Marfell v Police

[2019] NZHC 368

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-39

[2019] NZHC 368

STUART BRADLEY MARFELL

v

NEW ZEALAND POLICE

Hearing:	20 February 2019 (via AVL)
Appearances:	W R Hawkins for Appellant C R Stuart for Respondent
Judgment:	7 March 2019

JUDGMENT OF CLARK J

Introduction

[1]        Mr Marfell was sentenced to three years and four months imprisonment in the District Court at Napier on 6 November 2018 for the following charges:1

(a)three charges of burglary;2

(b)five charges of receiving stolen goods (two charges of receiving under

$500,3 one charge of receiving between $500 – $1000,4 two charges of receiving over $10005).

1      Police v Marfell [2018] NZDC 23153.

2      Crimes Act 1961, s 231, maximum penalty 10 years imprisonment.

3      Section 247(c), maximum penalty three months imprisonment.

4      Section 247(b), maximum penalty one year imprisonment.

5      Section 247(a), maximum penalty seven years imprisonment.

MARFELL v NEW ZEALAND POLICE [2019] NZHC 368 [7 March 2019]

(c)one charge of theft under $500;6

(d)one charge of possessing a knife in a public place;7 and

(e)three charges of possession offensive weapons.8

[2]        Mr Marfell appeals his sentence as manifestly excessive. His essential position is that the District Court Judge erred in emphasising denunciation at the expense of rehabilitation.

Background to charges

Facts relating to offensive weapons charges

[3]        On 15 February 2018 Mr Marfell was the passenger of a fleeing car stopped by Police at Harold Holt Avenue, Napier. Police located a tomahawk, knife and oleoresin capsicum spray (pepper spray). Mr Marfell told police he had the weapons for his personal safety. He said this was due to a prior incident.

[4]        On 21 February 2018 Mr Marfell was a passenger in a car stopped by Police. Police observed two large metal bars between the passenger seat and the door and commenced a search for offensive weapons. Police located a green cooler bag containing a wallet with Mr Marfell’s licence; a 12-inch long wooden club with a three to four inch metal spike; a medium sized metal folding knife with a four inch blade and a Karambit knife with a four to five inch curved blade. Mr Marfell admitted the bag was his.

Facts relating to burglary charges

[5]        At 11am on 22 January 2018 Mr Marfell entered and burgled a property in Lanark Crescent, Napier. The victim’s 14-year-old daughter was inside the house.  Mr Marfell went down the driveway and into the sleepout attached the garage. He

6      Section 223(d), maximum penalty three months imprisonment.

7      Summary Offences Act 1981, s 13A, maximum penalty three months imprisonment or $2,000 fine.

8      Crimes Act 1961, s 202A, maximum penalty three years imprisonment.

collected numerous items of value including a television, shoes, jewellery, bedding and clothing. He texted his co-offender to drive up the driveway to meet him. His co- offender did so and the pair loaded the items into the boot of the car and drove away.

[6]        At 2.45pm on 30 January 2018 Mr Marfell arrived (with an associate) at an address in King Street, Napier. Mr Marfell gained entry to the house through an internal door and stole jewellery, cosmetics, electronics, sunglasses and watches to a value exceeding $5,000. Later that day the defendant attempted to sell some of the stolen items to an associate.   On 21 February 2018 Police were in contact with     Mr Marfell concerning an unrelated matter. On searching his car the Police located a pair of silver earrings confirmed to be stolen from the King Street property.

[7]        On 19 February 2018 there was a burglary at Townshend Crescent, Napier. Numerous items of value were stolen including passports, a valve for a vehicle exhaust, jewellery, a handbag and other personal items. At 5pm that day the victim found his stolen exhaust valve advertised for sale on a Hustle Live Facebook page. The profile name of the seller was Stuart Marfell, the defendant. The defendant was spoken to by Police later that evening. Police searched Mr Marfell’s car and located all items stolen from the burglary. The defendant declined to comment.

Facts related to receiving charges

[8]        On 14 January 2018 there was a residential burglary at Guppy Road, Taradale. Numerous items of value were taken (mainly jewellery).

[9]        During the weekend of 17/18 January 2018 there was a residential burglary at Jervois Road, Napier. Items to a value exceeding $11,000 were stolen including jewellery and a 2007 Kia Rio hatchback car and keys. In the early hours of 18 January the defendant texted associates to try and sell the jewellery and to locate a “chop shop” to convert the car.

[10]      On 23 January items valued at over $12,000 were stolen from a residential property in Clarence Cox Crescent, Napier.

[11]      On 21 February Police were in contact with Mr Marfell in relation to an unrelated matter. Police searched Mr Marfell’s car and located jewellery confirmed as being stolen in the Guppy Road burglary.9 Police also located items stolen in the Clarence Cox burglary.

Facts relating to theft charge

[12]      On 7 February 2018 Mr Marfell was at Craig Hern Motors, Napier with an associate. Mr Marfell made his way around the car yard while his associate distracted a car salesman with loan paperwork. Mr Marfell entered into a garage closed to the public where the car keys are stored in a cabinet. The cabinet was unlocked at the time. Mr Marfell and his associate left the car yard. The manager noticed the keys to an unregistered Mazda Axela were missing. That evening Mr Marfell returned with an associate and cut the padlock which secured the gates to the car yard. Mr Marfell used the stolen key to gain entry to the Mazda and drove it from the yard, damaging another car in the process. The Mazda was located in a damaged state on 12 February 2018. Mr Marfell declined to comment.

