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 to commit serious drug offences. The co-defendant received a four-year prison sentence. The defendant received an eight-year prison sentence. The Court of Appeal dismissed the appeal because the co-defendant’s sentence was made cumulative on an existing sentence of six years’ imprisonment. It concluded the totality principle justified the difference between the offenders’ sentences.

[7]    In R v Eketone-Mahara,4 the defendant and co-defendant committed aggravated robbery and other serious offences. The defendant received a sentence of five years’ imprisonment. The co-defendant received three and a half years’ imprisonment. Their culpability was the same, and there was little difference in personal circumstances. The Court of Appeal reduced the defendant’s sentence to three and a half years. It concluded a reasonably minded, independent observer would consider the process had miscarried.

[8]    In van Silfhout v Police,5 the defendant and co-defendant attacked another inmate in an exercise yard. One Judge sentenced the co-defendant to a term of six months’  imprisonment.  Another  Judge  sentenced  the  defendant  to  a  term  of   12 months’ imprisonment. The High Court was seemingly untroubled by these different outcomes. However, it reduced the defendant’s sentence for an unrelated reason.

[9]    In the recent case of Waru v R,6 the defendant and three co-defendants attacked prison officers. All four offenders were then serving significant terms of imprisonment. The defendant had a weapon, but the co-defendants knew that. The offending was premeditated. There was little to distinguish the offenders in terms of role. And, all pleaded guilty. The defendant received a sentence of seven years and 10 months’ imprisonment. The co-defendants received sentences between three years and 10 months’ imprisonment and three years and eight months’ imprisonment.

3      Pearce v R [2014] NZCA 388.

4      R v Eketone-Mahara [2011] NZCA 71.

5      Silfhout v Police HC Tauranga CRI-2011-470-22, 2 September 2011.

6      Waru v R [2019] NZCA 347.

[10]   After “anxious consideration”, the Court of Appeal concluded “a reasonably minded independent observer [would] believe that something had gone wrong with the administration of justice”.7 The Court reduced “the disparity to a justifiable level”, by reducing the defendant’s sentence by a year to six years and 10 months’ imprisonment.8

[11]   Mr Marsh’s situation is most like Pearce v R, in that the totality principle has influenced the length of a cumulative sentence to avoid what may otherwise be a disproportionately severe response. And, Mr  Griffin  pleaded  guilty  earlier  than Mr Marsh. For these reasons, the requisite observer would not consider something had gone awry with Judge Callaghan’s approach.

[12]The appeal is dismissed.

……………………………..

Downs J

7      Waru v R, above n 6, at [39].

8 At [41].