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Marsh v R [2019] NZHC 310 (1 March 2019)

Last Updated: 14 March 2019

JUDGMENT OF CLARK J

Introduction

[1] Following Mr Marsh’s guilty plea to one charge of aggravated robbery,¹ Judge Tompkins sentenced Mr Marsh to four years and six months imprisonment.²

[2] Mr Marsh appeals his sentence. Mr Marsh says he was coerced into carrying out the robbery and the Judge erred in his assessment of this disputed fact under s 24 of the Sentencing Act 2002.³ A discount should have been afforded to reflect his reduced culpability. Secondly, Mr Marsh argues for a greater guilty plea credit as well as a reduction in his overall sentence (even without the disputed mitigating fact) to reflect his reduced level of premeditation and overall culpability.

¹ Crimes Act 1961, s 235, maximum penalty 14 years imprisonment.

² R v Marsh [2018] NZDC 16549 [Sentencing notes].

³ R v Marsh [2018] NZDC 27292 [Disputed fact decision].

MARSH v R [2019] NZHC 310 [1 March 2019]

Facts

[3] The charge of aggravated robbery arose from an incident on 6 June 2017 involving four defendants: Messrs Marsh, Daveron, Kirkwood and Moki. The following account is from the summary of facts which Mr Marsh accepted when he pleaded guilty.

[4] Mr Daveron was employed at the Sandbar Pub in Porirua. On 2 June he told the manager he could not work his shifts on 6 and 7 June 2016. Then, at 9.25 pm on 6 June, just prior to closing Mr Daveron arrived at the Sandbar. After speaking with staff, he left through the rear exit used only by staff and accessible using a pin code. Moments later Mr Kirkwood and Mr Marsh entered the pub through the rear staff exit. They forced an employee to open a safe and hand over money. The defendants also stole money from a till. Mr Marsh was armed with a black imitation pistol. While it seems Mr Marsh did not point the pistol directly at any of the persons who were closing the bar, he accepts he showed it to them.⁴

[5] Messrs Marsh, Daveron and Kirkwood then exited through the same rear door, and got into a Ford Fairmont driven by Mr Moki. The group travelled in the car to Moana Point in Porirua where Messrs Marsh, Daveron and Kirkwood got into a Ford Falcon. Police stopped the Falcon a short distance away. Police also located the Fairmont. Inside the Fairmont Police recovered an empty till and a black coloured pistol, later determined to be a BB-type gun.⁵ Messrs Moki and Mr Marsh refused to provide an explanation. Mr Kirkwood said it was not him and the Police had the wrong person. Mr Daveron said it was a set up and he had nothing to do with the robbery.

Sentence indication

[6] On 15 March 2018 Judge Tompkins gave sentence indications to Mr Marsh and Mr Daveron. If the defendants pleaded guilty at the time of the sentence indication Judge Tompkins would have sentenced them on the basis of the same six-year starting point applied to Mr Kirkwood and Mr Moki, less a 15 per cent discount for a guilty

⁴ At [3].

⁵ At [3].

plea with the potential for further discount depending on pre-sentence reports and subject to the outcome of any disputed fact hearing with respect to the duress or compulsion or coercion Mr Marsh asserted.

The disputed fact hearing and decision

[7] Mr Marsh had raised in mitigation of his offending that he had no choice but to be involved. Accordingly, a hearing under s 24 of the Sentencing Act was held for the purpose of determining that disputed fact. At the hearing there was an initial dispute between counsel as to whether duress or compulsion or coercion fell within the ambit of s 24(2)(c) of the Sentencing Act and was thus to be negated by the Crown beyond reasonable doubt, or whether it fell within the ambit of s 24(2)(d) as a disputed mitigating fact to be proved by Mr Marsh to the lesser standard of “balance of probabilities.” Judge Tompkins took the view the existence or otherwise of coercion or duress is a matter properly falling within s 24(2)(c).⁶ Approaching the matter on that basis the issue was whether the Crown had negated beyond a reasonable doubt the mitigating fact raised by the defence.⁷

[8] Judge Tompkins recorded the following arguments that were advanced on behalf of Mr Marsh:

(a) On 6 June 2016 Mr Marsh was returning a car with a faulty alternator he had been repairing to an address in Porirua. The car belonged to a member of the Mongrel Mob known to Mr Marsh as Robin. Mr Marsh had been unable to purchase the necessary part to repair the alternator because Robin had not paid him.

