Marriner v Police [2014] NZHC 354 (3 March 2014)

Last Updated: 10 March 2014

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-000002 [2014] NZHC 354

BETWEEN DEON LESLIE MARRINER Appellant

AND NEW ZEALAND POLICE Respondent

CRI-2014-443-000003

BETWEEN DEON LESLIE MARRINER Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 3 March 2014

Counsel: J M Woodcock for Appellant

B C Sweetman for Respondent

Judgment: 3 March 2014

_{JUDGMENT OF COLLINS J}

Introduction

[1] Mr Marriner was sentenced to:

(1) Twelve months’ imprisonment for attempting to convert a vehicle.¹

_{(2) Two months’ imprisonment for possessing an offensive weapon.}

¹ Crimes Act 1961, s 226(2).

These sentences were imposed cumulatively. At the same time Mr Marriner was convicted and discharged in relation to a charge of possessing a methamphetamine pipe.

[2] The question I have to consider is whether the cumulative sentence of

14 months’ imprisonment was wrong, and if so, whether a different sentence should be imposed.²

Background

[3] At about 3.15 am on 10 September 2013, Mr Marriner was seen by police standing at the rear of a motor vehicle in Hawera. The police did a “U-turn” in their vehicle to talk to Mr Marriner. Mr Marriner fled the scene but was soon located by the police.

[4] The vehicle Mr Marriner had been standing next to had a smashed rear window and the ignition barrel had been removed. This caused damage to the rear of the ignition assembly unit.

[5] When Mr Marriner was searched the police located a 19 cm stainless steel knife in a belt bag he was carrying.

[6] Mr Marriner’s cell phone revealed text messages that related to him obtaining

a vehicle to drive to New Plymouth.

Judge Roberts’ decision

[7] Mr Marriner pleaded guilty and came before Judge Roberts on 2 October

2013 in the Hawera District Court.

[8] Judge Roberts treated the attempt to convert a vehicle as the lead offence and

adopted a starting point of 12 months’ imprisonment.

_{[9] The Judge then set a six month uplift to reflect:}

² Criminal Procedure Act 2011, s 250(2)(a) and (b).

(1) Mr Marriner’s previous convictions.

(2) The fact the offending was committed while Mr Marriner was subject to parole and an unfulfilled sentence of community work.

[10] The Judge gave a 25 per cent discount for a guilty plea.

[11] This produced an end sentence of 12 months’ imprisonment for attempting to

convert a vehicle and two months’ imprisonment for possession of a knife.

Appeal out of time

[12] Mr Marriner’s appeal was filed out of time because he experienced difficulties in him being able to instruct a lawyer. The Crown does not take issue with the delay in Mr Marriner filing his appeal. I am willing to grant him leave to bring his appeal out of time.

Legal principles governing this appeal

[13] Prior to the commencement of the Criminal Procedure Act 2011, appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 121(3)(b) of the Summary Proceedings Act 1957 allowed the High Court to quash a sentence imposed by the District Court where it found that the sentence was:

... one which [was] clearly excessive or inadequate or inappropriate, or if the High Court [was] satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the court imposing sentence ...

Appeals under s 121(3)(b) of the Summary Proceedings Act 1957 were normally allowed if the High Court was satisfied that the sentence imposed by the District Court was “manifestly excessive”.³ This was to maintain consistency in sentences

_{imposed on defendants convicted of similar types of offending.}⁴

³ _{R v Brooks [1950] NZLR 658 (CA).}

⁴ R v Pawa [1978] 2 NZLR 190 (CA).

[14] Section 250 of the Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court. Section 250(2) of the Criminal Procedure Act 2011 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.

[15] Not every error in a sentence will provide the foundations for a successful appeal. The types of error that are contemplated by s 250(2)(a) of the Criminal Procedure Act 2011 include:

(1) errors of law;

(2) failing to take account of or not giving sufficient weight to relevant factors;

(3) taking account of irrelevant factors; and

(4) committing an error of principle, such as adopting a starting point that is disproportionately high.

[16] A different type of sentence should be imposed when the appellate court believes a different sentence should be imposed, or the length of the sentence should be altered, but not in a way that amounts to a minor adjustment.

[17] In summary, I proceed on the basis that I can only allow Mr Marriner’s appeal if I am satisfied that there is an error in the sentence which Judge Roberts imposed and that a different sentence should be imposed.

Starting point

[18] Judge Roberts erred when he adopted a starting point of 12 months’

imprisonment because he adopted that starting point against what he believed was a

maximum penalty of seven years’ imprisonment for attempting to convert a vehicle.

