Marriner v Police

[2020] NZHC 1877

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000072

[2020] NZHC 1877

BETWEEN

WADE STEPHEN MARRINER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 July 2020
Counsel:	AM Desai on instruction from PK Hamlin for Appellant KM Moon for Respondent
Judgment:	30 July 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 30 July 2020 at 2.30 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. PK Hamlin, Auckland.

AM Desai, Auckland.

MARRINER v POLICE [2020] NZHC 1877 [30 July 2020]

The appeal

[1]    Wade Marriner pleaded guilty to assaulting his partner with intent to injure her.1 Among other things, Mr Marriner pushed the victim to the ground and kicked her to the stomach. Judge EM Thomas sentenced Mr Marriner to 200 hours’ community  work.2    He  ordered  reparation  of  $1,000.    Mr Marriner  appeals.    He contends he should have been discharged without conviction; and received a shorter term of community work.

Background

[2]Mr Marriner and the victim were in a relationship for approximately two years.

[3]    At 3.30 am on 26 July 2018, Mr Marriner came home drunk. He questioned the victim  about  supposedly  sleeping  with  someone  else.  He  became  angry.  He pinned the victim to the bed, then pushed her against the wall. The victim ran down the  hallway.  Mr Marriner  chased.  He  pushed  the  victim  to  the  ground. Mr Marriner straddled her. He put his hands around her neck. The victim struggled. Mr Marriner got up. He kicked her to the stomach. The victim ran to the front door. Mr Marriner chased, and held  it  shut.  The  victim  ran  back  down  the  hallway. Mr Marriner caught her and threw her to the ground. He put his hands around her neck a second time. Mr Marriner eventually let the victim go. She was in her underwear throughout.

[4]    The victim sustained scratches, abrasions and a bruised hip. She continues to suffer significant psychological harm.

[5]    Mr Marriner works in the printing industry as an account manager.3 He applied to be discharged without conviction because of employment repercussions.

1      Crimes Act 1961, s 193. The maximum penalty is three years’ imprisonment.

2      Police v Marriner [2020] NZDC 7778.

3      The Judge suppressed the employer’s name. This issue was not raised on appeal. This judgment should not be read as confirmation this aspect of the decision is correct.

[6]    Judge Thomas dismissed the application. The Judge held the offending was moderately serious and the direct and indirect consequences of conviction not out of all proportion to the gravity of the offending.

Mr Marriner’s case

[7]    On behalf of Mr Marriner, Mr Desai contends the offending was not as serious as the Judge concluded: the Judge wrongly considered Mr Marriner had strangled the victim; and failed to consider Mr Marriner’s personal circumstances in a counsellor’s report. Mr Desai also contends the Judge under-estimated the employment consequences for Mr Marriner, a submission based in part on further evidence. Finally, Mr Desai contends the sentence is manifestly excessive.

Principle

[8]    A Court may discharge a defendant without conviction if satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.4 The Court first assesses the gravity of the offending, which includes both aggravating and mitigating factors. The Court next assesses direct and indirect consequences of conviction. It then asks whether those would be out of all proportion to the gravity of the offending. If so, the Court has a residual discretion to discharge the defendant without conviction.

[9]    An appellate Court must be persuaded the Court below was wrong; but reach its decision on its own view of the case.5

Analysis

[10]The Judge described the offending this way:6

Mr Marriner, in the early hours of 26 June last year you returned home intoxicated. You began a very ugly confrontation with your partner. She did not engage. You became enraged. You pinned her to the bed. You pushed her against the wall. She escaped and ran down the hallway. You chased her. You

4      Sentencing Act 2002, s 107. Drake v R [2019] NZCA 56 provides a recent example of a successful application for a discharge (on appeal to the Court of Appeal).

5      R v Taulapapa [2018] NZCA 414 at [18], citing H (CA680/2011) v R [2012] NZCA 198

at [35]-[36].

6      Police v Marriner, above n 2, at [1].

pushed her to the floor. You straddled her. You put your hands around her throat. She struggled. You got up and kicked her in the stomach. She tried to escape out the front door. You chased her. You caught her. You threw her to the ground. For the second time, you put your hands around her throat. You eventually let her go. She eventually was able to leave.

[11]   The Judge also referred to “multiple instances of strangulation” when assessing the gravity of the offending.7 Mr Desai contends these descriptions are inconsistent with the summary of facts, which refers to Mr Marriner twice “putting his hands around her neck”. Mr Desai observes an earlier version of the summary of facts explicitly referred to Mr Marriner restricting the victim’s breathing when doing so, but this was removed as Mr Marriner did not accept he did this.

[12]   The Judge’s remarks contain an element of overstatement, not more. On each occasion, the victim was on the ground and Mr Marriner above her. On each occasion, Mr Marriner restrained the victim by putting his hands around her neck. Many would consider this akin to strangulation—or falling only a little short. The difference is of degree, not kind.8

[13]   Mr Marriner gave the Judge a report  from  a counsellor.  The  report  says  Mr Marriner experienced “serious violence and emotional abuse” during his upbringing, and this resulted in “a dependency issue in Wade’s adult life”. The report says Mr Marriner has “an underlying feeling of low self-worth”. It continues:

The circumstances of being in a highly volatile, unstable relationship with frequent verbal arguments often triggering the emotional abuse of his childhood have been a major contribution to the incident. When feeling vulnerable Wade’s behaviour can be impulsive and he often reacts to situations in an impulsive and irrational way. The culmination of conflict-based relationship issues coupled with alcohol use as self-medication are the factors behind the incident in July last year.

