Partridge v The Queen
[2017] NZHC 2440
•5 October 2017
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 CrownJudgment:
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 a relevant consideration or taking into account an irrelevant consideration, however, the weight to be given to each factor is properly at the discretion of the court below.9 The court below must approach the question in a principled manner. It must be cautious not to artificially manipulate the sentence so as to bring the end starting point within the range amenable to a sentence of home detention.10 In Fairbrother v R, the Court of Appeal discussed the two situations in which an appeal against a failure to grant home detention may be brought:11
[29] Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.
[30] That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered
4 Ripia v R [2011] NZCA 101 at [15].
5 Larkin v Ministry of Development [2015] NZHC 680.
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
7 At [36].
8 Doolan v R [2011] NZCA 542 at [39].
9 McConnel v R [2013] NZCA 303 at [15].
10 R v Edwards [2006] 3 NZLR 180 (CA); R v Hill [2008] 2 NZLR 381 (CA).
11 Fairbrother v R [2013] NZCA 340 (footnotes omitted).
and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
District Court Decision
[8] Judge O’Driscoll in the District Court in his sentencing notes began by outlining the factual circumstances of the offending. This involved multiple instances of the appellant masturbating in front of two teenage sisters, who were 14 and 16 respectively at the time of the offending. The offending took place at various times between February and September 2016. Each of the four incidents reflected in the charges under s 134(3) involved the appellant masturbating in front of one or both minors while they were in his car. On two occasions, this occurred immediately after the girls’ father exited the vehicle. On the last occasion, in September 2016, the appellant masturbated whilst driving one of the sisters, and continued to do so after asking her to steer the car for him. The single charge under s 125(1) related to an occasion when the appellant, who had pulled his car over to the sidewalk down which the older sister was walking, began to masturbate in her presence.
[9] The Judge considered that the purposes of deterrence, accountability, and protection of the community were squarely engaged by the offending. He considered that this was serious offending, involving a high degree of culpability, given the appellant’s previous related history of indecent offending, and the length of time over which this offending occurred. Aggravating factors also included the age and number of the victims, and the harmful effects suffered as a result of the offending.
[10] Taking into account all the relevant circumstances of the offending, the Judge considered that the appropriate starting point was one of 20 months’ imprisonment. Against that, the appellant was entitled to a 25 per cent credit for early guilty pleas.12
[11] That brought the end sentence to 15 months’ imprisonment. It therefore became necessary for the Judge to consider the possibility of home detention. Referring to the relevant sentencing principles and the appellant’s previous
sentencing history, Judge O’Driscoll declined to commute the appellant’s sentence of
imprisonment to home detention.
Was the starting point too high?
[12] The appellant’s first ground of appeal is that the starting point of 20 months adopted by Judge O’Driscoll was too high, such that the end sentence was manifestly excessive. The appellant submits that a principled consideration of the offending in light of comparable case law should have led the Judge to adopt a starting point of approximately 16 months’ imprisonment.
[13] Charges under s 134(3) (doing an indecent act on a young person), and s
125(1) (doing an indecent act in a public place) may both involve indecency of the kind exhibited here. The difference is the relative seriousness, reflected in the different maximum penalties: seven years’ imprisonment for the former, and two years’ imprisonment for the latter.
[14] The appellant endeavoured to submit here that it is perhaps arguable whether he is even criminally liable under s 134(3). In this respect, he emphasises the language of the provision, which characterises the indecent act as being done “on” a young person. This concept has been discussed in Y v R.13 There, the Supreme Court elaborated on the circumstances where the “with or on” test in relation to the doing of an indecent act on a young person can be seen as met, in a situation where no
physical touching takes place. The mere presence of a minor is not sufficient. There must be something more, for example a degree of control or influence exerted by the offender. On the facts here, the appellant contends that his offending arguably does not meet this standard, and might more properly have been dealt with by way of charges under s 125.
