Marsh v Police - [2019] NZHC 2238

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-000057

[2019] NZHC 2238

BETWEEN
WIREMU KORI MARSH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 September 2019

Counsel:

GA Walsh for Appellant SF Gilbert for Respondent

Judgment:

6 September 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 6 September 2019 at 3.30 pm.

Registrar/Deputy Registrar

Solicitors/Counsel: GA Walsh, Hamilton.
Crown Solicitor, Hamilton.

MARSH v POLICE [2019] NZHC 2238 [6 September 2019]

[1] Mr Wiremu Marsh and Mr Cody Griffin attacked another prisoner at Waikeria Prison. Both men repeatedly punched the victim to the head. The victim retreated across the exercise yard. Both men continued to punch him until guards intervened. Mr Marsh was serving a three and a half year sentence for aggravated robbery.1 Mr Griffin was serving a 10-year, nine-month sentence for manslaughter. Judge B P Callaghan sentenced both men for assault with intent to injure. The Judge added three months to Mr Griffin’s sentence. He added nine months to Mr Marsh’s sentence.

[2] Mr Marsh appeals. Mr Marsh contends his sentence is manifestly excessive as it is longer than Mr Griffin’s. Mr Marsh argues his sentence violates the parity principle, which, put broadly, requires co-offenders be treated consistently. Or, as the Court of Appeal has observed:2
... it is a principle of sentencing, and generally desirable, that there should be consistency of sentences between similar offenders committing similar offences in similar circumstances. However, not every difference between sentences or starting points for co-defendants will support an appeal on the grounds of disparity. It is not enough that an offender thinks he has been unfairly treated. The question is whether … there is a real justification for any grievance – that will be the case if a reasonably minded independent observer, aware of all the circumstances of the offence and of the offenders, would think that something had gone wrong with the sentencing process.

[3] The Judge adopted the same starting point for each defendant: 15 months. The Judge added four months for Mr Marsh’s record for violence, and then deducted 16 percent for Mr Marsh’s guilty plea. It is not clear whether Mr Griffin received an uplift for his record. Mr Griffin received a 25 percent discount for a prompt (and earlier) guilty plea.

[4] The Judge then considered totality. He concluded Mr Griffin’s long prison sentence meant an extension of only three months was required. The Judge concluded Mr Marsh’s sentence should be extended by nine months. Mr Marsh argues this reasoning does not justify the six-month difference.

1 Both men’s sentences were for second-strike offences. Assault with intent to injure is not a strike offence. Mr Marsh accepts the cumulative term for it raises no parole issue germane to the appeal.
2 O’Sullivan v R [2015] NZCA 147 at [21].

[5]This area can be difficult, as the following examples suggest.

[6] In Pearce v R,3 the defendant and co-defendant acted in concert…

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.

Continue reading Marsh v Police

Details

AGLC: Marsh v Police [2019] NZHC 2238
Case: [2019] NZHC 2238
Decision Date: 6 September 2019

CaseChat Overview and Summary

In the case of Marsh v Police, Wiremu Marsh appealed his sentence, which had been increased by nine months for an assault on another prisoner at Waikeria Prison. Marsh argued that his sentence was manifestly excessive compared to that of his co-offender, Cody Griffin, who received a three-month increase. He contended that the disparity in sentences violated the principle of parity, which demands consistency in sentencing for co-offenders. The appeal hinged on whether the difference in the sentences was justified or whether it indicated a flaw in the sentencing process.

The court examined whether a reasonably minded, independent observer would consider the disparity justified, given the totality of the circumstances. The sentencing judge had applied the same starting point for both Marsh and Griffin but had factored in different adjustments based on their records and pleas. The judge's reasoning, which took into account the cumulative term for the assault and the existing sentences of both offenders, was central to the appeal. Marsh argued that the six-month difference in sentence extensions was not adequately justified.

The court considered precedents where differences in sentences for co-offenders had been upheld or reduced. In cases like Pearce v R and van Silfhout v Police, the courts had accepted significant differences in sentences for co-offenders based on the totality principle and other mitigating factors. However, in R v Eketone-Mahara and Waru v R, the courts had found the differences in sentences unjustified and had reduced the sentences of the more harshly treated offenders. The court concluded that, given the circumstances, including the earlier guilty plea by Griffin and the influence of the totality principle, a reasonably minded observer would not find Judge Callaghan's approach to be flawed.

The appeal was dismissed. The court found that the sentence imposed on Marsh was justified under the totality principle and did not represent a miscarriage of justice.

Orders