Marszolek v Police - [2015] NZHC 2858

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000302 [2015] NZHC 2858

BETWEEN
JACEK MARSZOLEK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 November 2015

Appearances:

Dr Michael Kidd for the Appellant
Rebekah Thompson for the Respondent

Judgment:

17 November 2015

JUDGMENT OF MOORE J [Appeal against conviction]

This judgment was delivered by me on 17 November 2015 at 5:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

MARSZOLEK v NEW ZEALAND POLICE [2015] NZHC 2858 [17 November 2015]

Introduction

[1] The appellant, Jacek Marszolek, pleaded guilty in the District Court at

Waitakere on two charges:

(a) performing an indecent act;1 and

(b) refusing to provide a blood specimen.2

[2] On 25 August 2015 Judge Tremewan refused Mr Marszolek’s application for a discharge without conviction. She convicted Mr Marszolek, fining him $450 on each charge and disqualifying him from holding a driver’s licence for six months.

[3] The issue on appeal is whether Mr Marszolek should be granted a discharge without conviction on the basis that the consequences of conviction are disproportionate to the gravity of the offending. The Police oppose the application on the basis that the statutory threshold is not met.

Factual background

[4] On the evening of Saturday, 7 March 2015 Mr Marszolek was next to his car in a public car park behind the Black Salt Bar in New Lynn. There he was seen by a couple who noticed he was partly naked with his genitals exposed. They were shocked and told him to cover himself up.

[5] He refused. Instead, he grabbed his genitals with one hand and shook them at the couple in an offensive way. He then got into the car and drove a short distance down the road. The Police arrived as he was getting out of the car and noticed he exhibited signs of recent alcohol consumption. A roadside breath screening test was administered which revealed a breath/alcohol level in excess of 400 micrograms of alcohol per litre of breath. Mr Marszolek was required to accompany the Police for
the purposes of undergoing an evidential breath test. He refused to provide a sample

1 Crimes Act 1961, s 125(1): maximum penalty two years’ imprisonment.
2 Land Transport Act 1998, s 60(1)(a): three months’ imprisonment, $4,500 fine, minimum period of disqualification six months.

of breath and when he was asked to supply a sample of blood he also refused that request.

Personal circumstances

[6] Mr Marszolek is Polish. He has previously lived in Germany and Australia. He has been in New Zealand since November 2014. He is in a relationship with an Australian woman. Mr Marszolek filed an affidavit in the District Court and in this Court he has filed two statutory declarations; one from himself and the other by his Australian partner.

[7] In his affidavit he described the offending as “spur of the moment”. He had been celebrating his promotion to credit controller. He could give no explanation for why his genitals were exposed.…

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: [2015] NZHC 2858
Decision Date: 17 November 2015

CaseChat Overview and Summary

Jacek Marszolek, the appellant, sought to appeal his conviction for performing an indecent act and for refusing to provide a blood specimen. He sought a discharge without conviction on the basis that the consequences of conviction were disproportionate to the gravity of the offending. The Police opposed the application, arguing that the statutory threshold was not met. The appeal was heard by Moore J at the High Court of New Zealand, Auckland Registry. The court was required to determine the gravity of the offence, consider the direct and indirect consequences of conviction, and assess whether these consequences were out of all proportion to the gravity of the offending. The court was also required to determine whether to exercise its residual discretion to grant a discharge.

The court determined that the indecent act charge carried a maximum penalty of two years’ imprisonment and was deliberate and sustained. The court found that the offending was moderately serious. The court considered the direct and indirect consequences of conviction, including the potential difficulties in re-entering Australia and the impact on employment prospects. However, the court found that the evidence provided was insufficient to support the submission that the consequences of conviction would necessarily mean that Marszolek’s travel and employment prospects would be adversely affected to the extent submitted. The court found that the consequences of conviction for Marszolek were no more severe than those experienced by anyone with a criminal conviction of this sort. The court was not satisfied that the consequences of conviction were out of all proportion to the gravity of the offending and dismissed the appeal against conviction.

The court dismissed the appeal against conviction and upheld the decision of the District Court. The court did not grant a discharge without conviction and the convictions remained in place.

Orders