[15] In this case, I am not required, however, to make any finding as to that test or its application to the appellant’s offending. This appeal is one against sentence only. I do not accept that the appellant’s offending must necessarily be viewed as being only serious enough to fall under s 125. The charges were laid under s 134(3), and
the appellant pleaded guilty to those charges. No argument has been made on the basis that those charges were improperly laid. Any analysis of the seriousness of the appellant’s offending must be principled. And, any sentence must be commensurate with the ascertained level of seriousness, but I do not accept that it must be viewed as if it fell within a lesser category of offending.
[16] The appellant then cites a number of Court of Appeal cases which are said to demonstrate that the starting point reached here was too high.14 Hosking v R was a case involving five charges under s 125.15 To that extent, as I see the position, it immediately differs from the present case, where four of the five indecency charges are laid under s 134(3). In Hosking, two of the charges related to the appellant
masturbating to the point of ejaculation near a school playground. The other charges involved the appellant exposing his penis or handling it in some way in other public places. On appeal, the starting point of 15 months’ imprisonment was reduced to 12 months. The offending reflected aggravating factors of masturbation, ejaculation, and behavioural changes observed in the young girls affected. Given the fact that this case involved charges laid only under s 125, I consider it to be of limited utility here.
[17] R v S involved one representative charge of indecent assault on a 15 year old girl under s 135 of the Crimes Act.16 During a three month period in 2004, the appellant indecently assaulted the complainant on approximately 10 occasions, by briefly touching her breasts and buttocks over her clothing. On appeal, a starting point of two years six months was reduced to 18 months. Again, this case is of limited assistance, given the differences in the charge laid, the number of charges
and victims, and the nature of the offending itself. I agree with the respondent that it is far from clear that the offending in the present case was less serious than this, given the sheer differences in the offending overall.
[18] Masei v R was a case involving charges under s 134(3).17 The appellant’s
offending there was against a 15 year old Japanese international student who had
14 Hosking v R [2012] NZCA 460; R v S (CA465/05) CA465/05, 11 April 2006; Masei v R [2016] NZCA 481.
15 Hosking v R, above n 14.
16 R v S, above n 14.
17 Masei v R, above n 14.
been billeted with the appellant’s family and for whom English was a second language. The offending involved the appellant inappropriately touching the complainant on her breasts through her pyjamas, as well as her genital area over her underpants, and attempts by him to remove her clothes. On appeal, a starting point of
21 months’ imprisonment (which reflected the significant breaches of trust and predation on a vulnerable victim), was upheld. The appellant here also refers to comments made by that Court that, ordinarily, similar offending against a 15 year old would involve a starting point in the range of 18 months’ imprisonment.
[19] In the circumstances, I am not persuaded that the starting point of 20 months adopted by Judge O’Driscoll was out of range, such that the end sentence was manifestly excessive. This offending was undoubtedly serious, although perhaps at the lower end of all offending encompassed by s 134(3). The Judge was not obliged to treat the offending as if it were offending under s 125. It involved both premeditated and opportunistic offending over a lengthy time period. Whilst there was no direct physical interference with the two victims, they were in confined proximity to the appellant and accordingly in a vulnerable position. Finally, the global starting point reached in this case reflected the appellant’s previous convictions for indecency offending, which would otherwise have required an uplift to the general starting point.
[20] This ground of appeal fails.
Did the Judge err by failing to impose home detention?
[21] The appellant’s second ground of appeal is that Judge O’Driscoll erred by failing to substitute the appellant’s short sentence of imprisonment for one of home detention.
