MARSH v POLICE [2019] NZHC 2238

MARSH v POLICE [2019] NZHC 2238 [6 September 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2019-419-000057[2019] NZHC 2238BETWEEN WIREMU KORI MARSHAppellantAND NEW ZEALAND POLICERespondentHearing: 6 September 2019Counsel: GA Walsh for AppellantSF Gilbert for RespondentJudgment: 6 September 2019JUDGMENT OF DOWNS JThis judgment was delivered by me on Friday, 6 September 2019 at 3.30 pm.Registrar/Deputy RegistrarSolicitors/Counsel:GA Walsh, Hamilton.Crown Solicitor, Hamilton.[1] Mr Wiremu Marsh and Mr Cody Griffin attacked another prisoner at WaikeriaPrison. Both men repeatedly punched the victim to the head. The victim retreatedacross the exercise yard. Both men continued to punch him until guards intervened.Mr Marsh was serving a three and a half year sentence for aggravated robbery.1Mr Griffin was serving a 10-year, nine-month sentence for manslaughter.Judge B P Callaghan sentenced both men for assault with intent to injure. The Judgeadded three months to Mr Griffin's sentence. He added nine months to Mr Marsh'ssentence.[2] Mr Marsh appeals. Mr Marsh contends his sentence is manifestly excessive asit is longer than Mr Griffin's. Mr Marsh argues his sentence violates the parityprinciple, which, put broadly, requires co-offenders be treated consistently. Or, as theCourt of Appeal has observed:2... it is a principle of sentencing, and generally desirable, that there should beconsistency of sentences between similar offenders committing similaroffences in similar circumstances. However, not every difference betweensentences or starting points for co-defendants will support an appeal on thegrounds of disparity. It is not enough that an offender thinks he has beenunfairly treated. The question is whether there is a real justification for anygrievance – that will be the case if a reasonably minded independent observer,aware of all the circumstances of the offence and of the offenders, would thinkthat something had gone wrong with the sentencing process.[3] The Judge adopted the same starting point for each defendant: 15 months. TheJudge added four months for Mr Marsh's record for violence, and then deducted16 percent for Mr Marsh's guilty plea. It is not clear whether Mr Griffin received anuplift for his record. Mr Griffin received a 25 percent discount for a prompt (andearlier) guilty plea.[4] The Judge then considered totality. He concluded Mr Griffin's long prisonsentence meant an extension of only three months was required. The Judge concludedMr Marsh's sentence should be extended by nine months. Mr Marsh argues thisreasoning does not justify the six-month difference.1 Both men's sentences were for second-strike offences. Assault with intent to injure is not a strikeoffence. Mr Marsh accepts the cumulative term for it raises no parole issue germane to the appeal.2 O'Sullivan v R [2015] NZCA 147 at [21].[5] This area can be difficult, as the following examples suggest.[6] In Pearce v R,3 the defendant and co-defendant acted in concert to commitserious drug offences. The co-defendant received a four-year prison sentence. Thedefendant received an eight-year prison sentence. The Court of Appeal dismissed theappeal because the co-defendant's sentence was made cumulative on an existingsentence of six years' imprisonment. It concluded the totality principle justified thedifference between the offenders' sentences.[7] In R v Eketone-Mahara,4 the defendant and co-defendant committedaggravated robbery and other serious offences. The defendant received a sentence offive years' imprisonment. The co-defendant received three and a half years'imprisonment. Their culpability was the same, and there was little difference inpersonal circumstances. The Court of Appeal reduced the defendant's sentence tothree and a half years. It concluded a reasonably minded, independent observer wouldconsider the process had miscarried.[8] In van Silfhout v Police,5 the defendant and co-defendant attacked anotherinmate in an exercise yard. One Judge sentenced the co-defendant to a term of sixmonths' imprisonment. Another Judge sentenced the defendant to a term of12 months' imprisonment. The High Court was seemingly untroubled by thesedifferent outcomes. However, it reduced the defendant's sentence for an unrelatedreason.[9] In the recent case of Waru v R,6 the defendant and three co-defendants attackedprison officers. All four offenders were then serving significant terms ofimprisonment. The defendant had a weapon, but the co-defendants knew that. Theoffending was premeditated. There was little to distinguish the offenders in terms ofrole. And, all pleaded guilty. The defendant received a sentence of seven years and10 months' imprisonment. The co-defendants received sentences between three yearsand 10 months' imprisonment and three years and eight months' imprisonment.3 Pearce v R [2014] NZCA 388.4 R v Eketone-Mahara [2011] NZCA 71.5 Silfhout v Police HC Tauranga CRI-2011-470-22, 2 September 2011.6 Waru v R [2019] NZCA 347.[10] After "anxious consideration", the Court of Appeal concluded "a reasonablyminded independent observer [would] believe that something had gone wrong withthe administration of justice".7 The Court reduced "the disparity to a justifiable level",by reducing the defendant's sentence by a year to six years and 10 months'imprisonment.8[11] Mr Marsh's situation is most like Pearce v R, in that the totality principle hasinfluenced the length of a cumulative sentence to avoid what may otherwise be adisproportionately severe response. And, Mr Griffin pleaded guilty earlier thanMr Marsh. For these reasons, the requisite observer would not consider somethinghad gone awry with Judge Callaghan's approach.[12] The appeal is dismissed...Downs J7 Waru v R, above n 6, at [39].8 At [41].