R v Mark - [2015] NZHC 1225

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-019-003858 [2015] NZHC 1225

THE QUEEN

v

DARREN JOSEPH MARK

Hearing: 4 June 2015

Appearances:

M J Robb for Crown
M N Sturm for Defendant

Judgment:

4 June 2015

SENTENCING NOTES OF ANDREWS J

R v MARK [2015] NZHC 1225 [4 June 2015]

Charges

[1] Mr Mark, you appear for sentencing today having pleaded guilty on 6 May

2015 on one charge of aggravated robbery, which carries a maximum penalty of 14 years’ imprisonment, and one charge of participation in an organised criminal group, for which the maximum sentence is ten years’ imprisonment.

Relevant facts

[2] You and a co-offender Mr Watts, who I sentenced earlier this morning, are both associated with the Westside Outlaws gang which is a street gang in Hamilton.

[3] Shortly before 10 o’clock on the night of 12 April 2014, you and Mr Watts, together with a third offender entered the Frankton TAB. You were all heavily disguised and wearing gloves. Mr Watts and the third offender were armed, Mr Watts with a knife, and the third offender with a rifle. It was a Saturday evening and, as you have just heard Mr Cunneen say, it was shortly after the end of a Chiefs game.

[4] At that time, there were two staff members present and there were patrons – members of the public – present. Mr Watts and the third offender jumped over the counter and demanded that the staff members open the safe. You remained in the customer area of the building and, while you were unarmed, you detained the patrons there.

[5] In the back of the shop, the staff area, the manager entered the combination to open the safe while explaining to the Mr Watts and the third offender that the safe would not open immediately because it had a time delay setting. At this point, the third offender pointed his rifle at the staff members. When one of them tried to push the gun away, there was a scuffle, the staff member was punched and subdued. The third offender then held his rifle against the staff member and pulled the trigger, but the rifle did not fire. Nor did it fire when the third offender pointed the rifle in the air and pulled the trigger.

[6] In the meantime, Mr Watts stole cash from the counter drawers and also took personal property from the manager. After your group became frustrated at the delay in opening the safe, you all fled through the front door. The amount taken from the TAB was around $3,200 and, as well, cash and a cellphone, together amounting in value about $1,500, was taken from the manager. None of the property taken has been recovered.

[7] This offending was planned by the group by text messages, and it relied on the use of a firearm which had earlier been stolen from a private address. The text messages reveal planning for other crimes which do not appear to…

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 R v Mark

Details

AGLC: R v Mark [2015] NZHC 1225
Case: [2015] NZHC 1225
Decision Date: 4 June 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of The Queen v Mark, Darren Joseph, involved the defendant, Mark, who pleaded guilty to charges of aggravated robbery and participation in an organised criminal group. The incident occurred on the night of April 12, 2014, at a Frankton TAB, where Mark, along with two co-offenders, executed a planned armed robbery. Mark and his accomplices, heavily disguised and armed, detained customers while demanding staff open the safe. The significant emotional and financial impact on the victims was highlighted in the court. The court assessed the defendant’s criminal history, his role in the crime, and mitigating factors such as his late guilty pleas and demonstrated remorse.

The legal issues before the court included determining the appropriate starting point for sentencing, considering factors such as the level of planning, the use of weapons, and the impact on victims, alongside the defendant’s personal circumstances and prior criminal conduct. The court deliberated on whether to impose a minimum term of imprisonment, taking into account the defendant's role and the need for deterrence.

The court concluded that the appropriate starting point for the aggravated robbery was seven years, adjusted by three months for the charge of participation in an organised criminal group. Mark’s late guilty pleas and remorse resulted in a 15% discount from the starting point, leading to a final sentence of five years and ten months for the aggravated robbery, to run concurrently with five months for the organised crime charge. The court decided against imposing a minimum term of imprisonment, leaving the decision of parole eligibility to the Parole Board.

Orders