Marshall v Police
[2014] NZHC 2681
•24 October 2014
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 RespondentJudgment:
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.
Background
[6] You currently have a contract to return to New Zealand and undertake work in a Wanaka ski business. You have had, since your arrival in New Zealand, a flight booked to depart New Zealand for the United Kingdom tomorrow, 25 October 2014.
[7] You currently have an offer of employment in Japan and you have applied for and obtained a working Visa to work there for the winter season. You have no criminal convictions and you have provided a statement to the police to explain the incident for which you have been charged.
The alleged offending
[8] Mr Marshall you met a female in a bar in Wanaka. After the both of you departed the bar you went to the female’s apartment. The occupant of this address is the victim. You and your female associate have entered the apartment and gone to the female’s room. At about 4.30 am you got out of bed, went to the bathroom and upon exiting the bathroom went into the other bedroom where the victim was lying in bed with her four year old daughter. You then hopped into the double bed beside a child, reached over the child and placed your hand underneath the victim’s underwear and rubbed her left buttock. The victim then ran out of the room after grabbing her daughter yelling out to the other female present in the apartment. The other female has arisen out of bed and located you asleep in the victim’s bed.
[9] When spoken to you admitted going to the address and staying there with your female associate but did not recall the incident as you say you were too intoxicated.
[10] You have since made a full statement to the police explaining your version of the events. You have also written an apology to the complainant for the effect of the incident on her. It is also said that the local police were supportive of trying to resolve this matter by way of reduction of the charge and an offer of diversion and an emotional harm payment to the complainant but that was not supported by Police National Headquarters.
Bail variation
[11] As I have said, you initially sought a variation of your bail so that your passport may be returned to him. Your position is complicated because your work has finished and you cannot remain here on the current work permit beyond the
November and you expected to depart from New Zealand to comply with the requirements of that work permit.
[12] You were, as I have said, prepared to pay into counsel’s trust account the sum
of $5,000 to offer as a deposit to be paid into the Court as a condition of bail.
[13] One of the relevant factors to my determination of whether bail should be granted is the likely sentence. In the course of hearing argument (and in light of the information supplied to me), it became evident that you might be eligible for discharge without conviction. I indicated as much. As noted above, steps were taken to assess whether the victim would object to such a sentence and whether you might plead guilty in light of my indication. Both have been answered in the affirmative.
Transfer
[14] It was first necessary to bring the charge within the jurisdiction of this Court. As the charge is a category 3 offence, s 70 Criminal Procedure Act 2011 (CPA) dealing with transfer applies. It states:
70 High Court Judge may order proceedings for category 2 or 3 offence be tried in High Court
(1) This section applies if a defendant is charged with a category 2 or 3 offence, and a High Court Judge has not made an order under section 68 (whether or not the offence is a protocol offence).
(2) The defendant or the prosecutor may apply to a High Court Judge for an order directing that the defendant be tried in the High Court.
(3) The prosecutor and the defendant may make written submissions in relation to an application under subsection (2), but no party is entitled to be heard.
(4) The Judge must determine whether the defendant is to be tried in the
District Court or the High Court and make an order accordingly.
(5) Before making an order under subsection (4) the Judge must consider-
(a) any information provided by the District Court about its capacity to hold the trial; and
(b) any submissions from the prosecutor and the defendant; and
(c) the matters listed in section 67(4)(b).
(6) No party may appeal against an order under subsection (4).
[15] The matters listed at s 67 which are relevantly also state:
67 District Court Judge may recommend level of trial court for protocol offence
(1) If the prosecutor identifies the offence charged as a protocol offence, under section 56(1)(f) or otherwise, a District Court Judge may-
(a) decline to make a recommendation for the purposes of section
68, if he or she considers that the offence is not a protocol offence; or
(b) if the Judge considers that the offence is a protocol offence,-
(i) consider whether the trial should be held in the District
Court or the High Court; and
(ii)make a recommendation for the purposes of section 68.
