R v Marshall - [2024] NZHC 3462

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-092-004672

[2024] NZHC 3462

THE KING

v

KEVIN NICHOLAS MARSHALL

Hearing: 19 November 2024

Appearances:

S Bicknell for Crown

M B Mortimer for Defendant

Sentence:

19 November 2024

SENTENCING REMARKS OF LANG J

Solicitors/counsel:
Crown Solicitor, Manukau M B Mortimer, Auckland

R v MARSHALL [2024] NZHC 3462 [19 November 2024]

[1] Mr Marshall, you appear for sentence having pleaded guilty to charges of attempted murder,1 being in possession of an offensive weapon2 and assaulting a female.3 The maximum penalty on the charge of attempted murder is 14 years imprisonment whilst the maximum sentences on the other two charges are three and two years imprisonment respectively.

Factual background

[2] The charges were laid as a result of two separate incidents, the first of which occurred on 26 September 2022. This resulted in the charges of being in possession of an offensive weapon and assaulting a female. The second incident occurred on 27 March 2024, and resulted in the charge of attempted murder. In both incidents the victim of the offending was your former partner, with whom you had been in a relationship for approximately nine months. You had separated in or about June 2022.

The incident on 26 September 2022

[3] In September 2022, your former partner was living in South Auckland but she rented a property in another town that she used to store some of her belongings. On the afternoon of 26 September 2022, she went to this property to collect some items from it. She was accompanied to the address by her 10-year-old son.

[4] You arrived at the address whilst your former partner was there and entered the house. You began throwing her belongings outside the address and telling her she needed to leave. She refused to leave and continued to collect her belongings as she was entitled to do. You then grabbed a machete, held it up in the air and told her you were going to cut her throat with it. You also said you would cut anyone else that tried to stop you. This incident led to the charge of being in possession of an offensive weapon.

[5] Your former partner and her son then went outside the address, and you put the machete back in your vehicle. She then went to re-enter the house and, as she did so,

1      Crimes Act 1961, s 173 — maximum penalty of 14 years imprisonment.
2      Section 202A(4)(b) — maximum penalty of three years imprisonment.
3      Section 194(b) — maximum penalty of two years imprisonment.

you punched her once in the eye with a closed fist. This led to the charge of assaulting a female.

[6] Your partner’s son then ran to a neighbour’s address and called the police. When the police arrived, they found a machete under the driver’s seat in your vehicle. When the police spoke to you, you denied hitting your former partner and said…

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 Marshall

Details

AGLC: R v Marshall [2024] NZHC 3462
Case: [2024] NZHC 3462
Decision Date: 19 November 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of R v Marshall concerns a defendant, Kevin Nicholas Marshall, who pleaded guilty to charges of attempted murder, being in possession of an offensive weapon, and assaulting a female. The court, presided over by Lang J, was tasked with determining an appropriate sentence for these serious offences. The key legal issues included the selection of an appropriate starting point for the most serious charge, the application of any uplifts or discounts based on the nature of the offences and the defendant's background, and the imposition of a minimum term of imprisonment where necessary.

The court first considered the appropriate starting point for the charge of attempted murder, which the Crown argued should be 11 years imprisonment due to the presence of multiple aggravating factors, including the defendant's prior history of violence against partners and the use of a lethal weapon. The court agreed, noting that the defendant's motivation to prevent his former partner from testifying against him further elevated the seriousness of the offence. The court then applied an uplift of six months to account for the remaining charges, resulting in a total of 11 and a half years before considering any aggravating or mitigating factors.

Aggravating factors considered included the defendant's criminal history and the fact that the attempted murder occurred while he was on electronically monitored bail for earlier charges. These factors led to an additional uplift of eight months. Mitigating factors included the defendant's guilty pleas and his willingness to engage in rehabilitative efforts, which resulted in a discount of two years and nine months. The court declined to give further credit for remorse or mental health issues, resulting in a final sentence of nine years imprisonment for the charge of attempted murder, with a minimum term of four years and six months before eligibility for parole. The sentences for the other charges were two months each, to be served concurrently.

The court's final orders were that the defendant be sentenced to nine years imprisonment for attempted murder, with a minimum term of four years and six months before parole eligibility, and two months imprisonment for each of the other charges, to be served concurrently.

Orders