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Court of Appeal of New Zealand |
Last Updated: 31 July 2014
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
10 June 2014 |
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Court: |
French, Venning and Mallon JJ |
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Counsel: |
M Starling and L M Drummond for Appellant
C A Harold for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
Introduction
[1] Mr Marzola pleaded guilty to two charges of assault with intent to rob, two charges of offering to supply LSD and two charges of offering to supply cannabis to a person under 18 years of age.[1] He was sentenced in the High Court by MacKenzie J to six years and six months’ imprisonment with a minimum period of imprisonment of two years and nine months.[2] He appeals against his sentence on the ground that it is manifestly excessive. He also appeals against the imposition of a minimum period of imprisonment on the ground that no minimum period was justified.
[2] The appeal is out of time. It follows successful appeals by Mr Marzola’s cooffenders.[3] Mr Marzola says that he promptly filed the notice of appeal after learning of the outcomes of the appeals by his co-accused and once he had the appropriate information. In the circumstances, we consider it appropriate to grant an extension of time. We so order.
The offending
The assaults with intent to rob
[3] Mr Marzola and his co-offenders were involved in a plan to rob the complainants on the pretence of a drug transaction. A few days before the first incident, a co-offender, Mr Ropitini, met with one of the complainants, Mr Gordon, and discussed the possibility of supplying him with cannabis for $6,000. Mr Gordon contacted the other complainant, Mr Morris, who agreed to fund the transaction.
[4] In the early hours of 9 February 2011, the two complainants travelled from Kaikoura to Blenheim to purchase the cannabis. There they were met by Mr Marzola and two other co-offenders. Mr Morris agreed to go with Mr Marzola and his co-offenders to another location to complete the deal. They stopped at a remote location where Mr Marzola threatened Mr Morris with a tyre iron and demanded the money. Mr Morris escaped by jumping down a hill and running into the bush and hiding. He sent a text message to Mr Gordon, who picked him up.
[5] Later that day Mr Ropitini contacted Mr Gordon. He told Mr Gordon that he had nothing to do with the attempted robbery and that the drug deal could be completed in Kaikoura. As with the first attempted robbery, however, the plan remained to rob the complainants. For the purposes of carrying out the robbery, Mr Marzola obtained baseball bats and a tomahawk. He also attempted to obtain a firearm but was unsuccessful.
[6] At about 1.45 am Mr Marzola, Mr Ropitini and two co-offenders drove to Mr Gordon’s home in Kaikoura. Mr Ropitini tried to persuade Mr Gordon to participate in the scheme and lie to Mr Morris about the deal. When Mr Gordon refused, Mr Marzola threw Mr Gordon onto the ground, and Mr Marzola and Mr Ropitini began punching and kicking him. Mr Gordon called for help. Friends of the complainants came outside. One of the co-offenders wielded a baseball bat. Mr Marzola and his co-offenders then decamped.
The drug offending
[7] Between January and July 2011 the police analysed text messages sent and received by Mr Marzola. By the time of this trial, Mr Marzola had already faced 23 charges of offering to sell cannabis and cannabis oil arising from the text messages, for which he was sentenced to two years’ imprisonment by MacKenzie J on 10 October 2011.[4] For reasons that are not apparent to us, Mr Marzola was subsequently charged with four additional offences arising out of the text messages. Two of these were for offering to supply LSD (one for an offer made by text on 27 January 2011 and the other for an offer made by text on 5 February 2011).[5] The other two charges were for offering to supply cannabis to a person under 18 years (both offences relate to offers made by text in May 2011).[6]
Later offending by the co-offenders
[8] Mr Ropitini and others were involved in two aggravated robberies in May 2011. This involved gaining entry to two residential properties with the purpose of taking cash and drugs. Various threats were made to the occupants. No cash or drugs were obtained but some items of property were taken. Mr Marzola was not involved in this offending.
Mr Marzola’s personal circumstances
[9] Mr Marzola was 27 years of age at the time of the offending. He has 44 previous convictions. These include the 23 prior convictions for offering to sell cannabis and cannabis oil arising from the analysis of the text messages referred to above. They also include five convictions for possession of class B and class C drugs for which fines or community work were imposed. They also include three convictions for assault, two in 2008 and the other in 2009. The balance of the convictions are for other relatively minor matters.
[10] Prior to the present offending, the only sentence of imprisonment Mr Marzola had received was the sentence of two years and five months’ imprisonment imposed on 10 October 2011 for the 23 charges of offering to supply cannabis referred to above, together with a charge of receiving property.
[11] Mr Marzola was on bail at the time of the offer to supply LSD in January 2011 and the assaults with intent to rob in February 2011. It appears that this bail was in respect of a charge of common assault that occurred in 2009 but for which he was not sentenced until March 2011. At the time Mr Marzola sent the other text messages in May 2011, he was subject to a sentence of supervision and community work in respect of that common assault.
