Marsh v Police Department - [2018] NZHC 2366

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000030

[2018] NZHC 2366

BETWEEN
TYRONE MARSH

Appellant

AND

POLICE DEPARTMENT

Respondent

Hearing: 7 September 2018

Appearances:

S Cameron for the Appellant S Gilbert for the Respondent

Judgment:

7 September 2018

ORAL JUDGMENT OF MUIR J

Counsel/Solicitors:
S Cameron, Barrister, Hamilton
S Gilbert, Crown Solicitor, Hamilton

MARSH v POLICE DEPARTMENT [2018] NZHC 2366 [7 September 2018]

Introduction

[1] Mr Marsh appeals against the decision of Judge Menzies in the Morrinsville District Court in relation to both his conviction and sentence.1 Mr Marsh accepted a sentence indication given by Judge Menzies and accordingly pleaded guilty to one charge of burglary.2 The appellant contends that Judge Menzies erred in law by failing to adhere to the sentence indication. Specifically, that Judge Menzies indicated that home or community detention may be appropriate depending on the pre-sentence report, but then ruled these sentences as not appropriate in the sentencing. Further, the appellant contends that the end sentence of 11 months’ imprisonment is manifestly excessive for the current charge.

The facts

[2] In the early morning of 26 December 2017, around 6 am, Mr Marsh was on the grounds of Matamata College, which is on Firth Street, Matamata. He climbed through bushes on the border of the school grounds into the garden of the adjoining property, which is a private home. He kicked in a rear window of the house. The victim, a Mr Bennet, went to investigate what was occurring. He saw Mr Marsh run from the property. As he did so Mr Marsh dropped his hat. Police later found Mr Marsh’s DNA on the hat. By way of explanation, Mr Marsh says he only kicked in the window in anger, and not out of any desire to gain entry to the house. The apparent source of his anger was an inability to find cigarettes at the time.

Personal characteristics and the pre-sentence report

[3] Mr Marsh is a 26-year old man of Maori descent. He lives with his parents and two brothers. He claims he receives good support from his immediate whanau. The pre-sentence report does not identify him as having any particular occupation. He has a substantial criminal history, characterised mostly by property-related offending. He has three prior convictions for burglary, the most serious of which occurred in 2017, for which he received a sentence of six months’ home detention. He also has a history of breaching post-release conditions.

1 New Zealand Police v Marsh [2018] NZDC 13188.
2 Crimes Act 1961, s 231(a), maximum penalty of 10 years’ imprisonment.

[4] The pre-sentence report notes that Mr Marsh expressed no remorse or empathy for his victim, and little insight into his past offending. The report writer assessed Mr Marsh’s home address as technically suitable for electronic monitoring, but did not comment on the suitability of the occupants. Mr Marsh has served a sentence of home detention at that location before. The report writer recommends 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: [2018] NZHC 2366
Decision Date: 7 September 2018

CaseChat Overview and Summary

Tyrone Marsh appeals against his conviction and sentence in the Morrinsville District Court. Marsh pleaded guilty to a charge of burglary. The appeal is in two parts. First, Marsh argues that Judge Menzies departed from a sentence indication by ruling out electronically monitored detention. Secondly, he argues that the sentence of 11 months’ imprisonment was manifestly excessive. The Court dismissed the appeal against conviction but allowed the appeal against sentence, substituting a sentence of 14 weeks’ home detention. The Court found that Judge Menzies did not depart from his sentence indication, as he expressly deferred to the pre-sentence report in deciding whether electronically monitored detention would be appropriate. The Court also found that the sentence was manifestly excessive because the custodial sentence did not appropriately balance the purposes of the Sentencing Act, particularly the purpose of imposing the least restrictive outcome appropriate in the circumstances. The Court substituted a sentence of 14 weeks’ home detention.

The appeal against conviction was dismissed. The appeal against sentence was allowed and the sentence of 11 months’ imprisonment was substituted with a sentence of 14 weeks home detention.

Orders