IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE	
CRI-2020-412-000042
[2021] NZHC 123	

BETWEEN	PAUL-MICHAEL MARSH
Appellant	
AND	THE QUEEN
Respondent	

Hearing:	2 February 2021	
Appearances:	A Stevens QC for Appellant C E R Power for Respondent	
Judgment:	10 February 2021	

JUDGMENT OF DOOGUE J

[1]	On 30 October 2020 Judge Large, in the Dunedin District Court, sentenced the appellant Paul-Michael Marsh to five years and six months imprisonment. Mr Marsh was convicted after a defended hearing on charges of aggravated robbery, assault with a firearm and unlawful possession of a firearm.1

[2]	Mr Marsh now appeals that sentence.

Background Facts

[3]	On 21 December 2019 Mr Marsh went to a home in Dunedin occupied by  Ms Mowat. Mr Marsh’s girlfriend also lived there along with Ms Mowat’s children. The victim was also at the address that day to sell some prescription medicine.

1 R v Marsh [2020] NZDC 23482.

MARSH v R [2021] NZHC 123 [10 February 2021]

[4]	The victim and Ms Mowat were in discussion when Mr Marsh arrived and entered the same room wearing a hoodie, a cap and a balaclava. He brandished a sawn off .22 rifle.

[5]	Mr Marsh said “remember me” and demanded the victim hand over his wallet and anything in his pockets. Mr Marsh told the victim he “was serious” and “not to muck around”. Mr Marsh then struck the victim with the butt of the firearm several times around his body and head, causing the victim to fall onto the bed. He punched the victim, then took a wallet, prescription pills and cash that had fallen from the victim’s pockets before leaving the address.

[6]	The police were alerted to the robbery and soon afterwards stopped Mr Marsh in a vehicle near the address. The police found the victim’s wallet, cash and a cut down .22 rifle in the vehicle. He offered them a substantially different account of events.

Principles on Appeal

[7]	Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision:

“…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’.3

It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4 The focus of an appellate court must:

primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached.5

2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
5 Skipper v R [2011] NZCA 250 at [28].

District Court Decision

[8]	The Judge identified the guideline judgment for the lead offence of aggravated robbery was R v Mako.6 The Judge identified the following aggravating factors from Mako as present in this case:

(a)	planning and premeditation;

(b)	the use of a disguise;

(c)	the use of a weapon;

(d)	the use of violence which caused injury;

(e)	the removal of property albeit of low value; and

(f)	the significant impact of the robbery on the victim.7

[9]	The Judge did not adopt the defence submission that a third party planned the robbery, therefore reducing Mr Marsh’s culpability, as he did not know who the instigator of the aggravated robbery was.

[10]	The Judge inferred from text messages between Ms Mowat and Mr Marsh that while “there was no specific set up” between them as to aggravated robbery, Ms Mowat was informing Mr Marsh of the victim’s movements and the fact he was bringing prescription medicine to sell at her address.

[11]	To account for the violence and aggravating factors of Mr Marsh’s offending the Judge adopted a starting point of seven years’ imprisonment with an uplift of three months for his previous offending.

[12]	The Judge reiterated that as Mr Marsh had maintained his not guilty pleas throughout there could be no credit in terms of Hessell v R.8 The Judge gave Mr Marsh

6 R v Mako [2000] 2 NZLR 170 (CA).
7 R v Marsh, above n 1, at [8] and [14]-[16].
8 Hessell v R [2010] NZSC 135, [2017] 1 NZLR 607.

a discount of three months for the remorse evident in his apology. He also gave him a discount of 15 months for Mr Marsh’s personal history outlined in the s 27 cultural report. The Judge acknowledged the many positive steps Mr Marsh had taken before this serious offending and provided an additional discount of three months in recognition of Mr Marsh’s efforts in this regard.

[13]	The Judge accepted there was a course available to Mr Marsh at He Waka Tapu but felt unable to impose a sentence of less than two years on the charges. This led to an end sentence of five years and six months’ imprisonment for the aggravated burglary charge.

[14]	The Judge sentenced Mr Marsh to two years’ imprisonment for the assault charge and 18 months’ imprisonment for the possession charge, to be served concurrently, and cancelled Mr Marsh’s community work sentence.

Appellant’s submissions

[15]	Mrs Stevens advanced three grounds of appeal. First, that the Judge had failed to take into account Mr Marsh’s diminished culpability as he was not the instigator of the aggravated robbery but simply the perpetrator.

[16]	Second, that the Judge rigidly applied Mako as if the effect of that decision was that imprisonment for this level of offending was mandatory, without sufficient regard to the particular circumstances of this offending and this offender. She observed that there is an injustice in this case because the Judge asked the presentence report writers to consider community-based alternatives. This, she said, raised an expectation in  Mr Marsh that at sentencing such options would be seriously contemplated by the Judge when it was clear at sentencing that the Judge did not countenance such possibilities at all.