(b) Mr Marsh was being followed by his son in another vehicle, the intention being that once Mr Marsh delivered the vehicle to its owner he would travel back home with his son.⁸

(c) Mr Marsh drove to the address he had been given where he was to drop

⁶ Disputed fact decision, above n 3, at [13].

⁷ At [14].

⁸ At [15].

off the car. When he arrived two Mongrel Mob members jumped in the car with him, one in the back and another in the passenger seat. Mr Marsh did not know them at the time but came to know it was Mr Moki who entered the passenger side of the car.⁹

(d) Judge Tompkins records Mr Marsh’s evidence that he was prevailed upon by Mr Moki —¹⁰

... to participate in the robbery by, first, striking him on the back of his head with some implement or other, causing a cut to the head which bled to an extent, and by telling Mr Marsh that he (Mr Moki) had a person or persons outside Mr Marsh’s mother’s address, conveying the unavoidable implication that if Mr Marsh did not co-operate, physical harm would come to Mr Marsh’s mother. Thereafter, Mr Marsh says, he decided that he would do as he was told so he “just did it,” primarily because of fear for his mother’s safety.

(e) Mr Marsh’s evidence at the hearing was that given how Mr Moki looked and the nature of him he “knew something, some skulduggery was going to be going on”.¹¹ Mr Marsh said he tried to bail out of it. He said he did not want anything to do with it because he had just got out of jail and he did not want to go back to jail for anything. He then got a smack in the back of the head by Mr Moki who said “you’re gonna do as you’re fuckin told ‘cos I got someone sitting outside your mum’s house”. Mr Marsh said he did not know what was being planned but he could tell it “wasn’t good”.

(f) Mr Marsh said he just took the crack in the head because he was worried about his son travelling in the car behind. He described his head bleeding and wiping the blood on his clothes. Mr Marsh’s long-sleeved Kia Kaha shirt was produced as an exhibit. Mr Marsh said the blood was not running, but he was wiping it off.

(g) Mr Marsh then drove to a gas station. Judge Tompkins records that

⁹ This detail, from the Notes of Evidence at 7.

¹⁰ Disputed fact decision, above n 3, at [16].

¹¹ Notes of Evidence at 7.

Mr Moki, having delivered his threats, exited the vehicle and got into a second car.¹²

(h) At the gas station Mr Marsh deliberately stalled the car “so that maybe they could have pulled out of it” but (as Judge Tompkins put it) Mr Moki conveyed to Mr Marsh the importance of restarting the vehicle which they managed by way of a jump start from someone else at the petrol station.¹³

(i) At the direction of Mr Kirkwood, who was still seated in the back of the car, Mr Marsh drove to the Sandbar. When they arrived Mr Kirkwood passed Mr Marsh a mask and the pistol. Mr Marsh in evidence recalled he said:¹⁴

“Fuck this. Fuck this shit. Fuck, I ain’t doing this fuckin shit” but ... oh fuck, it was too late and I just kept thinking about my old lady. We were there.

(j) Judge Tompkins records Mr Marsh’s protest but Mr Kirkwood saying to him “This is how it is,” so Mr Marsh said he “just sucked it up and did it”.¹⁵

(k) When Mr Marsh and Mr Kirkwood went into the Sandbar Mr Marsh had put on another hoodie but was not using the mask he had been handed. Mr Marsh showed the pistol to the person counting the money, they took the money, exited the premises and Mr Marsh, who was the getaway driver, said he nearly hit Mr Moki’s car as they drove off.¹⁶ The car they were in at this point was the car Mr Marsh had been trying to fix. It was left running. In describing a near collision with Mr Moki who was in another car, Mr Marsh said he did not know he was there. There were others in the car with Mr Moki but Mr Marsh said he did

¹² Disputed fact decision, above n 3, at [17].

