MARFELL v NEW ZEALAND POLICE [2019] NZHC 368

MARFELL v NEW ZEALAND POLICE [2019] NZHC 368 [7 March 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2018-441-39[2019] NZHC 368STUART BRADLEY MARFELLvNEW ZEALAND POLICEHearing: 20 February 2019 (via AVL)Appearances: W R Hawkins for AppellantC R Stuart for RespondentJudgment: 7 March 2019JUDGMENT OF CLARK JIntroduction[1] Mr Marfell was sentenced to three years and four months imprisonment in theDistrict Court at Napier on 6 November 2018 for the following charges:1(a) three charges of burglary;2(b) five charges of receiving stolen goods (two charges of receiving under$500,3 one charge of receiving between $500 – $1000,4 two charges ofreceiving over $10005).1 Police v Marfell [2018] NZDC 23153.2 Crimes Act 1961, s 231, maximum penalty 10 years imprisonment.3 Section 247(c), maximum penalty three months imprisonment.4 Section 247(b), maximum penalty one year imprisonment.5 Section 247(a), maximum penalty seven years imprisonment.(c) one charge of theft under $500;6(d) one charge of possessing a knife in a public place;7 and(e) three charges of possession offensive weapons.8[2] Mr Marfell appeals his sentence as manifestly excessive. His essential positionis that the District Court Judge erred in emphasising denunciation at the expense ofrehabilitation.Background to chargesFacts relating to offensive weapons charges[3] On 15 February 2018 Mr Marfell was the passenger of a fleeing car stoppedby Police at Harold Holt Avenue, Napier. Police located a tomahawk, knife andoleoresin capsicum spray (pepper spray). Mr Marfell told police he had the weaponsfor his personal safety. He said this was due to a prior incident.[4] On 21 February 2018 Mr Marfell was a passenger in a car stopped by Police.Police observed two large metal bars between the passenger seat and the door andcommenced a search for offensive weapons. Police located a green cooler bagcontaining a wallet with Mr Marfell's licence; a 12-inch long wooden club with a threeto four inch metal spike; a medium sized metal folding knife with a four inch bladeand a Karambit knife with a four to five inch curved blade. Mr Marfell admitted thebag was his.Facts relating to burglary charges[5] At 11am on 22 January 2018 Mr Marfell entered and burgled a property inLanark Crescent, Napier. The victim's 14-year-old daughter was inside the house.Mr Marfell went down the driveway and into the sleepout attached the garage. He6 Section 223(d), maximum penalty three months imprisonment.7 Summary Offences Act 1981, s 13A, maximum penalty three months imprisonment or $2,000fine.8 Crimes Act 1961, s 202A, maximum penalty three years imprisonment.collected numerous items of value including a television, shoes, jewellery, beddingand clothing. He texted his co-offender to drive up the driveway to meet him. His co-offender did so and the pair loaded the items into the boot of the car and drove away.[6] At 2.45pm on 30 January 2018 Mr Marfell arrived (with an associate) at anaddress in King Street, Napier. Mr Marfell gained entry to the house through aninternal door and stole jewellery, cosmetics, electronics, sunglasses and watches to avalue exceeding $5,000. Later that day the defendant attempted to sell some of thestolen items to an associate. On 21 February 2018 Police were in contact withMr Marfell concerning an unrelated matter. On searching his car the Police located apair of silver earrings confirmed to be stolen from the King Street property.[7] On 19 February 2018 there was a burglary at Townshend Crescent, Napier.Numerous items of value were stolen including passports, a valve for a vehicleexhaust, jewellery, a handbag and other personal items. At 5pm that day the victimfound his stolen exhaust valve advertised for sale on a Hustle Live Facebook page.The profile name of the seller was Stuart Marfell, the defendant. The defendant wasspoken to by Police later that evening. Police searched Mr Marfell's car and locatedall items stolen from the burglary. The defendant declined to comment.Facts related to receiving charges[8] On 14 January 2018 there was a residential burglary at Guppy Road, Taradale.Numerous items of value were taken (mainly jewellery).[9] During the weekend of 17/18 January 2018 there was a residential burglary atJervois Road, Napier. Items to a value exceeding $11,000 were stolen includingjewellery and a 2007 Kia Rio hatchback car and keys. In the early hours of 18 Januarythe defendant texted associates to try and sell the jewellery and to locate a "chop shop"to convert the car.[10] On 23 January items valued at over $12,000 were stolen from a residentialproperty in Clarence Cox Crescent, Napier.[11] On 21 February Police were in contact with Mr Marfell in relation to anunrelated matter. Police searched Mr Marfell's car and located jewellery confirmedas being stolen in the Guppy Road burglary.9 Police also located items stolen in theClarence Cox burglary.Facts relating to theft charge[12] On 7 February 2018 Mr Marfell was at Craig Hern Motors, Napier with anassociate. Mr Marfell made his way around the car yard while his associate distracteda car salesman with loan paperwork. Mr Marfell entered into a garage closed to thepublic where the car keys are stored in a cabinet. The cabinet was unlocked at thetime. Mr Marfell and his associate left the car yard. The manager noticed the keys toan unregistered Mazda Axela were missing. That evening Mr Marfell returned withan associate and cut the padlock which secured the gates to the car yard. Mr Marfellused the stolen key to gain entry to the Mazda and drove it from the yard, damaginganother car in the process. The Mazda was located in a damaged state on 12 February2018. Mr Marfell declined to comment.Decision under appeal[13] Mr Marfell plead guilty to all charges. At sentencing, Judge