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 celebrating and high-fiving other prisoners.

[10]All three victims were injured as a result of the group attack.

Mr Marsden’s criminal history

[11]      Mr Marsden is 27 years old. He has a criminal history spanning the period between 2013 and 2021. He has several previous convictions for violence. At the time of the offending, he was serving a sentence of imprisonment.

Decision under appeal

[12]      The District Court Judge considered that deterrence and denunciation were purposes at the forefront of sentencing given that the offending occurred in prison. With respect to the aggravating features of the offending and the case law, her

Honour adopted a starting point of three years’ imprisonment for the lead offence of injuring with intent to injure.4 Her Honour then uplifted that by ten months’ imprisonment to reflect the remaining two charges of assault with intent to injure. This resulted in an adjusted starting point of 46 months’ (or three years, ten months’) imprisonment.5

[13]      The learned Judge then turned to consider the appellant’s personal circumstances. She allowed a 15 per cent discount for his s 27 report and a full 25 per cent discount for his guilty pleas. This brought the total discount for the appellant’s personal mitigating circumstances to 40 per cent.

[14]      In applying the 40 per cent reduction to the adjusted starting point of 46 months, the Judge reached a figure of two years four months imprisonment. She  then uplifted this figure by six months for Mr Marsden’s relevant previous convictions.

[15]      Mathematically, this should have led to an end sentence of two years and ten months’ imprisonment. However, the Judge appears to have made an arithmetical error when formulating the end sentence:

[10] In respect of the charge of injuring with intent you are sentenced to three years’ imprisonment. On each of the charges of assault with intent to injure you are sentenced to 12 months’ imprisonment, that is concurrent, so you will serve a total term of three years’ imprisonment.

Legal principles

[16]      Mr Marsden has an appeal as of right under s 244 of the Criminal Procedure Act 2011 (CPA).6

[17]      Section 250 of the CPA sets out how a court is to determine a sentence appeal. An appeal must be allowed if the Court is satisfied that there is  an error in the imposed sentence and that a different sentence should be imposed.

4      R v Marsden, above 2, at [6].

5      R v Marsden, above 2, at [6].

6      Criminal Procedure Act 2011, s 244.

[18]      The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:7

[17]   … the standard of appellate review in sentence appeals ... requires   that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only that the sentencer enjoys an appropriate margin of appreciation.

[19]      In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply to appeals against sentence.8 The Court held that the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.9 A Judge on appeal should not intervene where the sentence imposed was within the range that could be properly justified by accepted sentencing principles.10

Analysis and decision

[20]      It is not in dispute that the Judge made a mathematical error and increased the sentence incorrectly by three months. I agree with the consensus. To that extent, the appeal should be allowed.

[21]      The critical issue is whether the Judge incorrectly applied the guilty plea discount requiring a further reduction in sentence.

[22]      

I find that the Judge correctly applied the guilty plea discount and there was no error in the methodology she adopted. In my view, she correctly applied all of the second-step uplifts and discounts by reference to the adjusted starting point (i.e. 46 months) and in accordance with the Court of Appeal decision Moses v R.11 It would have been contrary to the Moses methodology for the Judge to have added the aggravating features personal to the appellant to reach a further adjusted starting point of 52 months, as Mr de Groot’s calculation suggests.

7      Palmer v R [2016] NZCA 541 at [17] (footnotes omitted).

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

9      Tutakangahau v R, above n 8, at [36].

10     Tutakangahau v R, above n 8, at [36], citing Tutakangahau v R [2014] NZHC 556 at [10].

11     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

[23]      Successive, recent judgments of this Court have rejected the methodology on which Mr de Groot’s submission is based. As Johnstone J reasoned in Watene- Christie v New Zealand Police this would involve an alternative and impermissible three-step methodology.12 Mr de Groot’s calculation erroneously results in  an inflated adjusted starting point.

Result

[24]      To the extent of the mathematical error made by the District Court Judge the appeal is allowed.

[25]      In substitution for the sentence of three years’ imprisonment I find that an end sentence of two years and 10 months’ imprisonment is to be imposed.

Andrew J

12 Watene-Christie v New Zealand Police [2023] NZHC 2148. See also Mo’unga  v  R  [2023] NZHC 1967; Wong-Tung v R [2024] NZHC 473 at [21] and [22]; Nadan v Police [2024] NZHC 505 at [64] and [65].