¹³ Notes of evidence p 10; and Disputed fact decision at [18].

¹⁴ Note of evidence at 12.

¹⁵ Disputed fact decision, above n 3, at [19].

¹⁶ At [20].

not know who they were.¹⁷

(l) Mr Marsh and Mr Kirkwood drove towards the beach past Plimmerton when the car stalled again. Mr Moki drove up in the second vehicle and hopped into the back of Mr Marsh’s car and told Mr Marsh to drive. The three men (Messrs Marsh, Moki and Kirkwood) started to drive back towards Porirua but that car broke down. Mr Moki got into the driver’s seat on the basis that he knew what was wrong with the car and could start it. Mr Marsh got into the backseat but before the vehicle could be restarted the police arrived.¹⁸

(m) At the disputed fact hearing Ms Hall, for Mr Marsh, relied on a number of recorded transcripts of Mr Marsh’s subsequent calls from the remand wing at Rimutaka. Ms Hall submitted the calls both supported Mr Marsh’s account that he had no choice but to participate in the aggravated robbery and also reinforced that at that point, because of his fear of physical retribution from the Mongrel Mob, Mr Marsh was not making any kind of statement to the police.¹⁹

[9] For the Crown, Ms Light referred Judge Tompkins to another recorded telephone call between Mr Marsh and Robin both addressing each other in relatively affectionate terms indicating, it was submitted, their joint membership of the Mongrel Mob. Ms Light also stressed at the disputed fact hearing the opportunities, even on Mr Marsh’s account, that Mr Marsh had to avoid active participation in the robbery. He could have departed from his associates at a number of stages during the unfolding of events that led to the robbery.²⁰

[10] Judge Tompkins then mentioned some of the propositions put to Mr Marsh in cross-examination:²¹ that he knew what was going to happen throughout and that he had taken the precaution of dressing in a number of layers of clothing for that reason;

¹⁷ Notes of evidence p 13.

¹⁸ Disputed fact decision, above n 3, at [20] and Notes of Evidence at 13.

¹⁹ Disputed fact decision, above n 3, at [21].

²⁰ At [22].

²¹ At [23].

that he had never been hit by Mr Moki and that he did not, at least initially, take the opportunity to tell the story he now tells to police.

[11] Finally, Judge Tompkins referred to Ms Hall’s submission that if Mr Marsh was subject to coercive threats to his safety and the safety of his family the coercive effect would operate throughout the robbery and when Mr Marsh had been remanded in custody.²²

[12] The Judge then reached the following conclusions:²³

[25] Having heard Mr Marsh give his account and considering that in the context of the other evidence that is available, particularly the undisputed evidence that it was Mr Marsh who took the pistol into the Sandbar Pub and showed it to the occupants before departing with the cash and then transferring the vehicle to the second vehicle involved, whilst I accept that there may have been a degree of persuasion exercised by Mr Marsh’s co-defendants for him to participate in the planned aggravated robbery, I consider that the Crown has negated beyond a reasonable doubt that Mr Moki compelled Mr Marsh, in the way Mr Marsh now asserts, to participate in the robbery in the way he did, and that if it had not been for Mr Moki’s asserted physical assault to the back of his head and explicit threats to the safety of his mother, Mr Marsh would not have actively participated in the aggravated robbery in the way he did.

[26] It is clear from the evidence that is available to the Court – and I acknowledge that there has not been a trial – that but that once the three defendants left the second address that Mr Marsh took the car to that day and travelled first to the service station, then restarted the vehicle and travelled to the Sandbar and then, after the robbery, travelled to Moana Point, where they swapped vehicles and then departed in the second vehicle, that Mr Marsh was a willing participant throughout.

[13] I will return to the passages which I have emphasised.

