Marsh v R - [2019] NZCA 220

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA732/2018
[2019] NZCA 220

BETWEEN	WIREMU KORI MARSH Appellant
AND	THE QUEEN Respondent

CA776/2018
BETWEEN	WADE ARMSTRONG Appellant
AND	THE QUEEN Respondent

Hearing:	27 May 2018
Court:	Collins, Peters and Mander JJ
Counsel:	G A Walsh for Appellant Marsh C D Bean for Appellant Armstrong M L Wong for Respondent
Judgment:	13 June 2019 at 2.30 pm

JUDGMENT OF THE COURT

A.Mr Marsh’s appeal against sentence is allowed. The sentence of four years and nine months’ imprisonment is quashed and substituted with a sentence of three years and six months’ imprisonment.
B.Mr Armstrong’s appeal against sentence is allowed. The sentence of five years’ imprisonment is quashed and substituted with a sentence of three years and nine months’ imprisonment.

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REASONS OF THE COURT

(Given by Mander J)

Wiremu Marsh and Wade Armstrong were sentenced respectively to four years and nine months’ imprisonment and five years’ imprisonment on one charge of aggravated robbery following their conviction by a jury.[1] Each appeals their sentence on the ground that it was manifestly excessive because the common starting point taken by the sentencing Judge was too high. Mr Armstrong also maintains a three month uplift to reflect his previous convictions was unwarranted.

Background

[1]R v Armstrong [2018] NZDC 24016.

The victim was a drug dealer. Mr Armstrong contacted the victim ostensibly for the purpose of purchasing drugs. He together with a female associate arrived at a residential complex where the victim was staying. The victim let Mr Armstrong and his female associate into the complex. There was conflicting evidence at trial regarding the narrative and sequence of events thereafter.
Judge K Saunders proceeded on the basis that while the victim and Mr Armstrong were discussing the sale of methamphetamine, the female associate went to the front door and let two men enter the building. Mr Marsh was one of those men. Thereafter, the victim, concerned at this turn of events, made his way to an apartment where his cousin and her partner resided. Mr Armstrong and Mr Marsh followed and entered the apartment.
Matters became tense. The cousin and her partner unsuccessfully attempted to get the appellants to leave. The situation became increasingly heated and, once it became clear the men would not go, the cousin and the partner left. The victim knew he was going to be robbed. Mr Armstrong stood over him with a clenched fist and threatened him. Half a gram of methamphetamine, $50 in cash, a small sports bag and a cell phone were taken by the appellants.
At sentencing, the appellants and the Crown urged the Judge to take varying views regarding the characterisation of the offending. The Crown submitted it was a premeditated robbery, in respect of which the drug deal had been used as a pretence to gain access to the residential complex. The appellants maintained it was simply a drug deal that had gone wrong after both men had been…

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 Marsh v R

Details

AGLC: Marsh v The Queen [2019] NZCA 220
Case: [2019] NZCA 220
Decision Date: 13 June 2019

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Wiremu Kori Marsh and Wade Armstrong appealed their sentences imposed by the sentencing Judge. Both appellants were convicted of aggravated robbery and received sentences of four years and nine months' imprisonment and five years' imprisonment, respectively. The appellants argued that the sentences were manifestly excessive, primarily due to the starting point being too high. Armstrong also argued that the three-month uplift for his previous convictions was unwarranted. The Court of Appeal was required to determine whether the starting point and the uplift for Armstrong's previous convictions were appropriate.

The Court of Appeal found that while the sentencing Judge was entitled to consider the premeditation and the home invasion elements of the offence, the starting point of four years and nine months' imprisonment was excessive. The Court noted that the property stolen had a limited value, and therefore a starting point of three and a half years' imprisonment would have more accurately reflected the seriousness of the offending. Regarding the uplift for Armstrong's previous convictions, the Court accepted that the sentencing Judge's decision was warranted, as Armstrong's history of violence and dishonesty demonstrated a high risk to the community. The Court held that there was no need to adjust the sentence to match the sentence imposed on Marsh, even if it may be viewed as somehow falling short of that which should have otherwise been imposed.

Wiremu Marsh's appeal against sentence was allowed. The sentence of four years and nine months' imprisonment was quashed and substituted with a sentence of three years and six months' imprisonment. Wade Armstrong's appeal against sentence was also allowed. The sentence of five years' imprisonment was quashed and substituted with a sentence of three years and nine months' imprisonment.

Orders