Adeane first notedthe sentencing was "dominated by" the consideration that Mr Marfell was only weeksout of prison from a previous sentence for burglary when he committed the most recentoffences.10 His Honour took guidance from Arahanga v R as to the appropriaterange.11 He adopted a starting point of two years with an uplift of 18 months forreceiving "at this magnitude", an uplift of six months for the previous convictions andan uplift of six months for possession of weapons. This resulted in a starting point offour years and six months imprisonment. Judge Adeane then discounted for guiltypleas and reached an end sentence of three years four months' imprisonment.9 See [8] above.10 Police v Marfell, above n 1, at [3].11 At [3]; and Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.The appeal[14] Mr Hawkins submitted Judge Adeane failed to give proper consideration toMr Marfell's personal circumstances and failed to give sufficient consideration to thesentencing purposes and principles. Mr Hawkins argued if measured considerationbeen given to these considerations the end sentence would not have exceeded threeyears imprisonment.[15] In particular Mr Hawkins submitted Judge Adeane failed to considerMr Marfell's explanation for possessing the offensive weapons namely, that he carriedthem for self-defence purposes following a gang-related incident.[16] Mr Marfell is a methamphetamine user and owed money to the Outlaws gang.In early 2018, the gang demanded repayment and threatened Mr Marfell and hisfamily. In February 2018, Mr Marfell was kidnapped by three members of the gangand hospitalised with serious injuries.12[17] Mr Hawkins also argued no consideration was given to the need forMr Marfell's rehabilitation.[18] For the respondent, Mr Stuart, disputed Mr Marfell's contention he had theweapons for self-defence purposes. If the appellant had genuine grounds to believehe needed weapons for personal safety then, Mr Stuart submitted, he could haveavailed himself of the defence at a trial. Further, any genuine fear of attack wouldhave passed by the time Mr Marfell was in possession of the weapons as two of hisassailants had been remanded in custody and the third released on bail.Approach to appeal[19] This appeal is governed by s 250 of the Criminal Procedure Act. I must allowthe appeal if satisfied that:12 Detective Senior Sergeant James, of Hawkes Bay Police swore an affidavit regarding theassistance to Authorities which Mr Marfell said he provided. Sergeant James alludes to thisincident.(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[20] Only if the error is material should the appellate court interfere. The focus ison the final sentence and whether the sentence imposed was in the available range,rather than the exact process by which it was reached.13Decision[21] That Mr Marfell was carrying all of the weapons found in his possession forself-defence purposes is an assertion raised in mitigation of Mr Marfell's offendingbut the point is not established one way or the other. Neither party sought a disputedfact hearing either before the sentencing Judge or this Court on appeal. WhileMr Marfell told the author of the pre-sentence report that he was only carrying theweapons for his personal safety, Mr Stuart relies particularly on the fact Mr Marfellmade no statement to the Police about being kidnapped and assaulted and remainedsilent until he himself was arrested. I do not think that determines the point. Thereare many reasons why victims of gang violence may be unforthcoming and the factthe offenders were in custody when Mr Marfell was found with the weapons does not,in my view, strengthen the respondent's position.[22] Rather, I do not consider that the overall sentence of three years and fourmonths was excessive even accepting the mitigating factor Mr Marfell puts forward.I am not satisfied there was an error in the sentence imposed and that a differentsentence should be imposed.[23] That is particularly so in light of Mr Marfell's abandonment of the argumenthe was willing to give evidence for the Crown and was therefore entitled to somediscount on the basis of assisting the authorities. As a result of the affidavit evidenceto which I have referred that ground of appeal could not be pursued.14Detective Sergeant James' evidence was that Mr Marfell provided no assistance at all13 Ripia v R [2011] NZCA 101 at [15].14 Referred to at n 12.to the Police in its investigation and the charges against the defendants were withdrawnin the absence of a statement from Mr Marfell and due to evidential insufficiency.[24] As to the argument that Judge Adeane was obliged to impose the leastrestrictive outcome and he was in error in promoting deterrence and denunciation atthe expense of rehabilitation of the appellant, the factors which would normallypersuade a sentencing judge to reduce a sentence are not apparent here. Mr Marfellwas 37 at the time of the most recent offending and the pre-sentence report expressesdoubt as to the genuineness of his claimed commitment to reduced drug use.Judge Adeane was entitled to regard as a dominant consideration that Mr Marfell wasonly weeks out of prison when he committed the offences and that, therefore, therewas a real need for deterrence.[25] I find no error in the starting point, nor the uplift by six months to take accountof Mr Marfell's previous convictions, nor the uplift for the possession of weaponscharges. In light of the authorities which I have considered I tend to agree withMr Stuart's submission that the starting point might even be regarded as generous.15Result[26] The appeal is dismissed._____________________________Karen Clark JSolicitors:Bramwell Bate, Hastings for AppellantCrown Solicitor's Office, Napier for Respondent15 Swinburne v R [2010] NZCA 568; and R v Sherlock [2008] NZCA 555.