Marsden v The King - [2024] NZHC 1391

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000139

[2024] NZHC 1391

UNDER Part 6, Criminal Procedure Act 2011

IN THE MATTER OF

First appeal against sentence

BETWEEN

CHARLES WAAKA MARSDEN

Appellant

AND

THE KING

Respondent

Hearing: 20 May 2024

Appearances:

H G de Groot for Appellant R H Vercoe for Respondent

Judgment:

29 May 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 29 May 2024 at 4.00 pm
pursuant to r 11.5 of the High Court Rules 2016.

Registrar / Deputy Registrar

Date ………………………….

MARSDEN v R [2024] NZHC 1391 [29 May 2024]

Introduction

[1]This is an appeal against sentence.

[2] In the District Court, the appellant, Mr Charles Marsden, pleaded guilty to the following charges:

(a)One charge of injuring with intent to injure;1 and

(b)Two charges of assault with intent to injure.2

[3]On 14 February 2024, the District Court Judge sentenced Mr Marsden to

three years’ imprisonment.3 In challenging that decision, Mr Marsden contends:

(a)The Judge made a mathematical error and increased the sentence incorrectly by three months; and

(b)The Judge incorrectly applied the guilty plea discount which, it is contended, requires a further reduction in the sentence.

[4]Mr Marsden submits that these errors require a substituted sentence of two

years seven months’ imprisonment.

[5] The respondent accepts that there was a mathematical error in the calculation of the end sentence and that the correct end sentence should have been two years ten months’ imprisonment. However, it submits that the guilty plea discount allowed by the Judge was correct. The Crown’s position is that the appeal should be allowed only to the extent required to correct the mathematical error.

1      Crimes Act 1961, ss 66(1) and 189(2); maximum penalty five years’ imprisonment.
2      Crimes Act 1961, ss 66(1) and 193; maximum penalty three years’ imprisonment.
3      R v Marsden [2024] NZDC 3199.

Factual background

[6] Mr Marsden and his four co-defendants were all remanded in custody in the same unit of the Auckland South Corrections Facility. The three victims were Corrections officers.

[7] Mr Marsden and his co-defendants engaged in an unprovoked group attack on the Corrections officers. The attack was concerted and deliberate, with Mr Marsden and his co-defendants working together and deliberately surrounding the officers before attacking them from multiple angles. The officers were at times attacked from behind, with multiple blows being delivered to the back of their heads and kidneys.

[8] The attack lasted for one minute and 23 seconds, and in total around 100 strikes were delivered from the group to the victims. These strikes were a mixture of punches and kicks aimed at the victims’ heads, faces and bodies. During the course of the assault, the group yelled Killer Beez gang slogans.

[9] The assault ended when the one of the Corrections officers was able to use their pepper spray. The appellant and the co-defendants returned to stand with the remaining prisoners in the unit and began…

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 Marsden v The King

Details

AGLC: Marsden v The King [2024] NZHC 1391
Case: [2024] NZHC 1391
Decision Date: 29 May 2024

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal against sentence by Charles Marsden against The King. Marsden had pleaded guilty to injuring with intent to injure and two charges of assault with intent to injure, committed against Corrections officers in an Auckland prison. The District Court sentenced Marsden to three years' imprisonment, but Marsden argued that this sentence was incorrect due to a mathematical error and an incorrect application of the guilty plea discount. Marsden sought a sentence of two years and seven months' imprisonment. The Crown conceded that there was a mathematical error but maintained that the guilty plea discount was correctly applied. The High Court was tasked with determining whether the District Court's sentence contained errors that warranted a substitute sentence.

The Court found that there was indeed a mathematical error in the District Court's sentence calculation. However, the Court ruled that the District Court's application of the guilty plea discount was correct. The Court relied on the principles established in Moses v R, which outlined the two-step methodology for applying discounts and uplifts to the starting point in sentencing. The Court rejected the alternative three-step methodology suggested by Marsden's counsel, finding it to be impermissible and resulting in an inflated starting point.

Justice Andrew concluded that the appeal should be allowed to correct the mathematical error but not to adjust the sentence further. The Court substituted the incorrect sentence of three years' imprisonment with a corrected sentence of two years and ten months' imprisonment. This decision adhered to the principle that an appellate court will only intervene if the sentence imposed is outside the range available to the sentencing judge and if there is a material error in the sentence calculation.

Final orders: The sentence of three years' imprisonment is set aside. In substitution, Charles Marsden is sentenced to two years and ten months' imprisonment.

Orders