MARONG v R [2020] NZCA 179

MARONG v R [2020] NZCA 179 [22 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA758/2018[2020] NZCA 179BETWEEN SAINEY MARONGAppellantAND THE QUEENRespondentHearing: 22 April 2020Court: Brown, Gilbert and Dobson JJCounsel: C M Ruane for AppellantP A Currie and S J Mallett for RespondentJudgment: 22 May 2020 at 12.30 pmJUDGMENT OF THE COURTA The application for leave to appeal out of time is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] On 23 February 2018, after a trial in the High Court at Christchurch,the appellant (Mr Marong) was found guilty of the murder of a Christchurch sexworker, Renee Duckmanton. On 20 April 2018, the trial Judge, Mander J, sentencedMr Marong to life imprisonment and imposed a minimum period of imprisonment(MPI) of 18 years.11 R v Marong [2018] NZHC 748.[2] Initially, Mr Marong pursued an appeal against his conviction. He representedhimself in that appeal, which was dismissed on 28 November 2018.2[3] The present appeal against sentence was filed on 10 December 2018, almostseven months out of time. Mr Marong has deposed in an affidavit that he was confusedabout the procedure that applied to such appeals, and was having difficulty obtaininglegal representation.[4] Leave to bring the sentence appeal out of time is not opposed by the Crown.Given some of the points raised in criticism of the sentencing Judge's application ofs 104 of the Sentencing Act 2002 (the Act), we consider it is in the interests of justiceto grant leave for the appeal to be brought out of time, and accordingly so order.The circumstances of the offending[5] On the evening of 14 May 2016, CCTV footage shows Mr Marong picking upMs Duckmanton from a central Christchurch street where she was working as a sexworker. He drove her to the outskirts of Christchurch. Over an hour after he hadpicked her up, Ms Duckmanton's mobile phone was disconnected from thetelecommunications network. The Judge's analysis of the facts reflected a belief that,around that time, Mr Marong murdered Ms Duckmanton in the back of his car bystrangling her.[6] Mr Marong left Ms Duckmanton's body in the boot of his car until thefollowing day, when he disposed of her semi-naked body on the side of a ruralCanterbury road. He doused the body with petrol and set her on fire. A post-mortemestablished that intercourse had occurred. There was an issue as to whether intercourseoccurred before or after the victim died, but in the absence of proof on the point,the Judge put it to one side.[7] Police investigations into internet searches undertaken by Mr Marong overa substantial period prior to the murder revealed various enquiries about matters suchas how to kill a person with bare hands, the use of chloroform to stupefy a victim,2 Marong v R [2018] NZCA 531.disposal of bodies by fire, and also about the circumstances of previous murders ofsex workers in Christchurch.[8] Whilst on remand in custody prior to trial, Mr Marong made comments toprison officers to the effect that the killing was like "hunting in the wild" and,presumably speaking of sex workers, "they're slaves and she met the criteria". Healso acknowledged that the victim had not deserved her murder and that she wasinnocent.[9] At trial, Mr Marong claimed that he and Ms Duckmanton had consensual sexin his car, following which she asked to be taken back to Christchurch but he wantedto proceed with his original intention of taking her to a friend's house. He claimed tohave become agitated, and impulsively responded by compressing her neck to silenceher. He claimed he did not know what he was doing. The Judge rejected thatexplanation, observing that he was sure the jury had also rejected it.3The analysis on sentencing[10] Mander J dismissed any prospect that imposing a sentence of lifeimprisonment would be manifestly unjust. His analysis instead focused on whetherthe criteria in s 104 of the Act applied, so as to require an MPI of 17 years or more.That section provides:104 Imposition of minimum period of imprisonment of 17 years ormore(1) The court must make an order under section 103 imposing a minimumperiod of imprisonment of at least 17 years in the followingcircumstances, unless it is satisfied that it would be manifestly unjustto do so:(a) if the murder was committed in an attempt to avoid thedetection, prosecution, or conviction of any person for anyoffence or in any other way to attempt to subvert the courseof justice; or(b) if the murder involved calculated or lengthy planning,including making an arrangement under which money oranything of value passes (or is intended to pass) from oneperson to another; or3 R v Marong, above n 1, at [6].