The Queen v Marsh

[2008] NZCA 351

IN THE COURT OF APPEAL OF NEW ZEALAND

CA374/2008
[2008] NZCA 351

THE QUEEN

v

HAWEA JUNIOR MARSH

Hearing:25 August 2008

Court:O'Regan, Chisholm and Ronald Young JJ

Counsel:A Sharko for Appellant

T Epati for Crown

Judgment:8 September 2008 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chisholm J)

[1]       Having pleaded guilty to two counts of assault with a weapon (an axe), the appellant, aged 23 years, was sentenced by Judge Adeane in the District Court at Napier to two years imprisonment.  He appeals against that sentence on the grounds that it is manifestly excessive. 

[2]       The offending occurred in Napier on 30 September 2007.  While two police officers were in conversation with an associate of the appellant, the appellant, who was intoxicated, went into a house and re-appeared moments later with an axe.  He ran towards one of the constables with the axe above his right shoulder.  Fearing for his life, the constable ran and was chased by the appellant who swung the axe towards the constable several times.  Once the constable managed to put some distance between himself and the appellant, the appellant turned his attention to the other constable and chased him with the axe.  After the constable sought protection behind a parked vehicle one of the appellant’s associates managed to wrestle the axe from the appellant.  The appellant had to be subdued with pepper spray. 

[3]       When the appellant appeared before the Court he entered pleas of not guilty and was released on bail.  On 21 December 2007, while on bail and in an intoxicated state, he became enraged over missing money, hit one victim with the butt end of a bottle and then held a machete against the throat of a young woman.  When the police arrived the appellant resisted arrest. 

[4]       Having pleaded guilty to the offending on 21 December 2007, the appellant was sentenced by Judge Rea to six months imprisonment.  This sentencing, without a probation officer’s report, was at the appellant’s counsel, Mr Sharko’s, request.  It seems probable that full details of the offending on 30 September 2007 for which the appellant was awaiting trial were not brought to the attention of Judge Rea or considered by him.

[5]       After he had been sentenced by Judge Rea, and about a week before trial, the appellant changed his plea in relation to the offending against the two police officers to guilty.  When sentencing the appellant Judge Adeane noted that Judge Rea had not been fully informed about other offending and if he had known he would probably have adopted a different approach.  Judge Adeane considered that the safety of the community and safety of the police were important sentencing considerations and that imprisonment for two and a half years represented the appropriate starting point.  After allowing a 20% discount for the guilty plea, the sentence of two years imprisonment was imposed. 

[6]       Mr Sharko argued that Judge Adeane had been unduly influenced by the appellant’s subsequent offending in respect of which he had already been sentenced by Judge Rea.  We do not consider that Judge Adeane erred.  As this Court held in R v Barrett [1999] 1 NZLR 146 at 150, there can be circumstances where it would be unrealistic not to have regard to subsequent offending. This was such a situation. While the presumption of innocence precluded Judge Rea from taking the offending against the police officers into account, it is unrealistic to think that Judge Adeane had to ignore the fact that the appellant had subsequently offended in a similar manner while on bail for the offending in respect of which he was being sentenced.

[7]       In any event, even if the offending on bail had not been taken into account, we are perfectly satisfied that the sentence imposed by Judge Adeane was well within his discretion.  We do not accept Mr Sharko’s argument that the Judge failed to give proper weight to the fact that no injury was suffered by the police officers.  Understandably they both feared for their lives and it was fortuitous that they did not suffer serious injury or worse.  We also reject Mr Sharko’s contention that the Judge failed to give proper weight to the prospects of rehabilitation.  The appellant’s previous record includes violence and he has obviously failed to take advantage of the opportunities for rehabilitation that have been provided in the past.  Finally, contrary to Mr Sharko’s arguments, we consider that the sentence imposed by Judge Adeane was consistent with s 8(e) of the Sentencing Act 2002 and the authorities cited by Mr Sharko. 

Result

[8]       The appeal against sentence is dismissed. 

Solicitors:           
Crown Law Office, Wellington