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…

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 Marfell v Police

Details

AGLC: Marfell v Police [2019] NZHC 368
Case: [2019] NZHC 368
Decision Date: 7 March 2019

CaseChat Overview and Summary

Stuart Bradley Marfell appeals his sentence of three years and four months imprisonment imposed by the District Court at Napier for various charges, including burglary, receiving stolen goods, theft, and possession of offensive weapons. The primary contention is that the sentence is manifestly excessive, particularly because the sentencing judge emphasised denunciation over rehabilitation. The legal issues in this case revolve around whether the District Court judge erred in determining the appropriate sentence by not sufficiently considering the mitigating factors, such as Marfell's alleged need for self-defence and his willingness to assist the authorities. The Court must also determine if the sentence imposed was materially erroneous and whether a different sentence should be imposed.

The Court examined the mitigating factors presented by Marfell's counsel, including his claim that he carried the offensive weapons for self-defence due to threats from the Outlaws gang and his alleged willingness to provide information to the authorities. The Court found that while these factors were raised in mitigation, they were not established as facts, and there was no requirement for a disputed fact hearing. Furthermore, the Court concluded that even if Marfell's claims were accepted, the overall sentence was not excessive. The Court also noted that Marfell's claim to assist the authorities was unsubstantiated, as there was no evidence that he provided any assistance. The Court found no error in the District Court judge's consideration of the sentencing purposes and principles, particularly the need for deterrence given Marfell's recent release from prison. The Court found the sentence to be within the appropriate range and dismissed the appeal.

The appeal is dismissed, and the original sentence of three years and four months imprisonment is upheld. The Court found no material error in the sentence imposed by the District Court judge.

Orders