[14]   Mr Desai contends this constellation makes the offending less serious than the Judge considered, as it discloses linkage between Mr Marriner’s personal circumstances and the offending. The Judge referred to the fact Mr Marriner had “done counselling” but not the report itself.9

7      Police v Marriner, above n 2, at [4].

8      Mr Desai did not contend the Judge was given the earlier version of the summary of facts, a point I explored at the hearing.

9      Police v Marriner, above n 2, at [5].

[15]   The report appears to have been prepared by a psychotherapist, based exclusively on self-reporting. It offers a hypothesis. In these respects, the report is not different to many offered to sentencing Courts. This should not be mistaken for commendation; absent reliable information, Courts can struggle to achieve the correct result.

[16]   Mitigation requires a causal connection between the posited circumstance(s) and the commission of the offence.10 Whether the Judge was asked to find a connection is unclear; my sense is that a report prepared to demonstrate Mr Marriner’s successful participation in counselling sessions is now offered for a different purpose.

[17]   I am unpersuaded of causal connection. The report is silent on science. It says nothing about the author (beyond name and address). Qualifications and experience are not cited, nor how the information was obtained. Likely self-reporting is not augmented by apparent search for corroboration. The hypothesis is workable, but given the modesty of information in the report, must remain that. Again, the report appears to have been prepared for a different purpose, which explains its shortcomings.

[18]   Mr Marriner is an account manager in the printing industry. He swore an affidavit in the District Court about the potential consequences of a conviction on his employment. Mr Marriner said he maintains “key client relationships for the company” and a conviction would preclude him continuing in that role.

[19]   Mr Marriner appended a letter from his employer. The letter says a conviction “would negatively impact … his ability to progress his career within [the company] or any other organisation in the printing industry”. The “main reason is that many clients would not condone someone … in their office … if the employee has a conviction of any sort”. The letter concludes by affirming the company’s support for Mr Marriner, adding, “continued employment would have to be reassessed in light of a conviction”.

[20]   Mr Marriner also adduced evidence from Duncan McVey, a recruitment consultant. Mr McVey says:

10     R v M [2008] NZCA 148 at [33].

The printing industry is quite a small, specialised and unique industry. Any conviction of his current charges would mean very little chance of him getting a job anywhere else in the industry.

[21]   The Judge considered the evidence fell “short of saying … your employment would be terminated”.11 He recognised advancement would be “a little harder”.12 The Judge concluded employment consequences were “natural consequences” of the offending.13

[22]   Mr Marriner seeks to adduce additional evidence from Alric Wright, another recruitment consultant, and Christopher MacLean, the general manager of a printing company Mr Marriner worked for immediately  before  his  current  employment.  Mr Desai contends the evidence is sufficiently fresh and cogent to be admitted on appeal, and with the evidence in the District Court, demonstrative of error. Mr Desai argues there is a real risk Mr Marriner may lose his job and, even if he does not, a real risk career advancement would be precluded by a conviction.

[23]   Mr Desai’s written submissions responsibly acknowledge  the  affidavit  of Mr Wright merely “corroborates what is outlined in the  affidavit  of  evidence of  Mr McVey”. Mr Wright’s evidence could readily have been placed before the District Court. So, Mr Wright’s evidence is neither fresh nor cogent.14

[24]    Mr MacLean says he believes “Wade will have to look at a career change if he retains a criminal conviction”. Mr MacLean says he was “not close” to what happened when Mr Marriner was charged—a point to which I return shortly. Mr MacLean’s evidence could also have readily been placed before the District Court. The evidence is that of a former employer, not  a current one.   It  too is neither fresh nor cogent.    I decline to admit both affidavits.

[25]   Mr Marriner appended his employment contract to his affidavit. It and the letter make clear Mr Marriner gained his current role after being charged with the offence but before sentencing. The letter says, “Wade has approached us regarding

11     Police v Marriner, above n 2, at [9].

12 At [9].

13 At [10].

14     R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 and Lundy v R [2013] UKPC 28,

[2014] 2 NZLR 273.

the legal charges … against him” and while the company “does not condone this behaviour, we recognise Wade has put a significant [amount] of effort into reviewing his actions”. The letter adds, Mr Marriner “is a key employee … we would like to retain”.

[26]   This sequence and the associated evidence  reveal  the  Judge  did  not  err. Mr Marriner got his role—with a new employer—while facing this charge; indeed, after pleading guilty to it. The only material from the employer, the letter, suggests the company will continue to support Mr Marriner, albeit with the qualification career progress may be affected. Like Judge Thomas, I consider this an entirely natural consequence of the offending.

[27]   My view would endure even if Mr Marriner were to lose his job. The offending was an ugly incident of domestic violence against a near-naked victim, and one who has suffered significant psychological harm.15

[28]   This leaves the sentence appeal. Mr Desai contends the 200-hour term of community work is manifestly excessive given two cases. In Penrose v Police,16 the defendant held the victim by the throat and threatened her. He applied pressure to the airways for up to 30 seconds. A sentence of 150 hours’ community work was upheld on appeal. In Ballantyne v Police,17 the defendant punched the female victim (to the head), then repeatedly punched her husband. A sentence of 220 hours’ of community work was upheld. Mr Desai argues the offending is less serious than each.

[29]   I disagree. Mr Marriner’s offending is at least as serious given aggravating features, which include a significant breach of trust and sustained assault. The other more significant answer is this: Mr Marriner could have been imprisoned.18

15 The victim impact statement, updated June 2019, says the victim suffers from post-traumatic stress disorder, continues to live in fear of unexpectedly meeting Mr Marriner, and struggles to control her emotions.

16     Penrose v Police [2013] NZHC 2757.

17     Ballantyne v Police HC Hamilton CRI-2010-419-20, 22 April 2010.

18     Goodman v R [2016] NZCA 65.

Result

[30]The appeal is dismissed.

……………………………..

Downs J