[17]	Third, she submitted that the Judge ought to have kept Mr Marsh in the community by granting him home detention for the community’s longer-term benefit. She justified this by reference to the particular circumstances of the offending, the significant period during which Mr Marsh did not offend, his rehabilitative steps, his remorse and his commitment to reengage with further residential rehabilitation.

Respondent’s submissions

[18]	As to the first ground, Mr Power for the respondent submitted that there was no evidence to suggest Ms Mowat had instructed Mr Marsh to come to the house to rob the victim, nor that it was Ms Mowat’s plan and not Marsh’s. In addition, he submitted there was no evidence that Mr Marsh had been pressured by Ms Mowat to commit these offences because he wished to live in Ms Mowat’s house. He relied on the fact that none of these matters were put to Ms Mowat in cross examination before the Judge and ought not, therefore, to be contemplated by this Court.

[19]	As to the second ground, Mr Power submitted that the Judge did consider the particular circumstances of the offending and of Mr Marsh, and did consider the case authorities in a nuanced fashion before arriving at his decision. On this ground he also submitted that the mere fact that a Judge directs the pre-sentence report writer to make an assessment of an offender for a community-based sentence should not give rise to the notion that the end sentence will be community based. He added that the Judge did not initially make this request but did so at the urging of Mrs Stevens.

[20]	As to the third ground, Mr Power submitted that having regard to the particular circumstances of this offending, Mr Marsh’s personal circumstances, and a review of the relevant case authorities, the appropriate sentence was a sentence of imprisonment.

Discussion

[21]	As to the first ground, I do not accept Mrs Stevens’ submission that the District Court Judge should have taken into account the alleged role played by a third party in setting the starting point. I accept Mr Power’s submission that the third party was not cross examined on any of these assertions at trial. The Judge did analyse the texts on which Mrs Stevens relied for her propositions but decided he could not draw the same inferences.

[22]	The Judge was best placed to assess all the evidence and the veracity of the witnesses during the trial. It was for the Judge to decide whether the evidence regarding Mr Marsh’s culpability for the offending was diminished by any evidence

the offending was planned and instigated by a third party. The Judge made it clear he felt there was not enough evidence to make this finding.

[23]	I note that neither the District Court Judge nor I have placed weight on the level of premeditation or planning that Mr Marsh engaged in. The Judge made it clear he was sentencing Mr Marsh in his role as the perpetrator. I take a similar approach.

[24]	As to the second ground, the Judge did undertake an evaluation of the particular circumstances of the offending and concluded that the extent of the violence and the aggravating factors relating to the offending were such that a sentence of imprisonment was the appropriate sentence. I agree for the reasons that follow.

[25]	While it is unfortunate that Mr Marsh drew the inference that a community- based sentence was the likely outcome given that the Judge had directed the report writer to consider community-based sentences, the Judge did not err in imprisoning Mr Marsh. The gravity of the offending was such that imprisonment was the only appropriate outcome.

[26]	I have reviewed a number of relevant cases from which to assess whether or not the Judge’s starting point was appropriate or not. I now set them out.

[27]	Peke-Meihana v R: Mr Peke-Meihana and two other young men robbed a student flat in Palmerston North. Mr Peke-Meihana knew of the flat through a friend who had previously lived there. The robbers wore bandanas and two of them carried metal bars. Three of the four occupants were in the lounge. They were threatened, told to lie on the floor, not to look up, and to unlock and give their cell phones to the offenders. One of the victims looked up and was kicked in the head. The other victim had been in his bedroom. He was pushed up against a wall and threatened with a metal bar, before being told to lie on the floor with his flatmates. The offenders searched the house, taking two gaming consoles, three cell phones, two televisions, a laptop and a gold watch. As the offenders left, they told the victims they would return with a gun. Mallon J in the High Court considered a starting point of five years’ and six months’ imprisonment appropriate.9

9 Peke-Meihana v R [2019] NZHC 642.

[28]	Currie v R: After being invited inside, Mr Currie and his partner questioned the victim, who he knew, about what would happen to his possessions if he died. Mr Currie then left and returned with a shotgun. He hit the victims face with the gun, leaving him with a swollen eye and lacerations to his chin and cheek. Mr Currie then produced a piece of paper and instructed the victim to sign that he would gift his vehicle to him. Mr Currie told the victim if he went to the police Mr Currie would have him or his family killed or tell them the victim had raped his girlfriend. Mr Currie and his partner then left driving the victim’s vehicle. The Court of Appeal thought an eight-year starting point, with a two-year uplift for the number of charges and the aggravating features, was appropriate.10

[29]	Whittaker v R: Mr Whitaker entered the address of two victims aged 67 and 64, who he knew. He pointed a short-barrelled firearm at them and shouted at them to get money from the safe. He tapped the female victim on the chest with the barrel of the firearm as she backed away. She picked up her phone to call 111 and he shoved her arm, causing her to stumble and drop the phone. The male victim asserted there was no safe, so Mr Whittaker threatened to shoot him, presenting a small bullet. A struggle ensued, and Mr Whittaker stabbed the male’s hand with a screwdriver. The male said he only had $30 and went to remove it from his phone case. Mr Whittaker took the phone, $30 and the bank cards in the case. He successfully withdrew $65 from a bank card. For this aspect of his offending Gendall J thought a starting point of seven years’ imprisonment was appropriate.11

