Marshall v Police - [2014] NZHC 2681

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-000112 [2014] NZHC 2681

BRADLEY GEORGE MARSHALL Appellant

v

POLICE Respondent

Hearing: 24 October 2014

Counsel:

E Bulger for Appellant
C J Lange for Respondent

Judgment:

24 October 2014

JUDGMENT AND SENTENCING REMARKS OF WHATA J

Introduction

[1] Mr Marshall you have been charged and pleaded guilty to one count of indecent assault pursuant to s 135 of the Crimes Act 1961. You initially came before me on an application to vary your bail so that you may depart New Zealand and return to the United Kingdom to see your family and then travel on to Japan for work purposes. You are a United Kingdom citizen. If variation to bail was not granted then there was a risk that you would shortly become an illegal immigrant1 and if so, face significant difficulties as you would not be eligible to either work or obtain a
social welfare benefit. You may have lost the opportunity to return to New Zealand

1 Mr Marshall is still within time to seek a further work Visa, but that is a discretionary matter for INZ and is not a foregone conclusion. The risks associated with the present circumstances came to the fore in Rossi v Chief Executive of the Ministry of Business Innovation and Employment [2014] NZHC 2168.

MARSHALL v POLICE [2014] NZHC 2681 [24 October 2014]

in future and you would have forfeited potentially gainful employment in Japan. You had also pre-booked flights to leave New Zealand scheduled for tomorrow. This is a matter therefore requiring urgent attention.

[2] During submissions dealing with my discretion to grant or not bail, it became evident that the Crown might not oppose discharge without conviction given both the nature of the offending and your good character and clean record. Having explored that aspect further with Counsel, on the information before me I provided a tentative indication that would appear to be an appropriate outcome provided that the victim did not oppose such a course. I then adjourned the matter in order for the Crown to take instructions on the victim’s view and whether you would consider a guilty plea given my indication.

[3] It transpires that the victim does not oppose a discharge without conviction and as noted you have now entered a guilty plea given my indication. Given the unusual circumstances, the matter was transferred to the High Court pursuant to s 70(1) of the Criminal Procedure Act on the oral application of your counsel. Your guilty plea was taken and both parties agree I can now sentence you.

[4] In terms of sentence, and I will come back to this, as foreshadowed, I discharge you Mr Marshall without conviction pursuant to s 106(1) of the Sentencing Act 2002 but subject to an order that you make reparation in the sum of $5,000 to be paid to the victim.

[5] I now set out my reasons for the decision to transfer and set out your sentence.

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 Marshall v Police

Details

AGLC: Marshall v Police [2014] NZHC 2681
Case: [2014] NZHC 2681
Decision Date: 24 October 2014

CaseChat Overview and Summary

The case of Marshall v Police involved Bradley George Marshall, who had pleaded guilty to a charge of indecent assault. The court was required to determine whether Marshall should be discharged without conviction or if a different sentence should be imposed. The court also had to consider the urgency of the situation as Marshall had a flight booked to leave New Zealand and a job offer in Japan. The legal issues included the appropriateness of a discharge without conviction, the potential consequences of a conviction, and the need for reparation to the victim. The High Court found that a discharge without conviction was appropriate, given the nature of the offence, Marshall's good character, and the victim's willingness to forgive. However, the court also ordered Marshall to pay $5,000 in reparation to the victim. This decision balanced the need for deterrence and the avoidance of a disproportionate impact on Marshall's future employment prospects. The court transferred the case to the High Court to ensure an urgent resolution, reflecting the complex interplay of personal and legal factors in the case.

The court's reasoning was grounded in the specific circumstances of the case. It noted that the offence, while serious, was not premeditated and occurred when Marshall was heavily intoxicated. The court also emphasised Marshall's young age, lack of prior convictions, and the support from his employer. The victim's forgiveness and willingness to see Marshall given a chance to move forward with his life further influenced the decision. The court was satisfied that a discharge without conviction would serve the interests of justice without unduly stigmatising Marshall. The imposition of a reparation order addressed the need to repair the harm caused to the victim. This decision reflects a balanced approach, considering both the rights of the victim and the potential long-term impact on the offender.

Orders