Sentence in the High Court
[12] All the offenders in the February and May 2011 offending were sentenced by MacKenzie J at the same time. For present purposes the relevant sentences are those for Mr Ropitini and Mr Marzola.
[13] For Mr Ropitini, MacKenzie J adopted a starting point of eight years’ imprisonment for the February charges of assault with intent to rob. He considered that the May offending, on a stand-alone basis, would warrant a starting point of seven years’ imprisonment. That would mean a total cumulative starting point of 15 years, which the Judge reduced by four years to reflect the totality principle. That 11 year starting point was uplifted by nine months because of Mr Ropitini’s previous convictions and because the offending was committed while Mr Ropitini was on bail. The Judge applied a 15 per cent discount for Mr Ropitini’s guilty pleas, thereby arriving at an end sentence of 10 years’ imprisonment. This was allocated as five years and six months’ imprisonment for the February offending and four years and six months’ imprisonment for the May offending. A minimum period of imprisonment of one half of each of those sentences was imposed.
[14] For Mr Marzola the Judge adopted a starting point of eight years’ imprisonment for the February assaults with intent to rob. (That is, the same starting point given to Mr Ropitini in respect of those two charges.) To that he added a cumulative starting point of two years for the drug offending. He then said:
[56] That would give a total starting point of ten years. That needs to be adjusted to reflect the totality principle. In applying that principle, I must take into account the sentence you are currently serving. That is also for drug offending and I sentenced you on that occasion. I would adjust the total starting point downwards by three years to give a total cumulative starting point of seven years.
[15] The Judge applied an uplift of nine months because of Mr Marzola’s previous convictions and because some of the offending was on bail. He then applied a 15 per cent discount for Mr Marzola’s guilty pleas. That left a total end sentence of six years and six months’ imprisonment. That was allocated as concurrent sentences of five years and six months’ imprisonment on the two charges of assault with intent to rob; and sentences of one year’s imprisonment and six months’ imprisonment were imposed on the two offering to supply LSD charges and the two offering to supply cannabis charges respectively, concurrent with each other but cumulative on the assault with intent to rob sentences. The Judge imposed a minimum period of imprisonment set at 50 per cent on the assault with intent to rob sentences.
Co-offenders’ appeal
[16] Mr Ropitini and two others appealed their sentences. Their appeals were allowed and their respective sentences were revised downwards.[7] For present purposes Mr Ropitini’s sentence is the relevant one. His overall sentence of 10 years’ imprisonment was quashed and replaced with a sentence of nine years’ imprisonment. This was allocated as a five year sentence on the February offending and a four year cumulative sentence on the May offending. The minimum period of imprisonment was quashed.
[17] In allowing Mr Ropitini’s appeal this Court did not consider separately what the appropriate starting point would have been for the February offending. Instead it approached the matter from an “overall perspective”.[8] The Court referred to the aggravating features of both the May and February offending, while also noting that the incidents largely involved stand over tactics, that as criminal enterprises they were unsuccessful, and that to the extent violence was used it was at the lower end of the scale.[9] Together the incidents were viewed as having, to a greater or lesser extent, all the characteristics described in the following passage in R v Mako:[10]
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.
[18] Applying that guidance this Court considered that “the starting point of 11 years was within range ... albeit at the uppermost limit.”[11] This Court then went on to note Mr Ropitini had 43 convictions, mostly for comparatively minor offending. He did, however, have four convictions for burglary and one for aggravated robbery for which he had been sentenced to home detention. This Court said:[12]
We agree that a modest uplift was required in this case, especially because the May offending occurred while Mr Ropitini was on bail. However, we consider that nine months is excessive, particularly having regard to the fact that the 11 year starting point adopted by the Judge was at the extreme end of the range. Accordingly, we impose an uplift of three months to reflect personal aggravating factors.
[19] The Court then allowed a further discount of six months for personal mitigating factors. The Court referred to Mr Ropitini being a young man at 23 years of age, and said that he impressed the pre-sentence report writer as being a man of some intelligence and potential, and that if he addressed his drug and alcohol problems he was likely to pose little risk in the future. Mr Ropitini’s age and potential were also the reason for quashing the minimum period of imprisonment. The potential for parole at one third of Mr Ropitini’s sentence was seen as providing him with the incentive to undertake meaningful change in his life.
[20] The end result was that Mr Ropitini received a lesser sentence in respect of the February 2011 offending than that imposed on Mr Marzola for that offending (five years’ imprisonment compared with five years and six months’ imprisonment for Mr Marzola) and no minimum period of imprisonment. That was as a result of this Court’s assessment of Mr Ropitini’s personal circumstances.
Assessment of Mr Marzola’s appeal
[21] Mr Marzola takes issue with each component of the sentence as derived by the Judge. The question is whether the end sentence is manifestly excessive as a result of any of those matters.