(2) The District Court Judge must make a recommendation under subsection (1)(b) if-
(a) the prosecutor or the defendant seeks to have the trial held in the High Court; or
(b) the Judge considers that not all of the proceedings that are awaiting trial in the District Court at the place at which the trial would be held are able to be heard within a reasonable timeframe.
(3) For the purposes of subsection (1), the prosecutor and the defendant may make written submissions to the Judge, but no party is entitled to be heard.
(4) Before making a recommendation under subsection (1), the Judge must-
(a) consider any submissions from the prosecutor and the defendant, including anything submitted to the court under section 56(1)(f)(i) or otherwise provided to the court under section 57(2)(a); and
(b) consider the following matters:
(i) the nature and seriousness of the offence charged; and
(ii) the complexity of the factual and legal issues likely to arise in the proceeding; and
(iii) the likelihood that the proceeding will be of wide public concern; and
(iv) any need for enhanced security or facilities during the trial that are not readily available in the District Court; and
(v) the desirability of the prompt disposal of trials and the respective workloads of the High Court and the District Court in the locality of the trial; and
(vi) the likelihood of a sentence beyond the jurisdiction of the
District Court; and
(vii) the interests of justice generally.
[16] While ordinarily this is not a matter that would be heard in this Court, I am in no doubt that the interests of justice demand an urgent response to the present facts, namely the potential jeopardy faced by you unless the matter could be resolved with alacrity either in terms of bail or in terms of sentence so that you could know where stand one way or another.
[17] The matter was transferred to the High Court accordingly.
Sentence
[18] The facts of the offending are essayed above. The victim’s distraught response on the night to the presence of a stranger in her bed and the indecent assault is entirely understandable. It is a matter that required a prosecutorial response. But it was at the low end of the scale of offending of this nature and importantly it was clearly not premeditated. In this regard, I have read the statement of the female associate and her version of the events that unfolded. It is quite clear that you Mr Marshall were not in any way aggressive toward her or expectant of any particular outcome. Indeed you were careful of the boundaries set by her throughout your time together and that is a credit to you. She also confirms that she found you “passed out” on the victim’s bed, strongly suggesting that you were not fully cognisant of the gravity of what you had done.
[19] There is then your very good character. You are still young, only 24. You have no convictions of any description. Plainly your actions were out of character. I
also note that you have a contract to return to work in Wanaka next year and your employer has offered a strong supportive reference.
[20] Finally, the victim has generously endorsed a discharge without conviction on the basis that you are still young and she believes that you have learnt your lesson. I am also advised that she is willing to forgive him, and says that you need a chance to enjoy your life and see the world.
[21] Taking both the relevant features of the offending and your personal characteristics, a sentence of imprisonment would be disproportionate in terms of the sentencing principles. Indeed I am confident that your actions were a one-off aberration of a young man. The need for deterrence is minimal. Your relatively early guilty plea has also avoided the need for a trial, and thereby avoided what would have been a traumatic event for the victim.
[22] I am also satisfied in terms of s 106 that the proper response is one of discharge without conviction. A conviction would have very serious consequences for you as a young man whose primary source of current employment is working the various ski fields around the world. While your offending is serious, it must be understood in the context I have just described, and a conviction in my view would represent a disproportionate blight on your record.
[23] I think, however, that there is a demonstrable need for you to repair the emotional harm that you have done and I am going to impose, as I said, a reparation order of $5,000 to be paid to the victim. I understand that those monies are already available for distribution out of your lawyer’s account and so I expect that to be done forthwith.
[24] On that basis please stand Mr Marshall.
[25] On one charge of indecent assault pursuant to s 135 of the Crimes Act you are discharged without conviction but you are ordered to pay the sum of $5,000 to the victim forthwith.
Solicitors:
Southern Law, Arrowtown
Raymond Donnelly & Co, Christchurch
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