(c) if the murder involved the unlawful entry into, or unlawfulpresence in, a dwelling place; or(d) if the murder was committed in the course of another seriousoffence; or(e) if the murder was committed with a high level of brutality,cruelty, depravity, or callousness; or(ea) if the murder was committed as part of a terrorist act (asdefined in section 5(1) of the Terrorism Suppression Act2002); or(f) if the deceased was a constable or a prison officer acting inthe course of his or her duty; or(g) if the deceased was particularly vulnerable because of his orher age, health, or because of any other factor; or(h) if the offender has been convicted of 2 or more counts ofmurder, whether or not arising from the same circumstances;or(i) in any other exceptional circumstances.(2) This section does not apply to an offender in respect of whom an orderunder section 86E(2)(b) or (4)(a) or 103(2A) is made.[11] On the prospect of the murder having involved calculated or lengthy planning,4the Judge cited the diverse internet searches Mr Marong had made in the weeks andmonths leading up to the murder, which the Judge saw as being consistent with thefeatures of the killing. This included internet searches for:(a) sex workers in Christchurch and information regarding previousmurders of Christchurch prostitutes;(b) information on chemicals used by kidnappers, including informationabout chloroform and where to get it; and(c) information on "how to kidnap a girl".In addition, he had accessed sites on how to kill with bare hands and dozens ofpornographic videos depicting necrophilia.4 Sentencing Act 2002, s 104(1)(b).[12] All of this led the Judge to conclude that Mr Marong had been fixated with theidea of abducting and killing a Christchurch prostitute. Mr Marong had admitted tofollowing a Christchurch sex worker on an earlier occasion in pursuit of a stated desireto kill one.[13] The Judge acknowledged steps taken to conceal the offending, including usingtwo vehicles, lying to associates so that they would unwittingly provide him withassistance, the burning of the victim's body and the cleaning of the vehicle in whichher body had been stored. Although potentially reflective of planning, the Judgeaccepted that these steps might equally have been taken in reaction to the death afterhe had killed the victim, so were discounted in his assessment of the extent ofpremeditation.[14] The Judge was left unsure as to whether the evidence of Mr Marong's activitiesprior to the murder qualified as calculated or lengthy planning. However, the Judgeconsidered it unnecessary to make a definitive finding on the presence of that feature,because he considered the circumstances of the murder were of an exceptional nature.5[15] The Judge found that the murder had been committed with a high level ofbrutality, cruelty, depravity or callousness.6 He acknowledged that death bystrangulation had been achieved without a weapon and without there being evidenceof a prolonged attack. However, the Judge still considered it to be a particularlycallous and cruel murder. It was cold-blooded, with the choice of strangulation as themode of killing likely being a premeditated one, consistent with a depraved motivationto kill a sex worker. Ms Duckmanton had been targeted by virtue of her occupation.The Judge cited Mr Marong's treatment of the body in leaving her in the boot of hiscar until the following evening, then dumping her and setting her semi-naked body onfire, as evidencing a cruel disregard for the victim that was consistent with, andelevated, the callousness of the circumstances of the murder itself.5 Section 104(1)(i).6 Section 104(1)(e).[16] As to the vulnerability of the victim,7 the Judge noted that she weighed48 kilograms and measured approximately 150 centimetres in height. She sufferedfrom cerebral palsy, which limited the movement down the left side of her body. Whenadded to her inherently vulnerable predicament as a young woman working alone atnight on the street as a sex worker, these physical limitations were assessed bythe Judge as rendering her even more vulnerable.[17] On the other exceptional circumstances contemplated in s 104(1)(i), the Judgeobserved:8[24] Whatever reservations there may be regarding aspects of the particularstatutory circumstances listed in the Act, any one of which by itself maytrigger the presumptive imposition of a minimum period of imprisonment ofat least 17 years, I consider the combined circumstances of your offending areexceptional and fall well inside the scope of the legislative policy that attractssuch a minimum term.