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Partridge v The Queen

Partridge v The Queen

Case [2017] NZHC 2440 5 October 2017

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-000079 [2017] NZHC 2440

BETWEEN
GRAHAM STEPHEN PARTRIDGE

Appellant

AND

THE QUEEN Respondent

Hearing: 28 September 2017

Appearances:

E Huda for Appellant
C C White for Crown

Judgment:

5 October 2017

JUDGMENT OF GENDALL J

PARTRIDGE v THE QUEEN [2017] NZHC 2440 [5 October 2017]

Summary of appeal

[1] The appellant has pleaded guilty in the District Court at Christchurch to four counts of doing an indecent act on a young person under s 134(3) of the Crimes Act
1961, and one count of doing an indecent act in a public place under s 125(1) of the

Crimes Act.

[2] On 23 May 2017, he was sentenced by Judge O’Driscoll to 15 months’

imprisonment.1

[3] The appellant appeals against his sentence on two bases:

(a) The starting point adopted by the Judge for all offending was too high;

(b) The Judge erred by failing to impose a sentence of home detention.

Principles on appeal

[4] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different
sentence should be imposed.2 The Court will not engage in an exercise which

amounts to mere tinkering with the sentence.3

[5] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is
“manifestly excessive” that the Court should interfere with the exercise of the

1      R v Partridge [2017] NZDC 10818.
2      Criminal Procedure Act 2011, ss 250(2) and 250(3).
3      Maihi v R [2013] NZCA 69.

Judge’s discretion. As Toogood J said (citing Ripia v R4) in Larkin v Ministry of

Development:5

[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[6] The focus on most appeals is thus on the end sentence. In Tutakangahau v R,6

the Court of Appeal held that:7

…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.

[7] A decision to grant home detention in lieu of a short sentence of imprisonment is a discretionary one. Therefore, on appeal the Court’s primary focus is on the identification of any error, bearing in mind the discretionary nature of such decision.8 Such an error may be failure to take into account…

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 Partridge v The Queen

Details

AGLC: Partridge v The Queen [2017] NZHC 2440
Case: [2017] NZHC 2440
Decision Date: 5 October 2017

CaseChat Overview and Summary

The appellant, Graham Stephen Partridge, appealed against his sentence imposed by the District Court at Christchurch, arguing that the starting point adopted by the Judge was too high and that the Judge erred by not imposing a sentence of home detention. The appellant pleaded guilty to four counts of doing an indecent act on a young person and one count of doing an indecent act in a public place. The Court of Appeal was required to determine whether the sentence imposed by the District Court was manifestly excessive and if the Judge erred in not substituting a sentence of home detention for the appellant.

The Court of Appeal considered the appellant's first ground of appeal, which was that the starting point of 20 months' imprisonment adopted by the Judge was too high. The Court noted that the appellant's offending was serious, involving multiple instances of indecent acts on two teenage sisters over a period of time. The Court found that the starting point was not out of range, considering the nature of the offending and the appellant's previous convictions for similar offences.

The Court of Appeal then examined the appellant's second ground of appeal, which was that the Judge erred by not imposing a sentence of home detention. The Court acknowledged that the Judge was aware of the Child Protection Act and its implications for the appellant. However, the Court found that the Judge had considered other relevant factors and concluded that home detention would not achieve the purposes and principles of sentencing in this case. The Court held that the decision not to substitute a sentence of home detention was properly made, having regard to the relevant sentencing purposes and principles.

The Court of Appeal dismissed the appeal, finding that the appellant had failed to show that the Judge erred when imposing sentence. The Court held that the sentence imposed by the District Court was not manifestly excessive and that the Judge had properly exercised his discretion in deciding not to impose a sentence of home detention.

Orders