Starting point for the assaults with intent to rob
[22] Mr Marzola contends that the starting point in respect of the assaults with intent to rob was manifestly excessive. It is accepted that Mr Marzola’s culpability in the February offending was comparable to that of Mr Ropitini. Given that, this Court’s decision in respect of Mr Ropitini does not support the submission that the eight year starting point was manifestly excessive. For Mr Ropitini, the 11 year overall starting point for the February and May offending was left unchanged. As this Court noted, that 11 year starting point made a generous allowance for totality.
[23] As in Mr Ropitini’s appeal, we consider that the February offending characteristics meant that a starting point of “seven years or more” was available.[13] Given that there were two incidents but they were connected, and that they were unsuccessful “stand-over tactics” involving violence at the lower end of the scale, we consider that the eight year starting point was available to the Judge, albeit that it was towards the upper end of the available range.
Starting point for the drug offending
[24] Mr Marzola contends that the starting point in respect of the drug offending was manifestly excessive. He contends that, had he been sentenced for all the offending arising from the analysis of the text messages at one time, it is doubtful that anything more than the two year sentence he received in October 2011 would have been imposed. The Crown contends that the four additional charges did warrant a further penalty, particularly because two of them involved offers to supply a class A drug.
[25] We agree with the submission for Mr Marzola that the two further offers of supplying cannabis would not have added to the overall assessment of the culpability of the cannabis offending that was before the High Court in October 2011. However we agree with the Crown that the two offers to supply a class A drug did warrant a further sentence beyond that imposed in October 2011.
[26] As the Judge said, the exact quantity of LSD involved in the offers was not clear. He sentenced Mr Marzola on the basis that it was low-level offending. That is consistent with the summary of facts, which indicates that one associate was looking for “one unit” of LSD and another was after a “tab”. Bearing that in mind, and taking into account the totality principle, we consider that the one year cumulative sentences that were imposed for the drug offending were not outside the available range, but were towards the upper end of the range.
Totality
[27] Mr Marzola contends that the Judge erred in his approach to the drug offending “by viewing this offending on its own”. We do not accept this submission. The Judge said that if he was sentencing for the drug offending on its own he would adopt a starting point of two years’ imprisonment. That would mean a total sentence of 10 years for the present matters. He then noted that he needed to take into account that Mr Marzola was already serving a sentence for drug offending. He adjusted the sentence downwards by three years to reach his overall cumulative starting point of seven years’ imprisonment.
[28] The Judge therefore took into account that he was sentencing the drug offending at the same time as the assaults with intent to rob, that he had earlier sentenced Mr Marzola for drug offending, and that he was still subject to that sentence. The allowance for the totality principle meant that the overall starting point of seven years was less than the eight years the Judge would have imposed for the assaults with intent to rob considered on their own. The allowance for totality was therefore generous.
Uplift
[29] Mr Marzola makes a comparison with the revised uplift for personal aggravating factors imposed by this Court in respect of Mr Ropitini. The two offenders have a similar number of previous convictions. The convictions for each are mainly for relatively minor offending. Both had relevant convictions (Mr Marzola had convictions for violence and Mr Ropitini had convictions for aggravated robbery and burglary). Both were on bail at the time of the offending we are considering. A difference is that Mr Marzola was subject to a sentence of supervision at the time he made the two offers to supply cannabis in May 2011.
[30] Mr Ropitini’s uplift was reduced from nine to three months particularly because the uplift was applied to a starting point at the extreme end of the available range. That was not the case here. Although the starting points here were towards the high end, as we have said the allowance of three years for totality was generous. Further, there was the additional aggravating factor of offending while subject to sentence. In these circumstances the uplift applied here cannot be said to be excessive such as to lead to an overall end sentence that was manifestly excessive.
Minimum period of imprisonment
[31] Lastly Mr Marzola contends that a minimum period of imprisonment was not justified. There are, however, two points of distinction. First, Mr Marzola is older than Mr Ropitini. At 27 years of age he was past the stage where the court would ordinarily take into account the immaturity of youth. Secondly, Mr Marzola declined to attend the interview with the pre-sentence report writer. He therefore had not impressed the report writer with his potential as had Mr Ropitini. We consider that there was no error by the Judge in imposing a minimum period of imprisonment for Mr Marzola.
Result
[32] The application for an extension of time to appeal is granted.
[33] The appeal is dismissed.
Solicitors:
Crown
Law Office, Wellington for Respondent
[1] Crimes Act 1961, s 236(1)(c); Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a); and Misuse of Drugs Act, s 6(1)(d) and (2)(c).
[2] R v Ropitini [2012] NZHC 1927.
[3] Foster v R [2012] NZCA 575.
[4] R v Marzola HC Blenheim CRI-2011-006-1307, 10 October 2011. A cumulative sentence of five months’ imprisonment was also imposed at this time for receiving property.
[5] Misuse of Drugs Act, s 6(1)(c) and (2)(a).
[6] Section 6(1)(d) and (2)(c).
[8] At [15].
[9] At [17].
[10] R v Mako [2000] 2 NZLR 170 (CA).
[11] At [18].
[12] At [19].
[13] R v Mako, above n 10, at [58].
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