[18] The Judge then continued:[25] It is an inescapable conclusion that your murder of Ms Duckmantonwas the manifestation of an apparent depraved need to target a sex worker forthe purpose of killing that woman to meet some sexual ambition. It cannot beestablished whether you succeeded in that regard, however, it is apparent thiswas your motivation. On this night, you carried through with a crime that youhad been contemplating for some time, at least to the point of committing acoldblooded killing. The calculated nature of the offending and the insightobtained from your subsequent disclosures demonstrate the callous disregardyou had for your victim.[26] Your subsequent actions after the murder show you were devoid ofany empathy for Ms Duckmanton. [19] On the basis of this reasoning, the Judge was satisfied that s 104 was engaged.After reflecting on Mr Marong's personal circumstances and finding there were nomitigating factors, the Judge determined an MPI of 18 years was justified.Arguments on appeal[20] In his written submissions in support of the appeal, Mr Ruane submitted thatthe Judge had erred in finding any of the s 104 features to be present. He argued that7 Section 104(1)(g).8 R v Marong, above n 1.the extent of features such as callousness and depravity, and the vulnerability of thevictim, had been overstated and that the circumstances up until the death of the victimdid not take this beyond the seriousness of "ordinary" murders. Mr Ruane submittedthat the Judge had wrongly attributed relevance to steps taken by Mr Marong after thevictim was dead in considering whether s 104(1) features were present. Further, thatthe Judge had double-counted conduct that ought only to have been taken into accountin considering whether one feature was present.[21] In oral argument, Mr Ruane was inclined to concede that at least one of thes 104 features was present, so that the mandatory requirement for an MPI of 17 yearswas triggered. However, he maintained his criticism that the Judge's approach toassessing the presence of s 104 features was wrong or inappropriate. He furthermaintained that the Judge had not provided reasoning for increasing the MPI from17 to 18 years. The outcome contended for was a reduction in the MPI to 17 years.[22] The written submissions for the Crown emphasised that it is the correctness ofthe end sentence that must be the ultimate determinant in such an appeal. Criticismsof steps in the Judge's reasoning cannot avail an appellant unless they lead to thewrong result.[23] On the presence of s 104(1) features, it was submitted for the Crown thatcalculated or lengthy planning did not have to be sophisticated, but rather there had tobe planning to a heightened degree. It was submitted that the diverse range of internetsearches undertaken by Mr Marong, and his acknowledged trailing of another sexworker on an earlier occasion in pursuit of his desire to kill a sex worker, satisfied therequirements for that feature. They amounted to active research on how to kidnap,how to kill and how to avoid detection, in circumstances where the murder was carriedout in a manner consistent with the preparatory research.[24] As to whether the murder was committed with a high level of brutality, cruelty,depravity or callousness, the Crown cited previous decisions of this Court confirmingthat an assessment of whether this feature is present can take into account theoffender's conduct after the death of the victim.9 The Crown submitted that the murderwas indeed committed in a callous manner, which was aggravated by leaving thevictim's body in the boot of a car for a day, dumping it on the side of a rural roadsemi-naked and dousing it with petrol in an attempt to avoid detection. Added to thiswere Mr Marong's comments to prison officers about the killing whilst he was onremand. The Crown submitted that his course of conduct before, during and after themurder qualified as a high level of callousness.[25] As to the level of the victim's vulnerability, the Crown submitted she wasparticularly vulnerable by virtue of her occupation and physical limitations caused byher cerebral palsy. At the hearing, Mr Mallett, who presented submissions forthe Crown, conceded that Mr Marong may not have been aware of the victim'scerebral palsy during the encounter. Nonetheless, the Crown maintained itssubmission that her occupation as a sex worker required her to trust customers. In thiscase, agreeing to get into Mr Marong's car and travel a distance with him, when addedto her very slight stature, meant she presented as a particularly vulnerable victim.