Decision under appeal

[13]      Mr Marfell plead guilty to all charges. At sentencing, Judge Adeane first noted the sentencing was “dominated by” the consideration that Mr Marfell was only weeks out of prison from a previous sentence for burglary when he committed the most recent offences.10 His Honour took guidance from Arahanga v R as to the appropriate range.11 He adopted a starting point of two years with an uplift of 18 months for receiving “at this magnitude”, an uplift of six months for the previous convictions and an uplift of six months for possession of weapons. This resulted in a starting point of four years and six months imprisonment. Judge Adeane then discounted for guilty pleas and reached an end sentence of three years four months’ imprisonment.

9 See [8] above.

10     Police v Marfell, above n 1, at [3].

11     At [3]; and Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

The appeal

[14]      Mr Hawkins submitted Judge Adeane failed to give proper consideration to Mr Marfell’s personal circumstances and failed to give sufficient consideration to the sentencing purposes and principles. Mr Hawkins argued if measured consideration been given to these considerations the end sentence would not have exceeded three years imprisonment.

[15]      In  particular  Mr Hawkins  submitted  Judge  Adeane  failed   to   consider Mr Marfell’s explanation for possessing the offensive weapons namely, that he carried them for self-defence purposes following a gang-related incident.

[16]      Mr Marfell is a methamphetamine user and owed money to the Outlaws gang. In early 2018, the gang demanded repayment and threatened Mr Marfell and his family. In February 2018, Mr Marfell was kidnapped by three members of the gang and hospitalised with serious injuries.12

[17]      Mr Hawkins  also  argued  no  consideration  was  given  to  the  need  for  Mr Marfell’s rehabilitation.

[18]      For the respondent, Mr Stuart, disputed Mr Marfell’s contention he had the weapons for self-defence purposes. If the appellant had genuine grounds to believe he needed weapons for personal safety then, Mr Stuart submitted, he could have availed himself of the defence at a trial. Further, any genuine fear of attack would have passed by the time Mr Marfell was in possession of the weapons as two of his assailants had been remanded in custody and the third released on bail.

Approach to appeal

[19]      This appeal is governed by s 250 of the Criminal Procedure Act. I must allow the appeal if satisfied that:

12 Detective Senior Sergeant James, of Hawkes Bay Police swore an affidavit  regarding  the assistance to Authorities which Mr Marfell said he provided. Sergeant James alludes to this incident.

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[20]      Only if the error is material should the appellate court interfere. The focus is on the final sentence and whether the sentence imposed was in the available range, rather than the exact process by which it was reached.13

Decision

[21]      That Mr Marfell was carrying all of the weapons found in his possession for self-defence purposes is an assertion raised in mitigation of Mr Marfell’s offending but the point is not established one way or the other. Neither party sought a disputed fact hearing either before  the sentencing  Judge or  this  Court  on appeal.  While  Mr Marfell told the author of the pre-sentence report that he was only carrying the weapons for his personal safety, Mr Stuart relies particularly on the fact Mr Marfell made no statement to the Police about being kidnapped and assaulted and remained silent until he himself was arrested. I do not think that determines the point. There are many reasons why victims of gang violence may be unforthcoming and the fact the offenders were in custody when Mr Marfell was found with the weapons does not, in my view, strengthen the respondent’s position.

[22]      Rather, I do not consider that the overall sentence of three years and four months was excessive even accepting the mitigating factor Mr Marfell puts forward. I am not satisfied there was an error in the sentence imposed and that a different sentence should be imposed.

[23]      That is particularly so in light of Mr Marfell’s abandonment of the argument he was willing to give evidence for the Crown and was therefore entitled to some discount on the basis of assisting the authorities. As a result of the affidavit evidence to which I have  referred  that  ground  of  appeal  could  not  be  pursued.14  Detective Sergeant James’ evidence was that Mr Marfell provided no assistance at all

13     Ripia v R [2011] NZCA 101 at [15].

14     Referred to at n 12.

to the Police in its investigation and the charges against the defendants were withdrawn in the absence of a statement from Mr Marfell and due to evidential insufficiency.

[24]      As to the argument that Judge Adeane was obliged to impose the least restrictive outcome and he was in error in promoting deterrence and denunciation at the expense of rehabilitation of the appellant, the factors which would normally persuade a sentencing judge to reduce a sentence are not apparent here. Mr Marfell was 37 at the time of the most recent offending and the pre-sentence report expresses doubt as to the genuineness of his claimed commitment  to  reduced  drug  use.  Judge Adeane was entitled to regard as a dominant consideration that Mr Marfell was only weeks out of prison when he committed the offences and that, therefore, there was a real need for deterrence.

[25]      I find no error in the starting point, nor the uplift by six months to take account of Mr Marfell’s previous convictions, nor the uplift for the possession of weapons charges.   In light of the authorities which I have considered I tend to agree with    Mr Stuart’s submission that the starting point might even be regarded as generous.15

Result

[26]The appeal is dismissed.

Karen Clark J

Solicitors:

Bramwell Bate, Hastings for Appellant

Crown Solicitor’s Office, Napier for Respondent

15     Swinburne v R [2010] NZCA 568; and R v Sherlock [2008] NZCA 555.