Marsh v The Queen - [2019] NZHC 310

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-83

[2019] NZHC 310

DANNY MARSH

v

THE QUEEN

Hearing: 19 February 2019

Appearances:

J R Spelman for Appellant E M Light for Respondent

Judgment:

1 March 2019

JUDGMENT OF CLARK J

Introduction

[1] Following Mr Marsh’s guilty plea to one charge of aggravated robbery,1 Judge Tompkins sentenced Mr Marsh to four years and six months imprisonment.2

[2] Mr Marsh appeals his sentence. Mr Marsh says he was coerced into carrying out the robbery and the Judge erred in his assessment of this disputed fact under s 24 of the Sentencing Act 2002.3 A discount should have been afforded to reflect his reduced culpability. Secondly, Mr Marsh argues for a greater guilty plea credit as well as a reduction in his overall sentence (even without the disputed mitigating fact) to reflect his reduced level of premeditation and overall culpability.

1      Crimes Act 1961, s 235, maximum penalty 14 years imprisonment.
2      R v Marsh [2018] NZDC 16549 [Sentencing notes].
3      R v Marsh [2018] NZDC 27292 [Disputed fact decision].

MARSH v R [2019] NZHC 310 [1 March 2019]

Facts

[3] The charge of aggravated robbery arose from an incident on 6 June 2017 involving four defendants: Messrs Marsh, Daveron, Kirkwood and Moki. The following account is from the summary of facts which Mr Marsh accepted when he pleaded guilty.

[4] Mr Daveron was employed at the Sandbar Pub in Porirua. On 2 June he told the manager he could not work his shifts on 6 and 7 June 2016. Then, at 9.25 pm on 6 June, just prior to closing Mr Daveron arrived at the Sandbar. After speaking with staff, he left through the rear exit used only by staff and accessible using a pin code. Moments later Mr Kirkwood and Mr Marsh entered the pub through the rear staff exit. They forced an employee to open a safe and hand over money. The defendants also stole money from a till. Mr Marsh was armed with a black imitation pistol. While it seems Mr Marsh did not point the pistol directly at any of the persons who were closing the bar, he accepts he showed it to them.4

[5] Messrs Marsh, Daveron and Kirkwood then exited through the same rear door, and got into a Ford Fairmont driven by Mr Moki. The group travelled in the car to Moana Point in Porirua where Messrs Marsh, Daveron and Kirkwood got into a Ford Falcon. Police stopped the Falcon a short distance away. Police also located the Fairmont. Inside the Fairmont Police recovered an empty till and a black coloured pistol, later determined to be a BB-type gun.5 Messrs Moki and Mr Marsh refused to provide an explanation. Mr Kirkwood said it was not him and the Police had the wrong person. Mr Daveron said it was a set up and he had nothing to do with the robbery.

Sentence…

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 [2019] NZHC 310
Case: [2019] NZHC 310
Decision Date: 1 March 2019

CaseChat Overview and Summary

Danny Marsh appeals his sentence for aggravated robbery, arguing that the sentencing judge erred in not finding he was coerced into participating in the robbery and that this resulted in insufficient discount to his sentence. Marsh was sentenced to four years and six months in prison. The sentencing judge found that the Crown had disproven beyond reasonable doubt that Marsh had been compelled to participate in the robbery. Marsh argues that a discount should have been afforded to reflect his reduced culpability. The second ground of appeal is that the guilty plea credit should have been greater and the overall sentence reduced further. The appeal was heard by Clark J. The Court found that the sentencing judge did not provide adequate reasons for his decision that the Crown had disproven beyond reasonable doubt that Marsh had been compelled to participate in the robbery. The Court found that Marsh had presented as a credible witness and a reduction in sentence was warranted to reflect his reduced level of culpability. The appeal was allowed and Marsh was re-sentenced to a term of imprisonment of four years.

Orders