[26] The Crown submitted that the Judge's analysis of the extent to which s 104(1)features were present amply justified the increase of one year above the mandatory17 year MPI.Analysis[27] We have concerns with two aspects of the Judge's analysis on sentencing.First, the Judge's comments at [24] of the sentencing notes (quoted at [17] above)suggest that individual features of an offender's conduct that are inadequate to makeout the presence of one of the features specified in s 104(1) may nonetheless becumulatively assessed to constitute the residual feature of "exceptional circumstances"specified in s 104(1)(i). If the Judge intended to adopt such an analysis, then weconsider it would be in error.9 R v Frost [2008] NZCA 406 at [40]; and Akash v R [2017] NZCA 122 at [21]. The Crown alsosubmitted the approach here was consistent with other High Court analyses of s 104 inR v Korewha [2015] NZHC 308; R v Davies [2017] NZHC 729; and R v Carroll [2017]NZHC 2691.[28] The consequences of the s 104 threshold being met are grave. With the limitedexception of cases where it would be manifestly unjust to do so, the mandatoryconsequence is that an offender will be sentenced to an MPI of not less than 17 years.Parliament has defined the relevant features so that the threshold is triggered either inspecifically defined circumstances such as the killing of a constable,10 where themurder is part of a terrorist act,11 or where the offender's conduct of an aggravatingtype is present to a high level. That is, a clear margin above the extent to which suchfeatures are likely to ordinarily arise in the course of a murder. The planning must becalculated or lengthy, the brutality, cruelty, depravity or callousness must be to a highlevel, or the victim must be particularly vulnerable. Whilst some aspects of theoffender's conduct may qualify as behaviour going to more than one of the features,the level to which such features are present must be measured individually. Forinstance, a moderate level of planning could not be transformed into a high level ofplanning by a finding that it reflected a callous attitude by the offender.[29] Equally, the other exceptional circumstances in s 104(1)(i) cannot be made outby the presence of low or moderate levels of other aggravating conduct not present ata sufficient level to trigger one or more of the previously specified features of theoffending.[30] Turning to the analysis of whether any of the s 104(1) features were presenthere, we are satisfied that Mr Marong's planning qualifies as calculated or lengthy.As this Court observed in Kaur v R, planning is not required to be competent orsophisticated to qualify as planning for the purposes of s 104(1)(b), but must be presentto a heightened degree, either because of the period of time or because of the degreeof thought that has gone into it.12 The scope and extent of internet searches on mattersrelevant to how Mr Marong could kill a Christchurch sex worker and then attempt toavoid detection qualify as both calculated and lengthy planning. Among other relevanttopics, he had researched in some detail:10 Sentencing Act, s 104(1)(f).11 Section 104(1)(ea).12 Kaur v R [2017] NZCA 465 at [49].(a) how killing without use of a weapon could occur;(b) how to stupefy a victim;(c) internet articles about the circumstances of previous killings ofChristchurch sex workers;(d) the capabilities of CCTV footage; and(e) the ability to monitor the location of cell phones from transmissiontowers.[31] Accordingly, planning was present to a heightened degree.[32] As to the level of callousness, Mr Ruane submitted that the wording ofs 104(1)(e) required this assessment to stop at the point the murder was committed.The wording of subs (1)(e) arguably supports that interpretation. However, we adoptthe approach to this assessment reflected in earlier appeal decisions cited by theCrown. In Frost, the offender helping himself to food from the refrigerator of thejust-murdered victim was included in the assessment of the level of callousness of themurder.13 In Akash, the offender's dumping of the victim's body on a roadside wasincluded in the assessment of the relative level of callousness that was present in theoffending.14[33] Here, the evidence includes research and planning before the event, and closelylinked conduct in disposing of the body to attempt to avoid detection. Accordingly,the sequence of events constitutes a course of conduct, and an assessment of the levelof callousness can appropriately extend to the offender's conduct and statements afterthe killing. Dumping a young woman's semi-naked body on the roadside, dousing itwith petrol and setting it alight, when seen in light of the manifestly callous commentsmade to prison officers, reflects Mr Marong's state of mind in carrying out the killing.We are satisfied that the s 104(1)(e) feature was also present in this case.13 R v Frost, above n 9.14 Akash v R, above n 9.[34] As to the level of vulnerability of the victim,15 Mr Ruane submitted that anyextent of increased vulnerability on account of her cerebral palsy could not be countedagainst Mr Marong in the absence of evidence that he was aware of it. The Crown'swritten submissions analysed the extent of the victim's vulnerability objectively,without regard to any extent that her impairments would not have been apparent toMr Marong at the time of the killing.