The maximum penalty for this offence is two years’ imprisonment.⁵

[19] The authorities demonstrate that a starting point of six to seven months’

imprisonment was appropriate for attempting to convert a vehicle.⁶

[20] In my assessment, Judge Roberts should have adopted a starting point of seven months’ imprisonment for the lead offence of attempting to convert a vehicle, and his failure to do so offended the sentencing principle that, so far as is possible, a sentencing Judge should attempt to impose a sentence that is consistent with sentences imposed on similar offenders in similar circumstances.⁷

Aggravating factors

[21] Mr Marriner accepts that offending while on bail or subject to parole conditions is an aggravating factor that justifies a further uplift. At the time of his offending Mr Marriner was subject to release conditions.⁸

[22] Mr Marriner has a significant criminal history. The type, frequency and seriousness of an offender’s previous convictions can have an impact on the sentence that is imposed.⁹

[23] In my assessment, an uplift to reflect Mr Marriner’s offending while subject to release conditions was appropriate. However, whilst Mr Marriner’s previous convictions are a source of considerable concern, his most recent conviction for dishonesty offending is more than 10 years old. I do not consider this to be any longer relevant to the sentence that should have been imposed by Judge Roberts. Instead, I propose to impose a two month uplift to reflect the aggravating factor of

_{Mr Marriner having offended while subject to release conditions.}

⁵ _{Crimes Act 1961, s 226(2).}

⁶ _{Wade v Police [2014] NZHC 86; R v Tonga HC Auckland CRI-2010-097-20311, 10 June 2011.}

⁷ _{Sentencing Act 2002, s 8(e).}

⁸ _{Sentencing Act 2002, s 9(1)(c).}

⁹ Section 9(1)(j).

[24] This adjustment to the starting point produces a sentence of nine months’

imprisonment before mitigating factors are considered.

Mitigating factors

[25] Judge Roberts allowed a discount of four months for a guilty plea based upon a 25 per cent discount. This was an entirely appropriate course to take.

[26] Applying the same 25 per cent discount to the adjusted sentence produces an

end sentence of six months three weeks’ imprisonment.

[27] There are no other mitigating factors in this case.

Totality principle

[28] Judge Roberts said that an aggravating feature of this case was Mr Marriner’s possession of a knife. Judge Roberts imposed an uplift on the lead offence to reflect the charge of possession of an offensive weapon. The Judge’s reasoning as to how he reached that sentence is unclear as he incorporated both offences into the starting point but then split them into cumulative sentences when setting the end sentence.

[29] In my assessment, imposing a cumulative sentence of two months’ imprisonment for the charge of possessing a knife was an error. Cumulative sentences are to be imposed when two charges are unrelated. In this case a concurrent sentence should have been imposed because Mr Marriner used the knife when attempting to convert the vehicle he broke into.

Overall assessment

[30] The sentence of six months three weeks’ imprisonment will:

(1) hold Mr Marriner accountable for the harm he has done;¹⁰

_{(2) promote a sense of responsibility in Mr Marriner;}¹¹

¹⁰ _{Section 7(1)(a).}

¹¹ Section 7(1)(b).

(3) denounce Mr Marriner’s conduct;¹²

(4) deter Mr Marriner and others from similar offending;¹³

(5) protect society from Mr Marriner;¹⁴ and

(6) assist Mr Marriner’s rehabilitation.¹⁵

[31] This sentence is also the least restrictive sentence that can be imposed in the circumstances of this case.¹⁶

Conclusion

[32] Mr Marriner’s appeal against sentence is allowed, because the cumulative sentence of 14 months’ imprisonment was wrong, and a different sentence should have been imposed.¹⁷

[33] The cumulative sentence of 14 months’ imposed in the Hawera District Court is set aside and substituted with an end sentence of six months three weeks’ imprisonment for the lead offence of attempting to convert a vehicle. A concurrent sentence of two months’ imprisonment is substituted for the offence of possessing an offensive weapon.

_{[34] All other orders made by Judge Roberts remain in force.}

_{D B Collins J}

Solicitors:

Crown Solicitor, New Plymouth for Respondent

¹² _{Section 7(1)(e).}

¹³ _{Section 7(1)(f).}

¹⁴ _{Section 7(1)(g).}

¹⁵ _{Section 7(1)(h).}

¹⁶ _{Section 8(g).}

¹⁷ Criminal Procedure Act 2011, s 250(2)(a) and (b).