Marzola v The Queen - [2014] NZCA 341

IN THE COURT OF APPEAL OF NEW ZEALAND

CA3/2014
[2014] NZCA 341

BETWEEN	JAMES RAYMOND MARZOLA Appellant
AND	THE QUEEN Respondent

Hearing:	10 June 2014
Court:	French, Venning and Mallon JJ
Counsel:	M Starling and L M Drummond for Appellant C A Harold for Respondent
Judgment:	23 July 2014 at 10.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Mr Marzola pleaded guilty to two charges of assault with intent to rob, two charges of offering to supply LSD and two charges of offering to supply cannabis to a person under 18 years of age.[1] He was sentenced in the High Court by MacKenzie J to six years and six months’ imprisonment with a minimum period of imprisonment of two years and nine months.[2] He appeals against his sentence on the ground that it is manifestly excessive. He also appeals against the imposition of a minimum period of imprisonment on the ground that no minimum period was justified.
[1]Crimes Act 1961, s 236(1)(c); Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a); and Misuse of Drugs Act, s 6(1)(d) and (2)(c).
[2]R v Ropitini [2012] NZHC 1927.
The appeal is out of time. It follows successful appeals by Mr Marzola’s co‑offenders.[3] Mr Marzola says that he promptly filed the notice of appeal after learning of the outcomes of the appeals by his co-accused and once he had the appropriate information. In the circumstances, we consider it appropriate to grant an extension of time. We so order.

The offending

The assaults with intent to rob

[3]Foster v R [2012] NZCA 575.

Mr Marzola and his co-offenders were involved in a plan to rob the complainants on the pretence of a drug transaction. A few days before the first incident, a co-offender, Mr Ropitini, met with one of the complainants, Mr Gordon, and discussed the possibility of supplying him with cannabis for $6,000. Mr Gordon contacted the other complainant, Mr Morris, who agreed to fund the transaction.
In the early hours of 9 February 2011, the two complainants travelled from Kaikoura to Blenheim to purchase the cannabis. There they were met by Mr Marzola and two other co-offenders. Mr Morris agreed to go with Mr Marzola and his co-offenders to another location to complete the deal. They stopped at a remote location where Mr Marzola threatened Mr Morris with a tyre iron and demanded the money. Mr Morris escaped by jumping down a hill and running into the bush and hiding. He sent a text message to Mr Gordon, who picked him up.
Later that day Mr Ropitini contacted Mr Gordon. He told Mr Gordon that he had nothing to do with the attempted robbery and that the drug deal could be completed in Kaikoura. As with the first attempted robbery, however, the plan remained to rob the complainants. For the purposes of carrying out the…

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 Marzola v The Queen

Details

AGLC: Marzola v The Queen [2014] NZCA 341
Case: [2014] NZCA 341
Decision Date: 23 July 2014 at 10.00 am

CaseChat Overview and Summary

James Raymond Marzola appealed against his sentence on the grounds that it was manifestly excessive and that the imposition of a minimum period of imprisonment was unjustified. The appeal was out of time, but followed successful appeals by Marzola's co-offenders. The Court of Appeal granted an extension of time for the appeal to be heard. The Court assessed the components of the sentence imposed by the High Court and concluded that none of the components were manifestly excessive. The starting point for the assaults with intent to rob was within the available range, as was the sentence for the drug offending. The allowance for the totality principle was generous and the uplift for personal aggravating factors was not excessive. The minimum period of imprisonment was justified because Marzola was older than his co-offenders and had not impressed the pre-sentence report writer with his potential. The appeal was dismissed.

The Court of Appeal granted the application for an extension of time to appeal and dismissed the appeal against the sentence. The Court of Appeal found that the sentence imposed by the High Court was not manifestly excessive and that the imposition of a minimum period of imprisonment was justified. The Court of Appeal's decision is final and binding on the parties. The appellant is not entitled to any further appeal against the sentence.

Orders