[35] This Court appears not to have considered whether the assessment of the extentof a murder victim's vulnerability is to be undertaken objectively, reflecting allrelevant circumstances of the victim, or more narrowly by reference only to the aspectsof vulnerability that were apparent to the offender. The wording of s 104(1)(g)suggests an overall assessment of vulnerability. The wording in this provision may becontrasted with the terms of s 9(1)(g) of the Act where potential aggravating featuresof the victims of crimes more generally addresses vulnerability with the residualprospect of other factors that could be relevant to vulnerability being confined to those"known to the offender". The absence of that qualification in s 104(1)(g) mightsuggest that such limitation does not apply.[36] On the other hand, there is some force in Mr Ruane's point that the featureslisted in s 104(1) of the Act are to enable an assessment of the level of a murderer'sculpability and, given the consequences, culpability should not be increased bycircumstances not known to the murderer at the time.[37] This point of interpretation was not fully argued before us. A determination onit should await an appeal in which it is. Accordingly, our cautious approach is toexclude Ms Duckmanton's cerebral palsy condition in the assessment of the extent ofher vulnerability.[38] Ms Duckmanton was more vulnerable than other sex workers on the street inChristchurch because of her very small physical stature. In agreeing to get intoMr Marong's car and leave the street where she was working, she was necessarilytrusting that he would comply with whatever terms had been discussed for consensualsexual activity between them. She assumed the risk that she could trust him to that15 Sentencing Act, s 104(1)(g).extent, but that does not lessen the vulnerability of the predicament she found herselfin shortly thereafter. We consider the combination of the inherent vulnerability of herpredicament, when added to her unusually small physical stature, did render her aparticularly vulnerable victim.[39] It follows that the Judge was clearly justified in finding that s 104(1) applied.We acknowledge that by the end of argument, Mr Ruane had conceded that point.[40] The second aspect of the sentencing analysis that is of concern is the absenceof explicit reasoning as to whether an MPI of more than 17 years was required.[41] There is some merit in the submission for the Crown that the extent ofthe Judge's analysis of facts going to the s 104(1) features contained sufficient detailto make out the need for an increase above the mandatory 17 year MPI. However, weconsider the analysis is incomplete without reasoning identifying why, once s 104(1)applies, the mandatory MPI of 17 years was inadequate and the one year increase wasjustified.[42] Although not essential, it is an exercise likely to be better informed byreference to the circumstances of other similar sentencings. The Crown submissionson appeal did not include reference to any comparable sentencings, but rathercontended that once the Court confirmed that s 104(1) applied, an 18 year MPI couldnot be characterised as manifestly excessive.[43] Section 104 applies when any one of the features in subs (1) is found to bepresent. Here, we have found that three of the features were present, leading to theconsideration of whether the statutory MPI of 17 years is adequate. We agree with thesentencing Judge that the extent to which the s 104(1) features were present warrantsan uplift.[44] In R v Baker, this Court held that the presence of three respects in which s 104was engaged indicated that a higher starting point MPI than 17 years wasappropriate.16 Since that appeal, this Court has also upheld MPIs of 19 years in16 R v Baker [2007] NZCA 277 at [23].a number of appeals involving murders of former partners where more than ones 104(1) feature was present.17Result[45] The assessment of the appropriate MPI requires consideration of all theindividual circumstances, including the extent to which s 104(1) features were present.We are satisfied that the extent to which Mr Marong undertook planning for themurder, the callousness of the way he went about it including his conduct after thekilling, and the particular vulnerability of his small and defenceless victim, justifiedan additional year beyond the 17 year MPI set by s 104. We are not persuaded thatthe Judge erred in setting that level of MPI.[46] The appeal is dismissed.Solicitors:Crown Solicitor, Christchurch for Respondent17 Singh v R [2019] NZCA 436, which included a review of numerous potentially comparablesentencings at [19]–[26].