Marsh v The Queen - [2018] NZHC 2485

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-33 [2018] NZHC 2485

BETWEEN
JUNIOR MARSH

Appellant

AND

THE QUEEN Respondent

Hearing: 14 September 2018

Appearances:

G Walsh for the Appellant
AAR Pell for the Respondent

Judgment:

21 September 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 21 September 2018 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:
G Walsh, Barrister, Hamilton
AAR Pell, Almao Douch, Hamilton

JUNIOR MARSH v R [2018] NZHC 2485 [21 September 2018]

Introduction

[1] Junior Marsh was sentenced by Judge A S Menzies to four years and two months’ imprisonment on one charge of wounding with intent to injure,1 one of injuring with intent to injure2 and one of aggravated assault.3 Mr Marsh appeals against that sentence on three grounds. First, he says the starting point of four years was too high. Second, he says the uplift applied to that starting point for totality and prior convictions of one-and-a-half years was too great. And third, he says the discount applied for his guilty plea — just below 20 per cent — was inadequate.

What happened?

[2] In the early hours of the morning on 25 January 2017, Mr Marsh was the front seat passenger in a vehicle being driven by a Peri Fisher. Two police officers, Constable Topia and Constable Young, observed the vehicle, a Toyota Caldina, travelling at speed towards them. The vehicle was travelling fast enough to get airborne as it crossed a set of railway tracks, and both police officers heard the motor vehicle hitting the road surface.

[3] The police officers attempted to bring the vehicle to a stop by activating their blue-and-red lights and their siren. Mr Fisher failed to stop for police for approximately 500 to 600 metres, before pulling into his residential address.

[4] The police officers followed the motor vehicle into the address and parked near it. Mr Marsh got out of the front passenger seat, walked away from the motor vehicle and stood a short distance from the police officers. He was at this stage compliant.

[5] Meanwhile, Mr Fisher was abusive towards Constable Young. Constable Young reached into the driver’s window of the motor vehicle to remove the key. Mr Fisher aggressively swung the driver’s door open with both hands, and it hit Constable Young in his torso, knocking him backwards approximately five feet. Mr Fisher then got out of the vehicle, yelled at the constable and threatened him. Constable Young

1      Crimes Act s 188(2) – maximum penalty 7 years’ imprisonment.
2      Crimes Act s 189(2) – maximum penalty 5 years’ imprisonment.
3      Crimes Act s 192 – maximum penalty 3 years’ imprisonment.

indicated to Mr Fisher that he had a taser, however, Mr Fisher persisted in his behaviour.

[6] Constable Topia attempted to apprehend Mr Fisher, who was resisting. The constable deployed OC spray on Mr Fisher and attempted to handcuff him.…

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 The Queen

Details

AGLC: Marsh v The Queen [2018] NZHC 2485
Case: [2018] NZHC 2485
Decision Date: 21 September 2018

CaseChat Overview and Summary

Junior Marsh appeals against his sentence, which was four years and two months’ imprisonment for charges of wounding with intent to injure, injuring with intent to injure, and aggravated assault. The appellant argues that the starting point of four years was too high, the uplift applied for totality and prior convictions was too great, and the discount for his guilty plea was inadequate. The Crown submits that the offending was more serious than comparable cases relied upon by the appellant and the sentence was appropriate. The High Court allowed the appeal and substituted a sentence of three years and eight months’ imprisonment. The court found that an appropriate starting point would have been three years and eight months imprisonment, the uplifts applied were open to the sentencing judge, and the guilty plea discount should have been 14 months as opposed to 12 months.

The Court of Appeal in Tutakangahau v R has confirmed that s 250(2) of the Criminal Procedure Act 2011 was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957. The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. The appeal must proceed on an “error principle” and the Court will only re-exercise the sentencing discretion if an error of that character is involved. In this case, the Court found that the starting point was too high and the guilty plea discount was inadequate, and so appellate intervention was necessary. The Court substituted a sentence of three years and eight months’ imprisonment, adopting the District Court’s uplifts and discounts, except for the guilty plea.

Orders