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Parfoot v R

Parfoot v R

Case [2018] NZHC 2702 18 October 2018

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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SECTIONS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-488-20

[2018] NZHC 2702

BETWEEN
ANTHONY CHARLES PARFOOT

Applicant

AND

THE QUEEN

Respondent

Hearing: 15 October 2018

Counsel:

S Thode for applicant

R K Thomson for Respondent

Judgment:

18 October 2018

JUDGMENT OF KATZ J

This judgment was delivered by me on 18 October 2018 at 3.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Thode Utting & Co, Auckland
Crown Law, Wellington

PARFOOT v THE QUEEN [2018] NZHC 2702 [18 October 2018]

Introduction

[1] Anthony Parfoot has been convicted of sexually violating and indecently assaulting a 14-year-old girl.1 The conviction followed a Judge-alone trial before Judge BA Gibson in the District Court at Kaikohe. Mr Parfoot was sentenced to two years and nine months’ imprisonment.2 He appeals his conviction and sentence.

[2] Mrs Thode, on behalf of Mr Parfoot, submitted that the Judge was wrong not to grant a pre-trial application to change his election from a Judge-alone trial to a jury trial. She further submitted that the Judge erred in fact and law in entering convictions on both charges.

[3] The issue arising on the sentence appeal is whether the sentence was manifestly unjust.

Facts of the offending

[4] The facts of the offending, as outlined in the Conviction Judgment, are as follows.

[5] The offending occurred on 6 February 2016. The victim was unknown to Mr Parfoot. She had travelled to his property in Northland from Auckland, with a friend of a similar age and her friend’s parents. It was arranged that the group would stay at Mr Parfoot’s address overnight. Mr Parfoot also had an adult friend, Ms Cunningham, staying with him.

[6] A considerable amount of drinking occurred during the evening. Mr Parfoot’s evidence was that by the time he retired for bed he had consumed 10 bottles of Heineken. He was sufficiently intoxicated that he needed assistance climbing the stairs. Both 14-year-old girls were also drinking—beer and the blended spirit Cody’s.

[7] Mr Parfoot was the first to go to bed. His bedroom was connected to the room in which the victim was to spend the night by a shared bathroom.

1 R v Parfoot [2018] NZDC 4453 [Conviction Judgment].
2 R v Parfoot [2018] NZDC 11578 [Sentencing Notes].

[8] The victim’s evidence was that she had been the last to retire to bed. She went to the bathroom and while in the bathroom Mr Parfoot came in and touched her breasts. Her evidence was that Mr Parfoot removed her bra, took down her pants and underwear, and touched the middle of her vagina with his fingers. He did not fully penetrate her. He then turned her around so that he was behind her. The victim protested, pushed Mr Parfoot off and put on her clothes. She left the bathroom.

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 Parfoot v R

Details

AGLC: Parfoot v R [2018] NZHC 2702
Case: [2018] NZHC 2702
Decision Date: 18 October 2018

CaseChat Overview and Summary

In this case, the applicant, Anthony Parfoot, appeals against his conviction and sentence for sexually violating and indecently assaulting a 14-year-old girl. The applicant was convicted following a Judge-alone trial and was sentenced to two years and nine months’ imprisonment. The applicant argues that the Judge should have granted a pre-trial application to change his election from a Judge-alone trial to a jury trial. He further argues that the Judge erred in fact and law in entering convictions on both charges. The applicant also appeals the sentence imposed, arguing that it was manifestly excessive. The court held that the appeal against conviction and sentence must fail. The court found that the Judge did not err in his assessment of the evidence and that the applicant had not demonstrated that a miscarriage of justice had occurred. The court also found that the sentence imposed was not manifestly excessive and that the presumption of imprisonment for a sexual violation conviction had not been rebutted.

Orders