Sentence

[14] At sentencing on 8 August 2018 Judge Tompkins referred to the disputed fact hearing and said: “... although I rejected any duress I accepted that there, ‘[m]ay have been a degree of persuasion’”.²⁴ Ultimately, the Judge was not persuaded that either Mr Daveron or Mr Marsh should be treated differently from Mr Kirkwood or Mr Moki. Recognising their guilty pleas had inevitably been for a variety of reasons

²² At [24].

²³ At [25].

²⁴ Sentencing notes, above n 2, at [8].

at different stages in the process he did not consider the factors identified by Mr Marsh (or Mr Daveron) were sufficient to warrant a departure from the parity principle. “The level of culpability of all four who contributed to this aggravated robbery whilst fulfilling different roles was overall the same.”²⁵

[15] In particular, Judge Tompkins did not consider Mr Marsh fell within the exceptional circumstances identified by the Court of Appeal in Barnes v R²⁶ as warranting a reduction on the basis this is Mr Marsh’s stage two conviction.²⁷

This appeal

Appellant’s position

[16] Mr Marsh’s notice of appeal dated 16 November 2018 challenges the sentence as being manifestly excessive. In written submissions the following two grounds of appeal were advanced:

1. The Judge erred in his assessment that the Crown had disproved beyond reasonable doubt the disputed mitigating fact raise by the defence. Mr Marsh ought to have been afforded a discount to reflect his reduced culpability.

2. The discounts afforded to Mr Marsh were insufficient - the guilty plea credit should have been more due to the nature of the issues that ultimately resulted in a delay before a disputed fact hearing could take place. Furthermore, even without the disputed mitigating fact Mr Marsh should have been afforded more reduction in his overall sentence (to reflect, for example, his reduced level of premeditation and his reduced overall culpability).

[17] Counsel for Mr Marsh, Ms Spelman, identified and addressed in some detail the evidence which supported the existence of coercion and therefore the grounds of appeal, particularly ground “a.” above.

Respondent’s position

[18] The respondent’s position is that the starting point and end point were available to the District Court Judge. In respect of ground “a.” above, Ms Light submitted the

²⁵ At [15].

²⁶ Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.

²⁷ Sentencing decision, above 2, at [13] and [17].

Judge had the benefit of hearing Mr Marsh’s evidence and was best placed to make an assessment of the credibility of his evidence. The Judge reached a finding that was open to him and available on the evidence before the Court.

[19] As to ground (b) the respondent’s case is that Mr Marsh pleaded shortly before a second scheduled trial date and a discount of 15 per cent was generous in the circumstances.

Approach to appeal

[20] Being a first appeal against sentence this appeal is governed by subpart 4 of Part 6 of the Criminal Procedure Act 2011 (CPA). A first appeal under subpart 4 must be determined in accordance with s 250 of the CPA. Section 250 provides:

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

[21] In the vast majority of cases the focus will be on whether the final sentence is within a range that can properly be justified by accepted sentencing principles rather than on the process by which the sentence was reached.²⁸

[22] Where a fact relevant to an appeal against sentence is in dispute the court may conduct a disputed fact hearing in accordance with s 24 of the Sentencing Act.²⁹ Where the prosecution has failed to negate beyond reasonable doubt, a disputed mitigating fact (that is not wholly implausible or manifestly false)³⁰ the finding will not stand on appeal.³¹

²⁸ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

²⁹ R v Chicoine CA 220/04, 21 March 2005.

³⁰ Sentencing Act 2002, s 24(2)(c).

³¹ R v Gatenby CA 511/04, 28 May 2005, at [15].

Assessment

[23] Section 24 of the Sentencing Act contains a statutory framework by which the factual foundation is laid for sentencing to occur. The section reflects that a guilty plea in itself may not sufficiently present the facts necessary for sentencing.

[24] Where a fact relevant to the determination of a sentence is disputed, and a disputed facts hearing becomes necessary to determine the point, the s 24 process must be followed.³² In many respects a disputed facts hearing has the hallmarks of a mini trial.

