R v Marlow Ca158/01

[2001] NZCA 234

IN THE COURT OF APPEAL OF NEW ZEALAND CA158/01

THE QUEEN

V

IAN FRANCIS MARLOW

Hearing:	1 November 2001
Coram:	Blanchard J Ellis J Potter J
Appearances:	Appellant in Person G J Burston for Crown
Judgment:	7 November 2001

JUDGMENT OF THE COURT DELIVERED BY POTTER J

1. Mr Marlow appeals against the sentence imposed on him in the District Court following a guilty verdict on a charge under s.228(1)(a) of the Crimes Act, that he unlawfully and without colour of right but not so as to be guilty of theft, took a skateboard, the property of Anthony Neilsen.  The Judge convicted Mr Marlow and ordered him to come up for sentence if called upon within 12 months.  He ordered Mr Marlow to pay $400 towards the costs of the prosecution.

2. Although Mr Marlow appeals against conviction and sentence, his appeal is essentially against sentence, as he accepted at the hearing.  He considers he should have been discharged without conviction under s.19 of the Criminal Justice Act.  He also challenges the order for payment of costs as being wrong in law and in principle.

Background Facts

1. Mr Marlow’s property backs on to the grounds of the Rewa Rewa School in Newlands, Wellington.  He has lived there for 27 years.  He has experienced difficulties and frustration over a period of time from children’s conduct in the school playground, for example the throwing of stones and bark chips at his house.  The school has agreed to assist in alleviating the problem, by moving the playground to another area of the school grounds.  Mr Marlow described that work as partly completed.  On Sunday 30 May 2000 at about 11 a.m. Mr Marlow climbed over the back fence of his property to speak to Anthony Neilsen and a friend who were skate boarding in the school grounds.  Mr Marlow said he had heard some debris arrive on the roof of the garden shed just prior to the incident.  He was rather agitated.  He confronted the boys.  He took the skateboard.  He threw it into the air and allowed it to crash on the ground.  He then picked it up and took it to his home.  The father of one of the boys called later in the day to recover the skateboard.  Mr Marlow did not give it to him.  He considers the father “unilaterally terminated” the conversation when he “stormed off” having declined to give details of identity to Mr Marlow.  The skateboard was later recovered by the Police.

2. Following the jury trial Mr Marlow was acquitted on charges of assault of Anthony Neilsen and theft of the skateboard.  He was found guilty on the lesser conversion charge.

Grounds of Appeal

1. Mr Marlow challenges the sentence imposed on him on the grounds that he has no other previous criminal or traffic convictions, and that this was a minor dishonesty offence upon which a conviction should not have been entered.  He claims that the conviction prejudices his employment opportunities.  He considers that the consequences of the conviction outweigh the seriousness of the offence.

2. As to costs Mr Marlow emphasises his right to defend the charges brought against him, which he did successfully on two of the charges.  He considers it unjust that he should be ordered to pay costs in the circumstances.

3. Mr Marlow’s written points on appeal also included allegations that certain of the witnesses at his trial did not tell the truth.  That is a separate issue in respect of which he has apparently made separate complaint.

4. He is critical of a number of the observations made by the District Court Judge on sentencing, which took place on 18 May 2001, the day following conclusion of the trial.

District Court Sentencing

1. The Judge acknowledged that Mr Marlow was a man of the age of 51 (which Mr Marlow says is incorrect – he was 53), with no previous convictions and that he has a supportive marriage and family.  He acknowledged the frustration felt by Mr Marlow over a period of time with regard to local children throwing items from the school playground on to his house, and that the offence of which Mr Marlow was found guilty was minor in degree.  He expressed the view that the matter could and should have been able to be resolved earlier and much more simply than by a two day jury trial.  (Mr Marlow contests that, and points out that the charge of which he was convicted was not laid until after depositions on 8 December 2000).  The Judge then recorded some of the somewhat colourful language used by Mr Marlow in giving evidence at his trial, and acknowledged that through his counsel he had tendered an apology for his behaviour in Court.  However, the Judge observed that it was indicative of an attitude Mr Marlow had towards everyone involved in the prosecution, the investigation of it and the trial, which the Judge saw as an impediment to having the matter resolved more simply and much earlier.

2. The Judge considered that the appropriate penalty should recognise that the offence is minor in degree, but in the circumstances was not prepared to accept the submissions on behalf of Mr Marlow, that he should be discharged under s.19 of the Criminal Justice Act.  He was not satisfied that the consequences of a conviction far outweighed the seriousness of the offence.

Decision

1. Section 19 of the Criminal Justice Act confers on the sentencing Judge a discretion.  It is an unfettered discretion (R v Roberts [1991] 1 NZLR 205; Halligan v Police [1955] NZLR 1185). An appellate Court will not interfere with the exercise by the sentencing Judge of his discretion unless satisfied that he took account of irrelevant considerations, failed to take account of relevant considerations, or was plainly wrong. The over-riding consideration must be whether the direct or indirect consequences of the conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence (R v Roberts).

2. We are not satisfied that the Judge wrongly exercised his sentencing discretion.  He acknowledged Mr Marlow’s conviction-free, stable background.  He acknowledged the frustration, which clearly Mr Marlow has keenly felt.  He presided over the trial, and formed the view that the attitude Mr Marlow displayed would have been an impediment to seeking resolution of the matter at a much earlier stage.  We do not consider that observation fails to take account of the later addition of the conversion charge.  The Judge obviously concluded that Mr Marlow’s approach from the outset had prevented an early and simple resolution of the matter.  The Judge also considered the effect of a conviction on Mr Marlow’s re-employment opportunities.  He stated that it would be readily recognisable that the penalty imposed reflected an offence that is minor in degree.

3. In the circumstances, the Judge was not wrong to exercise his discretion against granting a s.19 discharge.  There was an appropriate basis on which to conclude that the consequences of a conviction did not outweigh the seriousness of the offence.  The sentence was a considered one, which recognised the continuing nature of the situation which gave rise to the appellant being charged.  Nor was the Judge wrong to order payment of costs, a matter also within his discretion.

4. Accordingly, the appeal is dismissed.

Solicitors

Crown Solicitor, Wellington