of totality considerations, thatwas reduced to a starting point of 20 years and six months' imprisonment.13A 20 per cent discount was applied to reflect Mr Marshall's guilty pleas, which led tothe final sentence of 16 years and six months' imprisonment.14[13] The Judge found the sentencing purposes of accountability for the harm doneto the victim, denunciation and deterrence, and the need to protect the communityrequired the imposition of a minimum period of imprisonment, which resulted in anon-parole period of 10 years.15 Notwithstanding being satisfied there was clearevidence indicating a significant risk of reoffending,16 the Judge declined the Crown'sapplication for a sentence of preventive detention. The Judge considered there was a9 At [25]–[31].10 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.11 Sentencing notes, above n 5, at [45].12 At [47].13 At [48]–[49]; and Sentencing Act 2002, s 85(2).14 Sentencing notes, above n 5, at [52]–[53].15 At [53].16 At [75].need to afford Mr Marshall the opportunity to address the underlying causes of hisoffending before resorting to such a sentence.17Extension of time to appeal: relevant principles[14] This Court's discretion to extend the time allowed for filing a notice of appealis to be exercised with regard to the importance of the principle of finality in litigationwhich the statutory time limit is designed to achieve.18 Relevant considerations to betaken into account include whether the delay is adequately explained, and whetherthere are compelling reasons to extend time.19 The Court may have regard to theseriousness of the charges, the merits of the proposed appeal, the effect on others, andprejudice to the Crown.20 The overarching consideration must always be the interestsof justice.21AnalysisDelay[15] In the absence of any direct challenge to Mr Marshall's evidence or steps takenby the Crown to investigate how matters unfolded after sentencing, the informationprovided by Mr Marshall about the reasons for the delay stand on their face. Whilewe find it difficult to understand why Mr Marshall did not progress matters with theLegal Aid Agency before December 2022, after receiving no satisfactory response tohis enquiries over the prior two and a half years, the Crown responsibly does not claimany prejudice from this delay.[16] That does not, by itself, allay concerns regarding the erosion of the principleof finality, nor the interests of the victim and her family in the criminal proceedingshaving been completed. However, it is to be acknowledged the ambit of the appeal islimited to the length of the sentence, which will remain of considerable length even inthe event of a successful appeal.17 At [76].18 Criminal Procedure Act, s 231(3); R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006]3 NZLR 42 (CA) at [103].19 Ellis v R [2019] NZSC 83 at [15].20 At [15].21 Knight, above n 18, at 587; Lee, above n 18, at [96]–[99]; and Ellis, above n 19, at [15].Merits of the appeal[17] Mr Marshall seeks to prosecute his appeal on the basis the sentence wasmanifestly excessive. He has identified four grounds:(a) the starting point for the sexual offending was too high;(b) the uplift for the bestiality offending was excessive;(c) insufficient credit was afforded for aspects of mitigation, including hisguilty pleas and "personal history of trauma" that was said to berelevant to his offending; and(d) the MPI was excessive.[18] The starting point of 18 years' imprisonment adopted by the Judge for thesexual violation offending straddles bands three and four of the guideline judgment ofR v AM, that sets out graduated categories for this type of sexual offending.22 Thosebands respectively provide for starting points of 12–18 years imprisonment and16-20 years' imprisonment.23 The former band encompasses offending whichinvolves two or more aggravating factors that increase culpability to a high degree, ormore than three factors to a moderate degree and will include single episodes ofoffending which are particularly cruel, callous or violent.24 The latter band willinclude factors that place offending within the higher end of band three but will alsoinclude multiple instances of offending over considerable periods of time.25 Aparadigm case of offending of this type was described as being where repeated rapesby a family member have been committed over a period of years. Where suchoffending involves children it will attract a starting point at the higher end ofband four.2622 R v AM, above n 10, at [90].23 At [90].24 At [105].25 At [108].26 At [109].[19] The Crown argues there is no merit in the appeal and that the sentence was anappropriate and proportionate response to the offending. In regard to the sentence forthe sexual offending against the child, it points to the sentencing Judge's identificationof multiple aggravating features which it submits led to the accurate identification ofa justifiable starting point having regard to the applicable bands described in R v AM.In regard to this issue, both parties referenced a number of broadly similar cases ofserious sexual offending in support of their respective positions.27[20] We observe that no two cases are the same and, invariably, the circumstancesof each will vary. The key consideration will remain whether the starting point isreconcilable with the guidance provided by this Court in R v AM and comparable withthe described features set out in the identified bands for serious sexual offending,which necessarily involve some degree of overlap. Because of other considerationsthat bear on our decision, it is not appropriate for us to say more at this stage in thecontext of an application for leave. However, we are bound to observe that, had thisbeen the sole identified ground of appeal, it would unlikely have justified leave.[21] The other grounds of appeal that include the uplift for the bestiality offending,discounts for mitigating factors, at least in respect of Mr Marshall's personalbackground which may require closer examination, and the length of the non-paroleperiod, we accept may be worthy of further ventilation and greater argument.However, it would be premature to explore the merits of those issues further at thisstage given our ultimate decision.Decision[22] We have decided to grant leave to extend the time for filing an appeal againstsentence. Mr Marshall has been sentenced to a significant period of imprisonment, inrespect of which he has no possibility of parole before the elapse of 10 years. It is notchallenged that Mr Marshall, immediately after the imposition of his sentence,expressed a wish to appeal and gave instructions to his counsel to do so. The appealwas not progressed.27 Ellmers v R [2013] NZCA 676; R v N (CA88/05), 23 November 2005; R (CA528/2016) v R [2017]NZCA 210; Charteris v R [2021] NZHC 1171; L v R [2021] NZCA 297; and F (CA844/2013) v R[2014] NZCA 390.[23] While we have reservations regarding the reasons why that was so,Mr Marshall has been able to point to material that supports his claims of havingattempted to pursue an appeal and of having made several enquiries in an effort toexpedite that course. The delay is not entirely satisfactorily explained given the periodof time that has elapsed but, in the circumstances, notwithstanding the importance offinality, we consider he should be given the opportunity to have his appeal heard.[24] In essence, we consider the interests of justice favour that course when regardis had to the length of the sentence that was imposed and the considerable period ofimprisonment he must presently serve before being eligible for parole. We have beencareful not to express any firm views regarding the overall merits of Mr Marshall'sgrounds, which will be for the panel that hears the substantive appeal to address. Thegrant of leave to appeal should not be taken as an indication of their worth. While thedelay has been lengthy, we consider there are sufficient factors relating to thisparticular case that favour an extension of time to bring an appeal against sentence.Leave is therefore granted.Result[25] The application for an extension of time to appeal is granted.Solicitors:Public Defence Service, Tauranga for AppellantCrown Solicitor, Palmerston North for Respondent