Padgett v Police - [2017] NZHC 2818

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-133

CRI-2017-409-134 [2017] NZHC 2818

BETWEEN
JOHN PADGETT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 November 2017

Appearances:

J D Lucas for the Appellant
D Matthews for the Defendant

Judgment:

16 November 2017

JUDGMENT OF MANDER J

Introduction

[1] Mr Padgett was sentenced to an effective term of two years and two weeks imprisonment on charges of injuring with intent to injure, unlawful possession of ammunition, possession of a cannabis pipe and disorderly behaviour likely to cause violence.1 He appeals that sentence on the grounds it is manifestly excessive.

The offending

[2] In December 2016, Mr Padgett was found intoxicated in central Timaru. He was given a ride to his accommodation at a backpackers by Police. On his arrival, the
manager of the backpackers asked him to leave due to his intoxication and his failure

1 Police v Padgett [2017] NZDC 22409.

to pay for his stay. Upon leaving he lunged at the owner, pushing him in the chest and verbally abusing him. After being separated by Police, Mr Padgett continued to threaten harm to, and yell obscenities at, the owner. He was charged with disorderly behaviour likely to cause violence. A cannabis pipe was also found in his pocket and he was charged accordingly.

[3] In February 2017, Mr Padgett was at a friend’s house drinking alcohol. His friend was apparently asleep, lying on the couch, when Mr Padgett produced a flick- knife and slashed the top of his friend’s hand, cutting him once. The victim was hospitalised and required stitches.

[4] Mr Padgett was arrested for the knife incident in April. Upon being searched Police found a .308 round of ammunition in his bag. In relation to the knife incident he was initially charged with wounding with intent to injure, but Police agreed to lower the charge to injuring with intent to injure.

Sentencing

[5] On 16 August, Judge Couch gave a sentence indication on the injuring and ammunition charges. Taking the injuring charge as the lead charge, the Judge referred to the Court of Appeal guidance in R v Nuku and R v Taueki.2 He identified the aggravating features as use of a weapon, the vulnerability of the victim, some premeditation “in the sense that it was not provoked or prompted by action of the victim or by any other unexpected event”, extreme violence, and the fact the attack occurred in the victim’s home. Overall his Honour considered the offending fell at the top of band two of Nuku.

[6] From a starting point of two years, four months the Judge indicated he would add a further two months for the ammunition charge. No uplift would be applied in respect of Mr Padgett’s criminal history, which the Judge said was “unrelated and historic”. The Judge indicated the full 25 per cent guilty plea discount would apply, and that there may be further reductions for remorse and/or payment of reparation…

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 Padgett v Police

Details

AGLC: Padgett v Police [2017] NZHC 2818
Case: [2017] NZHC 2818
Decision Date: 16 November 2017

CaseChat Overview and Summary

In Padgett v Police, the appellant, Mr Padgett, appealed his sentence for injuring with intent to injure, unlawful possession of ammunition, possession of a cannabis pipe, and disorderly behaviour likely to cause violence, which resulted in an effective term of two years and two weeks imprisonment. Mr Padgett argued that the sentence was manifestly excessive. The case was heard in the High Court of New Zealand Christchurch Registry.

The legal issues before the court included whether the sentence imposed was manifestly excessive, and if the judge's consideration of factors such as the appellant's criminal history, remorse, and willingness to participate in restorative justice was appropriate. The court needed to determine if the sentence imposed by the lower court was within the range of appropriate sentences for the offending.

The court found that the two-month uplift for the December offending did not lead to a manifestly excessive sentence. The court considered the unrelated nature of the December and February incidents and found that a small uplift was appropriate. The court also found that the sentencing judge did not make an error by not giving a discount for remorse, as the reduction would have only resulted in a month's change to the sentence, and the omission did not render the final sentence manifestly excessive. The court concluded that the two years and two weeks imprisonment sentence was not outside the range available to the sentencing court.

The court dismissed the appeal, finding that Mr Padgett had not demonstrated that the sentence was manifestly unjust.

Orders