Marriner v Police - [2016] NZHC 598

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2016-443-007 [2016] NZHC 598

BETWEEN
DEON LESLIE MARRINER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 6 April 2016

Counsel:

K M Marriner for appellant
S J Simpkin for respondent

Judgment:

7 April 2016

RESERVED JUDGMENT OF DOBSON J

[1] On 13 January 2016, Mr Marriner was sentenced by Judge Roberts in the

District Court at Hawera to a term of two years and five months’ imprisonment.1

That comprised a sentence of that length on the lead conviction of offering to sell methamphetamine, with concurrent sentences also imposed of:

· eight months’ imprisonment for offering to supply morphine;

· twelve months’ imprisonment for offering to supply cannabis;

· twelve months’ imprisonment for possession of utensils for the

consumption of methamphetamine; and

· six months’ imprisonment for offering to sell or supply a psychoactive

substance.

1 Police v Marriner [2016] NZDC 231.

[2] Mr Marriner has now appealed against this sentence. It is argued for Mr Marriner that there was an error of law in that the Judge incorrectly assessed aggravating factors, should have allowed a larger discount for guilty pleas and failed to consider the possibility of a sentence of home detention.

[3] The appeal is brought under s 250(2) of the Criminal Procedure Act 2011, which provides that the appeal must be allowed if the appellate court is satisfied that there is an error in the sentence, and that a different sentence should be imposed.

[4] The charges resulted from a search warrant executed at Mr Marriner’s address, in the course of which the Police recovered eight small plastic bags with unidentified residues, 145 other bags appropriate for the supply of drugs, electronic scales, four morphine tablets, five small bags of a psychoactive substance. Also seized were a plastic straw, a sponge, cotton buds, a gas burner and a cannabis bong, all inferentially used as equipment in the taking of illegal drugs. A glass pipe for a similar purpose was also found concealed on Mr Marriner’s body.

[5] After executing the warrant, the Police sought text message data on a cell phone used by Mr Marriner. Apparently as a result of administrative error, the Police only obtained records of four days’ activity on the cell phone at the end of July 2015. Within that four day period, the text messages showed Mr Marriner had sent 551 texts offering to supply drugs, and had received 76 positive responses.

[6] For sentencing purposes, it is agreed that the charges involved 2.5 grams of methamphetamine, three unspecified amounts of cannabis and undetermined amounts of morphine and synthetic cannabis. The Judge assessed the nature and level of dealing by reference only to the four day period for which there was text message evidence.

[7] The Judge’s sentencing process began by setting a starting point within band one from R v Fatu.2 That band covers low level supply of amounts less than five grams of methamphetamine. The starting point nominated was two and a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 598
Decision Date: 7 April 2016

CaseChat Overview and Summary

Deon Leslie Marriner appeals against a sentence imposed by Judge Roberts in the District Court at Hawera. The sentence was two years and five months’ imprisonment for offering to sell methamphetamine, with concurrent sentences for other drug-related offences. The appeal is brought under section 250(2) of the Criminal Procedure Act 2011, which requires the appeal to be allowed if there is an error in the sentence, and that a different sentence should be imposed. The appellant argues that there was an error of law in the sentencing, including incorrect assessment of aggravating factors, insufficient discount for guilty pleas, and failure to consider the possibility of home detention.

The court examined whether the Judge’s assessment of the intensity of the offending was justified, and concluded that the 551 text messages sent over a four day period constituted intense drug dealing activity. The court rejected the argument that the two-month uplift for concurrent convictions and the four-month uplift for offending while on bail was excessive. The court also considered the argument that a larger discount should have been applied for the guilty pleas and for time spent on bail, but concluded that any adjustments would not have a significant impact on the overall sentence.

The court held that the appeal should be dismissed because any errors in the sentencing process were not significant enough to warrant a different sentence. The court noted that the overall sentence was within the appropriate range and that any adjustments would amount to "tinkering." The appeal is dismissed, and the original sentence stands.

Orders