(a) Section 24 allows the prosecutor or defendant to assert facts in amplification of the circumstances of the offence.³³

(b) The evidence brought before the Court must be “‘admissible’ evidence and ‘without reliance on hearsay’”.³⁴ Evidence will be sufficient where it proves the disputed fact to the standard required under s 24(2)(c) or s 24(2)(d).³⁵

(c) The Judge is entitled to reach a finding of fact if it is proved to the requisite standard on the evidence presented, regardless of the submissions of the parties.³⁶

[25] Adherence to procedural and evidential protections is critical. The outcome of the disputed facts hearing may provide justification for a substantially longer sentence. One such protection is the obligation on judges to give reasons for factual findings. In Sena v New Zealand Police one of the issues on appeal was whether the trial Judge had given adequate reasons for her verdicts.³⁷ The Court of Appeal said:³⁸

³² R v Gatenby, above n 31.

³³ Adams on Criminal Law (online looseleaf ed) at [SA24.04].

³⁴ R v Bryant [1980] 1 NZLR 264 (CA) at 271.

³⁵ Lyttelton v R [2018] NZCA 243 at [73] citing R v Bryant, above n 34, at 270–271; and R v Booth

CA109/05, 18 July 2005 at [41].

³⁶ At [SA24.03] commentary and cases there cited.

³⁷ Sena v New Zealand Police [2018] NZCA 203.

³⁸ At [14].

... the relevant authorities make it clear that decisions given by judges sitting alone at trial should include a concise account of the evidence and a plain statement of the reasons for the findings reached.

[26] The Court of Appeal cited a passage from R v Connell where it was argued on appeal the Judge had failed to give sufficient weight, or indeed address, certain factors.³⁹ Cooke J, delivering the judgment of the Court, said: ⁴⁰

Only in most exceptional cases, if ever, is it likely to be consistent with the judicial role ... to give no reasons for the verdict. ...in general no more can be required than ... a plain statement of the Judge’s essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.

[27] Logically, the principle has equal application in the context of a disputed facts hearing. Whether sitting alone as a trial judge, or in a disputed facts hearing, the judge is engaged in an assessment of the evidence and must determine whether the party who carries the burden of proving a fact to the requisite standard has done so. In both contexts the outcome has the potential to impact adversely on a defendant and in both situations the defendant is entitled to understand the reasons for the view the judge has taken of the evidence. It is also important from a public confidence perspective that a reasoned approach to the assessment of evidence is apparent from the judgment.

[28] There were many obvious points of conflict before Tompkins J bearing on the disputed mitigating fact. Many of those points are apparent from the Judge’s summary of the arguments advanced on behalf of Mr Marsh.⁴¹ The Judge determined the Crown had negated beyond a reasonable doubt that Mr Marsh was compelled to participate in the robbery in the way he did. But there is no discernible basis in the decision for the Judge’s conclusion that the Crown had discharged the onus on it. The extent of the Judge’s reasoning appears to be the two observations which are italicised in the passages from his decision, set out above at [12].

³⁹ R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 (CA).

⁴⁰ At 237–238 (emphasis added).

⁴¹ Set out above at [8].

[29] Mr Marsh was the only witness called. Transcripts of Mr Marsh’s phone calls from the prison while on remand were put to him and three exhibits were produced including his Kia Kaha shirt.

[30] The notes of evidence occupy some 40 pages. Mr Marsh was cross-examined about his association with gang members; how he came to be working on Robin’s car and the nature of that work; the purpose for which he was dropping off clothes at the house of a woman he was visiting; the seats Mr Moki and Mr Kirkwood respectively jumped into when they got into the car; the nature of the threat he felt when told there was someone sitting outside his mother’s house; what happened at the petrol station and how the car was “jump started”; how Mr Marsh was able to tell his son who was following his father, “to boot it”; and whether, when at the gas station, he could have asked members of the public to call the Police.

