Mark v The Queen - [2016] NZCA 22

IN THE COURT OF APPEAL OF NEW ZEALAND

CA359/2015
[2016] NZCA 22

BETWEEN	DARREN JOSEPH MARK Appellant
AND	THE QUEEN Respondent

Hearing:	11 February 2016
Court:	Miller, Fogarty and Toogood JJ
Counsel:	G H Vear and R M Gibbs for Appellant (granted leave to withdraw) Appellant in person I R Murray for Respondent
Judgment:	19 February 2016 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Toogood J))

In the High Court at Hamilton, Mr Mark pleaded guilty to one charge of aggravated robbery[1] and one charge of participating in an organised criminal group.[2] On 4 June 2015, Andrews J sentenced him to five years and ten months’ imprisonment.[3] He now appeals his sentence.

The conduct of the hearing in this Court

[1]Crimes Act 1961, ss 235(c) and 66(1); maximum penalty, 14 years’ imprisonment.

[2]Crimes Act, ss 98A and 66(1); maximum penalty, 10 years’ imprisonment.

[3]R v Mark [2015] NZHC 1225.

Shortly before the hearing of the appeal, Mr Mark dispensed with the services of his assigned counsel, Ms Vear, who was given leave to withdraw.
Mr Mark, who represented himself by audio-visual link, addressed the Court at the hearing in support of written material he had filed previously, challenging the Court’s jurisdiction. We had no difficulty reaching the conclusion that there was no merit in his largely incoherent submissions, so far as they were able to be understood. We proceeded to hear the appeal. In that regard, the Court had the benefit of Ms Vear’s helpful written submissions, which addressed all of the relevant arguments that were available to Mr Mark regarding the merits of the appeal.

The facts

The appellant and his two co-offenders were associated with a Hamilton street gang. The three conducted an armed robbery of the Frankton TAB. The appellant was not armed, but he knew that his co-offenders possessed a knife and a rifle between them.
After entering the TAB premises, the appellant stayed in the public area to control the patrons while his co-offenders sought money from the rear of the building. The co-offenders threatened the staff members with the gun. Twice, one of the offenders pointed the gun at staff members and pulled the trigger; both times, the gun did not fire. The appellant and his co-offenders left the premises having taken around $3,200 in cash and other items.
The offending was planned by text messages, and it relied on the use of a firearm that had earlier been stolen from a private address. The text messages revealed Mr Mark was involved in the planning of other crimes that did not appear to have come to fruition.

In the High Court

Andrews J drew analogies with the tariff case for aggravated robbery and concluded that the appropriate starting point was seven years’ imprisonment.[4] The Judge increased the starting point by three months to take account of the charge of participation in an organised criminal group. The sentence was then discounted by…

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 Mark v The Queen

Details

AGLC: Mark v The Queen [2016] NZCA 22
Case: [2016] NZCA 22
Decision Date: 19 February 2016 at 3.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Darren Joseph Mark appealed against his conviction and sentence imposed by the High Court at Hamilton. Mark was sentenced to five years and ten months' imprisonment for aggravated robbery and participating in an organised criminal group. The appeal against his sentence was heard by Miller, Fogarty, and Toogood JJ. Mark represented himself and challenged the Court’s jurisdiction. However, the Court found no merit in his submissions and proceeded to hear the appeal. The key issues were whether the starting point for the sentence was too high, the appropriateness of the uplift for the organised criminal group charge, the adequacy of the credit for remorse and rehabilitation, and the sufficiency of the credit for the guilty plea.

The Court of Appeal found that the starting point adopted by the Judge was well within the tariff range available. The Judge was entitled to uplift the sentence by three months to reflect the separate offending of participating in an organised criminal group. The five-month discount given for Mark’s remorse and rehabilitative efforts was appropriate, bearing in mind the probation officer’s assessment that he still represented a high risk of reoffending. The 15 per cent discount for the guilty plea was appropriate in the circumstances. The end sentence imposed was well within the range available to the Judge. The appeal was dismissed.

The final orders of the Court of Appeal were that the appeal is dismissed, and Mark is to remain in custody pending any further appeal to the New Zealand Supreme Court.

Orders