Marsh v The Queen - [2021] NZHC 123

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000042

[2021] NZHC 123

BETWEEN
PAUL-MICHAEL MARSH

Appellant

AND

THE QUEEN

Respondent

Hearing: 2 February 2021

Appearances:

A Stevens QC for Appellant C E R Power for Respondent

Judgment:

10 February 2021

JUDGMENT OF DOOGUE J

[1] On 30 October 2020 Judge Large, in the Dunedin District Court, sentenced the appellant Paul-Michael Marsh to five years and six months imprisonment. Mr Marsh was convicted after a defended hearing on charges of aggravated robbery, assault with a firearm and unlawful possession of a firearm.1

[2]Mr Marsh now appeals that sentence.

Background Facts

[3] On 21 December 2019 Mr Marsh went to a home in Dunedin occupied by Ms Mowat. Mr Marsh’s girlfriend also lived there along with Ms Mowat’s children. The victim was also at the address that day to sell some prescription medicine.

1 R v Marsh [2020] NZDC 23482.

MARSH v R [2021] NZHC 123 [10 February 2021]

[4] The victim and Ms Mowat were in discussion when Mr Marsh arrived and entered the same room wearing a hoodie, a cap and a balaclava. He brandished a sawn off .22 rifle.

[5] Mr Marsh said “remember me” and demanded the victim hand over his wallet and anything in his pockets. Mr Marsh told the victim he “was serious” and “not to muck around”. Mr Marsh then struck the victim with the butt of the firearm several times around his body and head, causing the victim to fall onto the bed. He punched the victim, then took a wallet, prescription pills and cash that had fallen from the victim’s pockets before leaving the address.

[6] The police were alerted to the robbery and soon afterwards stopped Mr Marsh in a vehicle near the address. The police found the victim’s wallet, cash and a cut down .22 rifle in the vehicle. He offered them a substantially different account of events.

Principles on Appeal

[7] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision:

“…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’.3

It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4 The focus of an appellate court must:

primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached.5

2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v…

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 The Queen

Details

AGLC: Marsh v The Queen [2021] NZHC 123
Case: [2021] NZHC 123
Decision Date: 10 February 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Paul-Michael Marsh appealed against his sentence of five years and six months imprisonment, imposed by Judge Large in the Dunedin District Court, for aggravated robbery, assault with a firearm, and unlawful possession of a firearm. The appellant argued that the sentencing judge had erred in failing to consider his diminished culpability, not being the instigator of the aggravated robbery, and in rigidly applying the guideline judgment of R v Mako, without considering the particular circumstances of the offending and the offender. The respondent submitted that there was no evidence to suggest that a third party had planned the robbery and that the gravity of the offending warranted imprisonment.

The court found that the sentencing judge was best placed to assess all the evidence and the veracity of the witnesses during the trial. The judge had decided that there was not enough evidence to find that a third party had planned the robbery, and it was for the judge to decide whether the evidence regarding Mr Marsh's culpability for the offending was diminished by any evidence that the offending was planned and instigated by a third party. The judge concluded that the extent of the violence and the aggravating factors relating to the offending were such that a sentence of imprisonment was the appropriate sentence. The court agreed with the sentencing judge that the gravity of the offending was such that imprisonment was the only appropriate outcome. The court also considered that a starting point of seven years' imprisonment was appropriate, an uplift of three months for the appellant's previous offending was appropriate, and a 23.5 per cent discount for the appellant's steps towards rehabilitation and the deprivation which influenced his culpability in this offending was warranted. The court concluded that there was no error in the judge's sentencing, and that imprisonment was the appropriate sentence. The appeal against sentence was dismissed.

Orders