Marsh v R - [2010] NZCA 445

IN THE COURT OF APPEAL OF NEW ZEALAND
CA316/2010
[2010] NZCA 445
BETWEENGARRON MARSH

Appellant

ANDTHE QUEEN

Respondent

Hearing:21 September 2010

Court:Arnold, Chisholm and Ronald Young JJ
Counsel:N C H Hewat for Appellant

N P Chisnall for Respondent

Judgment:27 September 2010 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
______________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]        Between November 2009 and March 2010 the appellant committed three burglaries and an attempted burglary of houses in Napier and Gisborne. He was on parole at the time of the burglaries and by March 2010 he had breached a release condition. In April 2010 he pleaded guilty to all of this offending. Judge Adeane sentenced him to three years, nine months’ imprisonment for the offending.[1]
[1]      R v Marsh DC Napier CRI-2009-041-4370, 29 April 2010.
[2]        In January 2010 a co-offender in the November burglary, Mr Ross, was sentenced to 18 months’ imprisonment for that single burglary. In this appeal the appellant complains about a claimed lack of parity between the appellant’s starting point of three years and six months’ imprisonment for the November burglary and Mr Ross’ starting point sentence of two years and three months’ imprisonment for the same offending. Further, the appellant says the Judge’s increase to the starting point for the offending to take account of aggravating features is too high.
Facts
[3]        In November 2009 the appellant, with Mr Ross and two others, drove to a house in Napier. The appellant went onto the property, forced open a set of French doors and entered the house. One other of the group also entered the house. Mr Ross was sentenced on the basis that it was not him who had entered the house.
[4]        Once inside a large amount of property valued at $90,000 was taken. The property was removed from the house and all of those present then helped load the property into the car. Further, one of the four offenders (not Mr Ross) stole a vehicle parked in the garage at the house.
[5]        On 20 March 2010 the appellant walked up to the front door of a house in Gisborne intending to burgle the house. The appellant was confronted by the owner and left. Later that evening the appellant went to the house next door and broke into the property through the garage. He took a television set and an I‑Pod valued at $2,820.
[6]        The next day the appellant went to another house in Gisborne and broke in forcing open French doors. Once inside he removed a television set and a computer and took the items outside to wait for an accomplice to pick him up. A silent security alarm had been triggered at the house and the appellant was apprehended shortly afterwards.
[7]        As to the breach of release conditions the appellant was released from prison in May 2009. As part of his release conditions he was obliged to live at an address in Napier. 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 Marsh v R

Details

AGLC: Marsh v R [2010] NZCA 445
Case: [2010] NZCA 445
Decision Date: 27 September 2010

CaseChat Overview and Summary

The case of Marsh v R involves the appellant, Garron Marsh, who was sentenced to three years and nine months' imprisonment for committing multiple burglaries and an attempted burglary, as well as breaching parole conditions. The Court of Appeal of New Zealand dismissed Marsh's appeal against his sentence, holding that there was no inappropriate disparity between the starting points of Marsh and his co-offender, Mr. Ross, for the November 2009 burglary, and that the uplifted starting point and final sentence for the November 2009 burglary were well within the range available to the Judge. The Court considered that Marsh had greater culpability than Mr. Ross, as Marsh had broken into and entered the property while Mr. Ross acted as a lookout. Furthermore, the Court found that the differences in the appellant's and the co-offender's criminal records and parole status justified the different starting sentences.

The primary legal issue before the Court was whether the starting point and final sentence imposed on the appellant for the November 2009 burglary were appropriate, taking into account the disparity with the sentence imposed on his co-offender, Mr. Ross, as well as the consideration of aggravating factors such as the appellant's criminal history and the fact that the Gisborne offending was committed while the appellant was on bail. The Court held that there was no inappropriate disparity between the starting points of the appellant and Mr. Ross for the November 2009 burglary, and that the uplifted starting point and final sentence for the November 2009 burglary were well within the range available to the Judge.

In reaching its decision, the Court of Appeal considered the respective roles of the appellant and his co-offender in the November 2009 burglary, as well as their respective criminal histories and parole statuses. The Court found that the appellant's greater culpability, as established by his primary role in the burglary and his more extensive criminal history, justified the higher starting point and final sentence imposed on him. Additionally, the Court found that the Judge had appropriately considered the aggravating factors, such as the appellant's criminal history and the fact that the Gisborne offending was committed while the appellant was on bail, when determining the appropriate sentence for the November 2009 burglary. As a result, the Court held that there was no basis to interfere with the sentence imposed by the trial Judge.

In conclusion, the Court of Appeal of New Zealand dismissed the appellant's appeal against his sentence, finding that there was no inappropriate disparity between the starting points of the appellant and his co-offender, and that the uplifted starting point and final sentence for the November 2009 burglary were well within the range available to the Judge. The Court considered the respective roles of the appellant and his co-offender in the November 2009 burglary, as well as their respective criminal histories and parole statuses, in reaching its decision.

Orders