[30]	Waddington v R: Ms Waddington and two co-offenders went to an address where they had obtained methamphetamine in the past. One of the co-offenders attempted to discourage Ms Waddington from entering the house. She entered anyway because of a grudge and a desire to extort property. When she entered her two co- offenders threatened a male victim with a loaded firearm while Ms Waddington hit a female victim with a pair of pliers. The female victim suffered lasting injuries as a result of the attack, part of which was directed at her head. Eventually neighbours

10 Currie v R [2010] NZCA 449.
11 Whittaker v R [2019] NZHC 1227

arrived and the three offenders fled. The Court of Appeal thought a starting point of nine years’ imprisonment was appropriate.12

[31]	I consider the severity of this offending falls between that of Currie v R13 and Peke-Mehiana.14 In Peke-Meihana the occupants were similar in age to the offenders and outnumbered the offenders, the offenders had makeshift weapons, there was a home invasion, and the level of violence was low, as was the value of the property taken.15

[32]	Despite the fact there was no home invasion in this case, I accept Mr Power’s submission that this case was more serious than Peke-Meihana. Mr Marsh is not a young first offender, although I recognise despite his lengthy criminal record he has recently taken significant steps towards rehabilitation. The use of a firearm and actual moderate violence, including repeated strikes with a weapon and a wound to the head makes the offending significantly more serious.

[33]	In Currie v R there were no disguises, no home invasion and one victim. However, the eight year starting point was warranted by the use of the firearm, the significant violence, the value of the property and the multiple other charges the offender faced.16 By contrast, Mr Marsh’s offending was brief, the violence was more moderate, the value of the goods taken was significantly less, and Mr Marsh was the sole participant.

[34]	I therefore consider a starting point of seven years’ imprisonment was appropriate.

Uplift

[35]	Mr Marsh’s criminal history is significant, he has almost 100 previous convictions including violence, drug and burglary offending. While I acknowledge that Mr Marsh has taken meaningful steps to move towards a pro-social lifestyle, these

12 Waddington v R [2019] NZCA 440
13 Currie v R, above n 10.
14 Peke-Meihana v R, above n 9.
15 At [34] to [36].
16 Currie v R, above n 10.

previous convictions should be taken into account. An uplift of three months where there was a significant history of offending has been upheld as modest.17 I consider the Judge’s uplift appropriate.

Mitigating factors

[36]	The Judge provided a discount of 15 months (17 per cent) for matters in the cultural  report.  The  cultural  report  provides   a  comprehensive  background  of Mr Marsh’s upbringing and path to  offending.  I  have  no  doubt  the  deprivation Mr Marsh suffered influenced his culpability in this offending.

[37]	The cultural report also provides a comprehensive picture of the hard work Mr Marsh has done to address the source of his offending. He has tried to surround himself with pro-social influences and engaged with many programmes such as counselling, Whangaia Nga Pa Harakeke (Dunedin Family Harm) and other agencies.

[38]	I consider a 20 per cent discount is warranted to account for his steps towards rehabilitation and the deprivation which influenced his culpability in this offending.

[39]	Given the late letter of apology I consider the three-month (3.5 per cent) discount provided for this was generous. When he was stopped by police Mr Marsh offered the alternative story that the victim had pulled a pistol and threatened him. His apology only came after a trial where the complainant was cross-examined on the basis that he had the firearm.

[40]	Given Mr Marsh caused the 16-year-old victim to have to give evidence, I consider he was fortunate to receive any discount for remorse.

[41]	I would provide a discount of 23.5 per cent which leads to an end sentence of five years six months’ imprisonment.

17 Court-Clausen v R [2020] NZCA 488.

Conclusion

[42]	I agree with the Judge that this case is not one of the exceptions that warrants a sentence of Home Detention. The level of violence and use of a weapon elevate the serious nature of this offending into a category where home detention could not be considered an appropriate sentence.

[43]	Rehabilitation is an important factor to be considered in the sentencing process, and I would encourage Mr Marsh to seek programmes which will continue to facilitate his path to rehabilitation. However, based on the serious elements of this offending, rehabilitation cannot be the only purpose of sentencing; deterrence, denunciation and the protection of public safety must also feature significantly.

[44]	For all the reasons outlined above I conclude there was no error in the Judge’s sentencing and that that imprisonment was the appropriate sentence. I also find that his starting point, uplift and discounts were all appropriate in the circumstances of the case and could not be considered manifestly excessive.

Result

[45]	The appeal against sentence is dismissed.

Doogue J

Solicitors:
Anne Stevens QC, Dunedin RPB Law, Dunedin