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))

1. 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.

1. 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. 

2. 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

1. 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.

2. 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.

3. 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

1. 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 five months to account for the appellant’s remorse and rehabilitation efforts, and by a further 15 per cent for his pre-trial guilty plea.  That resulted in a final sentence of five years and ten months’ imprisonment.

Grounds of appeal

[4]R v Mako [2000] 2 NZLR 170 (CA).

1. In her comprehensive written submissions, Ms Vear submitted that the sentence is manifestly excessive because:

   (a)the starting point was too high;

   (b)the three-month uplift for the organised criminal group charge was inappropriate because a co-offender also sentenced by Andrews J was not treated similarly in response to his guilty plea to the same charge;

   (c)there was insufficient credit for rehabilitative efforts and remorse; and 

   (d)the credit for the guilty plea was insufficient.

2. It was argued on behalf of Mr Mark that disputed factual matters raised prior to sentencing were not resolved by the sentencing Judge.  Mr Mark’s position is that he was not involved with the planning of the robbery; that he became involved in the robbery only at the last minute; and that his involvement was initially reluctant.  Mr Mark also disputes that he detained patrons.  Instead, he says that he remained in the customer area of the TAB and did not threaten any patrons present.  Mr Mark now also denies any involvement in the planning of other criminal offending. 

Mr Mark’s challenge to the summary of facts

1. At the time Mr Mark entered his guilty pleas to the charges, counsel for the Crown informed Andrews J that a draft summary of facts had been prepared and would be finalised prior to sentencing.  The summary presented to the Court for the sentencing, when Mr Mark was represented by counsel (not Ms Vear), included the salient facts described above.[5]  Mr Mark’s then counsel did not seek a disputed facts hearing under s 24 of the Sentencing Act 2002, but Mr Mark’s comments about the offending were recorded in the pre-sentence report provided to the Court in the following terms:

   … while [Mr Mark] repeatedly stated he takes full responsibility for his behaviour, he denied certain elements of the Summary of Facts provided.  He denied any planning of the Aggravated Robbery and instead explained that the car that was taking him home had overheated near the TAB.  While they were waiting for the car to cool, Mr Mark explained that one of his co‑offenders suggested "getting money" from the TAB and produced the firearm from the rear of the vehicle.  Mr Mark claims he did not want to take part and attempted to convince his co-offenders out of the idea, but was eventually convinced.  He repeatedly stated that he had relapsed with his alcohol use that night and his intoxication affected his decision making.

   [5]At [4]–[6].

2. In the absence of a request for a disputed facts hearing, the Judge was entitled to rely on the summary of facts that, it seems, had been agreed between counsel.  The Judge had Mr Mark’s comments before her.  In any event, as the probation officer observed, Mr Mark did not deny that he played an active role in the common criminal enterprise.  Despite Mr Mark’s claim that he was not involved in planning other criminal activity, there was cogent information before the sentencing Judge, not challenged by his counsel, that justified his guilty plea to participating in an organised criminal group.

Discussion

1. Even if Mr Mark’s assertions about his reluctance and last minute involvement are accepted, he was instrumental in the detention of innocent members of the public who were forced to endure a terrifying ordeal during a serious armed robbery.  The emotional impact on the victims has been significant and long-lasting.  We are satisfied that the starting point adopted by the Judge was well within the tariff range available. 

2. Mr Mark had pleaded guilty to the charge of participation in an organised criminal group, and Andrews J was accordingly entitled to uplift the sentence of imprisonment by three months to reflect that separate offending.  It does not assist Mr Mark that a co-offender, a Mr Ward, may have escaped what would have been an appropriate penalty, and such disparity as there may be in the treatment of the two men does not reach the necessary threshold for remedy on appeal.[6]  Moreover, Mr Mark may consider himself fortunate that the Judge did not add a further uplift to reflect the need for additional deterrence, given what the probation officer accurately described as his extensive conviction history, which includes numerous offences involving dishonesty and violence.

   [6]Macfarlane v R [2012] NZCA 317 at [24].

3. The five month discount given for Mr Mark’s remorse and rehabilitative efforts was appropriate bearing in mind the probation officer’s assessment that he still represents a high risk of reoffending.  Mr Mark’s guilty plea came only five days before the trial. Although he faced other charges, which were eventually dropped, there was no reason why he could not have pleaded guilty to the aggravated robbery charge earlier.  The 15 per cent discount was appropriate in the circumstances.

4. The end sentence imposed was well within the range available to the Judge. 

Result

1. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent