Marshall v Police - [2012] NZHC 2739

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000203 [2012] NZHC 2739

BETWEEN TEWIKI MARSHALL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 9 October 2012

Appearances: P J B Winter for Appellant
E M Fitzherbert for Respondent

Judgment: 18 October 2012

JUDGMENT OF DUFFY J [Re Appeal Against Sentence]

This judgment was delivered by Justice Duffy on
18 October 2012 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140
Copy to:
P J B Winter, PO Box 105495, Auckland 1143 (DX CP 23517, Auckland)

MARSHALL V NEW ZEALAND POLICE HC AK CRI-2011-404-000203 [18 October 2012]

[1] The appellant, Tewiki Marshall, was sentenced in the District Court at Waitakere following the entry of guilty pleas to charges of unlawful possession of a firearm; possession of less than one gram in total of the class A controlled drug methamphetamine; smoking a class C controlled drug, namely cannabis, and breach of prison release conditions. Mr Marshall was sentenced to 22 months’ imprisonment on the firearms charge; with concurrent sentences of three months’ imprisonment on the charges under the Misuse of Drugs Act 1975. On the remaining charge of breach of release conditions he was convicted and discharged. He now appeals against the sentences imposed on the firearms and drug offending.

[2] I will deal with each offence in order of seriousness.

Firearm offending

[3] The police summary of facts outlined the offending in this way. On 11 March

2012, a friend of Mr Marshall received a text from a member of the Mongrel Mob stating that he was going to “hit” Mr Marshall and his family that night. The friend went to Mr Marshall’s home and shortly afterwards Mr Marshall and his family left the address. The summary of facts then states that Mr Marshall went to his garage and retrieved a pump action shotgun that he had acquired three days before. It is not clear from the summary of facts whether Mr Marshall took these steps before leaving his home with his family, or whether he returned to his home at a later time and took these steps. The summary of facts goes on to state that Mr Marshall took the firearm and buried it under some mulch in the backyard. The summary of facts records that when Mr Marshall was questioned by the police, he spoke openly about the firearm and the problems he was having with the Mongrel Mob. In explanation for having the firearm, he said that he wanted to protect his family; that the man who had threatened him was dangerous and that no harm was meant towards anyone else, except if his family’s safety became an issue.

[4] During the course of the appeal hearing, counsel for the respondent very responsibly and properly drew my attention to the fact that when the police searched Mr Marshall’s property, they did not find the firearms. The respondent accepts that it…

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 Marshall v Police

Details

AGLC: Marshall v Police [2012] NZHC 2739
Case: [2012] NZHC 2739
Decision Date: 18 October 2012

CaseChat Overview and Summary

Tewiki Marshall appeals against the sentences imposed on him in the District Court for unlawful possession of a firearm, possession of methamphetamine, smoking cannabis, and breaching prison release conditions. The District Court Judge sentenced Mr Marshall to 22 months' imprisonment on the firearms charge, with concurrent sentences of three months' imprisonment on the drug charges. He was convicted and discharged for breaching his prison release conditions. The primary legal issues the court had to decide were whether the starting point and uplift for the firearm charge were appropriately determined, whether the sentences for the drug charges were correctly imposed, and whether the total sentence was manifestly excessive. The court found that the District Court Judge had improperly relied on prejudicial material not contained in the agreed summary of facts, leading to an incorrect starting point and uplift for the firearm charge. The court also found that the drug charges should have been sentenced cumulatively, not concurrently. The court concluded that the total sentence imposed by the District Court was manifestly excessive due to these errors. Therefore, the sentences imposed by the District Court were quashed, and Mr Marshall was re-sentenced to 16 months' imprisonment for the firearm charge, three months' imprisonment for the methamphetamine charge, one month's imprisonment for the cannabis charge, and a conviction and discharge for breaching prison release conditions.

Orders