[22] In particular, the appellant submits that the Judge failed to take into account the effects of the recent Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (Child Protection Act) when considering the question of home detention. The Child Protection Act imposes a number of moderately onerous obligations on offenders who are registered under it. A registered offender is obliged to give extensive personal information to the Police, include details of addresses,
vehicles owned, employers, social media usernames, and internet service providers.18
Registered offenders are also obliged to give details to the Police about prospective travel away from home, including dates and addresses, and the potential for children to be present.19
[23] Given his convictions under s 134(3), the appellant here was liable for registration under the Child Protection Act. However, as the appellant notes, he would be registered by operation of law only if a custodial sentence were imposed.20
Otherwise, in the event that a non-custodial sentence such as home detention were to be imposed, the decision to register him would be at the discretion of the sentencing Judge.21 The method by which an offender becomes registered dictates the duration for which the obligations referred to above apply to the offender. If a Class 2 offender (the appellant here) is registered by operation of law following imposition of a custodial sentence, they must comply with the obligations for 15 years. If the
Court, however, exercises its discretion to register them, they must comply with such for eight years only.
[24] A preliminary issue arises as to whether a sentencing Judge is permitted to take into account secondary effects of sentencing when imposing sentence. In this regard, the appellant refers to comments made by the Attorney-General in a report to Parliament on the Child Protection Act which indicate that its intention is punitive. The punitive aspects of the legislation have also, it seems, been accepted by the Court of Appeal.22 Ellis J in the High Court has also commented on the effect of the Child Protection Act, and has noted the potential ramifications on an offender’s liberty which arise from automatic registration following a custodial sentence, as opposed to discretionary registration following a non-custodial one.23
[25] I accept, in light of recent authority on this point, that it is open for a Judge to have regard to the Child Protection Act, and what that will mean for an offender who
is to become subject to it. This is particularly so when a Judge is faced with a
18 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 16.
19 Section 21.
20 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 10(2).
21 Section 9(1).
22 Bell v R [2017] NZCA 90 at [26].
23 Bird v Police [2017] NZHC 1296 at [25].
decision whether or not to commute a sentence of imprisonment to one of home detention.
[26] In any event, however, I consider that Judge O’Driscoll’s sentencing notes here demonstrate that he was aware of the fact the appellant would automatically be registerable under the Act. The Judge concludes:
[28] In light of the sentence of imprisonment that I have imposed, my understanding is that you are someone whose name will now automatically be registerable under the Child Protections (Child Sex Offender Government Agency Registration) Act 2016 so I make no order now in respect of that.
It can be inferred that the Judge was familiar with the provisions of this recent legislation, and aware of the ramifications which would be involved for the appellant.
[27] Finally, the effect of the Child Protection Act on the appellant was clearly not the only consideration the Judge was entitled or obliged to take into account. In this regard, Judge O’Driscoll discussed other relevant considerations which militated against a sentence of home detention in this case:24
My view is that home detention would not be appropriate. I do not believe that home detention would achieve the purposes and principles of sentencing that I have mentioned beforehand. The [appellant] has previously been dealt with by way of a sentence of intensive supervision and any rehabilitation now becomes a secondary factor and can be met by standard and special considerations of release so in deciding not to impose home detention I take into account that it would not achieve the purposes and principles of sentencing, that rehabilitation can be met in other ways than by a non- custodial sentence and in my view a clear message needs to be sent to the defendant and to others not to involve and engage young vulnerable and innocent girls into their sexual fantasies.
[28] I note also the comments made by the Court of Appeal in R v M, a case involving a representative charge of indecent assault on a 15 year old, that the ordinarily-appropriate sentencing outcome for sexual offending against children is
one of imprisonment.25
24 R v Partridge, above n 1, at [24].
25 R v M (CA197/00) CA197/00, 19 July 2000 at [14].
[29] Ultimately, I am not persuaded that the Judge has erred by failing to consider all factors relevant to the question of home detention, or that his decision on that was plainly wrong. The decision not to substitute a sentence of home detention was properly made having regard to the relevant sentencing purposes and principles, the appellant’s previous history and his apparent responses to prior sentences having as their aim rehabilitative purposes.
[30] This ground of appeal also fails.
Conclusion
[31] For all the reasons outlined above, I consider the appellant has failed to show that the Judge erred when he imposed sentence.
[32] The appeal is therefore dismissed.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch
Copy to: E Huda – Richard Maze, Barrister, Christchurch
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