Marriner v Police - [2014] NZHC 354

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

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

BETWEEN DEON LESLIE MARRINER Appellant

ANDNEW ZEALAND POLICE Respondent

CRI-2014-443-000003

BETWEEN DEON LESLIE MARRINER Appellant

ANDNEW 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…

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: [2014] NZHC 354
Decision Date: 3 March 2014

CaseChat Overview and Summary

In the case of Marriner v Police, the High Court of New Zealand reviewed an appeal by Deon Leslie Marriner against his sentence for attempting to convert a vehicle and possessing an offensive weapon. The appellant was sentenced to 12 months for the former and 2 months for the latter, imposed cumulatively, following a guilty plea. The court was tasked with determining whether the cumulative sentence of 14 months was appropriate and if a different sentence should be imposed. The court granted the appeal as the cumulative sentence was deemed incorrect.

The legal issues centred around whether the cumulative sentence imposed by Judge Roberts was an error and whether a different sentence should be imposed. The court examined the starting point for sentencing, the consideration of aggravating and mitigating factors, and the application of the totality principle. The appellant argued that the starting point was incorrectly set and that a concurrent sentence should have been imposed for the offence of possessing an offensive weapon.

The court found that Judge Roberts erred in setting the starting point at 12 months for the lead offence, which should have been six to seven months. The court also determined that a cumulative sentence was inappropriate because the offences were related. The court applied a 25% discount for the guilty plea and adjusted the starting point accordingly. The final sentence imposed by the court was six months and three weeks for the lead offence and a concurrent sentence of two months for the possession of an offensive weapon.

In conclusion, the High Court allowed the appeal and set aside the cumulative sentence of 14 months. The court substituted the sentence with six months and three weeks for the lead offence of attempting to convert a vehicle and a concurrent sentence of two months for possessing an offensive weapon. All other orders made by Judge Roberts remained in force.

Orders