[31] Mr Marsh was then cross-examined on the lead-up to his entry into the Sandbar, what he was given, what he was told to do, what he was wearing and as to the robbery itself. Mr Marsh has always accepted he was holding the gun. It was put to him at one point that he could have turned the gun onto Mr Kirkwood and run away. Mr Marsh said: “what, turned the pistol on a gang member and run away? ... I never thought of it, no. Only thing that was running through my mind was my old lady and my children.”⁴²

[32] Mr Marsh was questioned about why he did not mention any injury to the Police when he was arrested. In fact, as the summary of facts discloses, Mr Marsh refused to make any statement at all. He was cross-examined about the information he received when in prison that his son, Shay, had been stabbed and that he (Mr Marsh) should take that as a warning. Mr Marsh was also cross-examined about the phone calls with his partner and daughter and a Mongrel Mob member.

[33] What I have set out is not an exhaustive description of the matters put to Mr Marsh in cross-examination. Even so, the description illustrates the extent and nature of the evidence before the Judge and the necessity for a plain statement of

⁴² Notes of Evidence p 28.

essential reasons for his finding.⁴³ The Judge was required to find the prosecutor had negated the disputed fact beyond a reasonable doubt. In the face of that high standard, and when the sole witness had been cross-examined at length and, from my assessment of the notes of evidence, was consistent and apparently unshaken in his evidence, it is important for the defendant to understand in broad terms why his evidence was rejected. The Judge was not required to provide comprehensive reasons but there should have been a statement sufficient to disclose the reasons for the Judge’s apparent rejection of Mr Marsh’s evidence.

[34] Mr Marsh was entitled to know the reasons for the Judge’s factual findings. The decision contains no reasons. Nor does it indicate whether Mr Marsh’s evidence was rejected in its entirety, or only in some respects and if so, which respects. There is no objective basis, therefore, upon which Mr Marsh — or an appeal court — can be confident the sentencing proceeded on a proper factual foundation. Adopting the approach of the Court of Appeal in R v Gatenby, the finding cannot stand.⁴⁴ Having reached that view I am to consider the matter de novo.⁴⁵

[35] I have carefully examined the evidence that was before the Judge. It would have been a simple matter for the Judge to have found Mr Marsh, in some degree, to be implausible, or lacking credibility, or that his evidence was unreliable. There is no such intimation in the Judge’s decision. Indeed, the Judge appears not to have rejected outright Mr Marsh’s explanation for his involvement. The Judge accepted that “initially he may not have wanted to be involved” but that his initial hesitancy was overcome.⁴⁶ The Judge also acknowledged Mr Marsh was subjected to “persuasion”.⁴⁷ The degree and nature of the “persuasion” that Marsh described may not have been at the level of coercion required to avoid conviction but it may be taken into account as a mitigating factor in sentencing.⁴⁸

[36] There being no contrary indication in the disputed facts decision, I proceed on the basis Mr Marsh presented as a credible witness. On my detailed review of the

⁴³ R v Connell, above n 39.

⁴⁴ R v Gatenby, above n 31

⁴⁵ R v Loveday CA 264/96, 12 September 1996, at 3–4.

⁴⁶ Disputed fact decision, above n 3, at [27].

⁴⁷ At [28].

⁴⁸ See for example Kingston v R [2010] NZCA 460 at [25].

evidence, I consider a reduction in sentence is warranted to reflect Mr Marsh’s reduced level of culpability. Critically, my approach to the facts is not contradictory of the agreed summary of facts.

[37] I propose a discount of six months.

[38] As to the second ground of appeal, the appellant has not established that the Judge erred in discounting Mr Marsh’s sentence by only 15 per cent in recognition of his guilty plea. Even accepting that Mr Marsh delayed his decision until his co- defendants had pleaded, as Ms Light submitted to give an increased discount for a late guilty plea attributable to Mr Marsh’s sense of compulsion, would be to effectively double count the discount he has received for the factor said to mitigate his offending.

Result

[39] The appeal is allowed. The sentence of four years six months imprisonment imposed in the District Court is set aside. In its place Mr Marsh is sentenced to a term of imprisonment of four years.







Karen Clark J

Solicitors:

Crown Solicitor, Wellington for Respondent