Partridge v The Queen
[2015] NZCA 504
•13 October 2015 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA526/2015 [2015] NZCA 504 |
| BETWEEN | RORY DAMIEN PARTRIDGE |
| AND | THE QUEEN |
| Hearing: | 12 October 2015 |
Court: | Ellen France P, Asher and Collins JJ |
Counsel: | Applicant in person (via videolink) |
Judgment: | 13 October 2015 at 10.30 am |
Reasons: | 27 October 2015 |
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
On 13 October 2015 we issued a results judgment dismissing Mr Partridge’s application for leave to appeal a decision made by Judge Turner in the Invercargill District Court.[1] In his decision, Judge Turner dismissed Mr Partridge’s application to transfer his sentencing from Invercargill to the Hutt Valley District Court.[2] This judgment explains the reasons for our decision.
Background
[1]Partridge v R [2015] NZCA 486.
[2]New Zealand Police v Partridge [2015] NZDC 17765.
Mr Partridge was initially charged with five charges of burglary and one of theft in Gore on various dates between 29 December 2014 and 29 January 2015. On 24 June 2015, Mr Partridge was granted leave to elect trial by jury in relation to those charges.[3]
[3]New Zealand Police v Partridge DC Invercargill CRI-2015-17-89, 24 June 2015.
On 31 August 2015, Mr Partridge pleaded guilty to two burglary charges and three charges of receiving stolen property. He was to be sentenced in the Invercargill District Court on 21 October 2015. Mr Partridge applied to have his sentencing transferred to the Hutt Valley District Court on the basis that members of his family live in Lower Hutt, are important to him and can provide him with support during the sentencing process.
In addition to seeking leave to appeal the decision declining his application to transfer his sentencing, Mr Partridge sought leave to appeal Judge Turner’s concurrent decision declining to call for a report on the suitability of Mr Partridge being sentenced to home detention.[4] Mr Partridge abandoned his application to appeal that aspect of Judge Turner’s decision.
Jurisdiction
[4]New Zealand Police v Partridge, above n 2.
Although we have determined Mr Partridge’s application on its merits, we have reservations about whether or not there is jurisdiction for this Court to hear Mr Partridge’s appeal. We will briefly set out our reasons for our reservations.
Applications to transfer proceedings are governed by s 157 of the Criminal Procedure Act 2011 (the Act).[5] The relevant provisions of s 157 of the Act state:
157Transfer of proceedings to court at different place or different sitting
(1)A District Court Judge may, … on the application of … the defendant, transfer a proceeding to a District Court at a place or sitting other than that determined in accordance with sections 35 … or 73 … if the court is satisfied that it is in the interests of justice that the proceeding be heard at that other place or sitting.
…
(4)Except as provided in sections 217 and 218, no person may object to any order under this section.
[5]We assume, without deciding, s 157 of the Criminal Procedure Act 2011 applies to Mr Partridge’s application.
Sections 35 and 73 of the Act concern the way courts deal with proceedings before trial.
Sections 217 and 218 of the Act govern appeals from pre-trial decisions in jury trial cases. Under s 217(2)(h) the defendant or prosecutor may, with the leave of the first appeal court, appeal to that court from a decision “refusing to make an order under s 157 (to transfer proceedings to a court at another place)”. A similar provision can be found in s 218(2)(b) of the Act concerning the right of a defendant only to appeal pre-trial decisions in jury trial cases.
In the present case, Judge Turner’s decision declining Mr Partridge’s application to transfer his sentencing to the Hutt Valley District Court was not a pre‑trial decision as there ceased to be any trial when Mr Partridge pleaded guilty. Accordingly, ss 217 and 218 of the Act are not engaged.
It is possible for Mr Partridge to argue that his concerns are amenable to examination as part of a sentence appeal. This argument would be based on the broad definition of “sentence” in s 212 of the Act. The term “sentence” is defined to include “any method of disposing of a case following conviction”. However, Mr Partridge would face real difficulties in arguing the venue of his sentencing materially impacted upon any sentence imposed.
Merits
As foreshadowed, we have dismissed Mr Partridge’s application by focusing on the merits of his proposed appeal.
Judge Turner based his decision on two grounds:
(a)the victims of Mr Partridge’s offending should have the opportunity to participate in a restorative justice conference and/or attend and participate in the proceedings when Mr Partridge is sentenced;[6] and
(b)the adage that justice should be dispensed in the area in which the offending occurred applies in this case.[7]
[6]At [3].
[7]At [4].
The Crown advised the Court the victims of Mr Partridge’s offending do not wish to participate in a restorative justice conference or attend Mr Partridge’s sentencing. The interests of Mr Partridge’s victims are therefore no longer directly relevant.
What is relevant is that when Judge Turner exercised his discretion to decline Mr Partridge’s change of venue application he recognised a case should generally be determined in the community in which the offending occurred. In addition, in the present case, Mr Partridge’s co-defendant, Mr Tai, was sentenced in the Invercargill District Court.[8] Mr Partridge acknowledged this in itself is a sound reason for him to be also sentenced by the same Judge.
[8]R v Tai [2015] NZDC 17356.
In assessing the grounds of Mr Partridge’s application, we note:
(a)He is now 24 years old and has a number of convictions. Mr Partridge’s current offending occurred after he left his parents’ address in Lower Hutt where he had been sentenced to a term of home detention.
(b)Mr Partridge’s family has to date been very supportive of him. They could continue to provide support during the sentencing process by providing any written material they wished in support of their son. It may also have been possible for Mr Partridge’s family to participate in the sentencing hearing by way of an audio visual link.
Ultimately, although one of the grounds relied upon by Judge Turner was no longer relevant, we could see no basis for interfering with the way he exercised his discretion. For these reasons the application for leave to appeal was dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
0
0
0