PARTRIDGE v POLICE [2017] NZHC 106

PARTRIDGE v POLICE [2017] NZHC 106 [9 February 2017]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCRI-2017-425-000001[2017] NZHC 106BETWEEN RORY DAMIEN PARTRIDGEAppellantAND NEW ZEALAND POLICERespondentHearing: 2 February 2017Appearances: Appellant in personS N McKenzie for the RespondentJudgment: 9 February 2017JUDGMENT OF NATION J[1] Mr Partridge appeals against his sentence of 23 months' imprisonmentimposed by a District Court Judge on 2 December 2016. Mr Partridge filed his own appeal and appeared for himself at the hearing of the appeal. In summary, he argued the sentence was manifestly excessive.Principals on appeal[2] 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 there has been an error in the imposition of the sentence and that, in the event, a different sentence should be imposed.1[3] 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 sentence1 Criminal Procedure Act 2011, ss 250(2) and 250(3).is "manifestly excessive" that the Court should interfere with the exercise of theJudge's discretion. As Toogood J said in Larkin v Ministry of Development:2[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.[4] The focus on most appeals is thus on the end sentence. In Tutakangahau v R, the Court of Appeal held that:3 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.The District Court decision[5] Mr Partridge had earlier pleaded guilty to certain charges. The Judge gave a sentence indication on the morning of 2 December 2016 of no more than 24 months'imprisonment. Mr Partridge pleaded guilty on the afternoon of the same day and was sentenced in a manner consistent with the sentencing indication.[6] It is apparent the Judge adopted a global starting point for all offending of 36 months. In her sentencing indication, the Judge said a 30 per cent discount would be appropriate in recognition of the guilty pleas and some other matters in Mr Partridge's history, and there could be some further rounding-up in his favour to get the end sentence close to two years. The Judge made it clear that home detention would not be appropriate. When she actually imposed sentence, the Judge decided that, having regard to the totality principle, a sentence of 23 months was appropriate.[7] The Judge proceeded on the basis that, in general, a cumulative approach to sentencing on the various charges was appropriate, and this was accepted by counsel for the appellant at the time of sentencing.[8] In the main, the Judge accepted the suggested points advanced by theappellant's counsel: 12 months for the driving while disqualified, eight months for2 Larkin v Ministry of Development [2015] NZHC 680 citing Ripia v R [2011] NZCA 101 at [15].3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].the receiving charges, two months for cannabis cultivation, and two months for theassault. However, the Judge felt obliged to depart from counsel's argument on thestarting point for the breach of release conditions.[9] Considering the breach charges, the Judge, in the course of her indication,considered that a starting point "close to the maximum" of 12 months would be justified. In the appellant's actual sentence, she referred to a starting point "towards the higher end 10 months or so". This differed from counsel's suggestion that sixmonths would be appropriate. The Judge referred to Mr Partridge's explanation thathe had made the decision to move to the South Island to be with his unwell partner, but noted it was made clear to Mr Partridge that transfer had been refused. TheJudge also made reference to the appellant's previous convictions, which included 21 convictions for breach of release conditions, and considered that an additional uplift would be required, although this was not specified.[10] The sentence of 23 months' imprisonment was fixed by imposing concurrent sentences of 23 months on one charge of receiving goods worth more than $1,000and the charge of cultivation of cannabis, a concurrent sentence of three months'imprisonment on the two further charges of receiving property, two months'imprisonment on assault of a police constable and nine months' imprisonment onbreaching release conditions. On the charge of driving while disqualified, the appellant was sentenced to six months' imprisonment and disqualified from holdingor obtaining a driver licence for 15 months from 2 December 2016.Discussion[11] Mr Partridge had gone to the trouble of preparing neat handwritten submissions which he gave to me at the hearing of his appeal and which I read carefully.[12] In those submissions, he said he had pleaded guilty after being advised by his counsel that the sentence would come back from the 24 months indicated by the Judge. However, he confirmed to me that he knew the Judge had indicated a sentence of around 24 months and the ultimate sentence imposed was in line with that indication.[13] He said in his submissions that the Judge had not had sufficient regard to the steps he had taken to reinstate his learner licence and steps he was taking to obtain a restricted driver licence and to then sit for a full driver licence. He also said the Judge had not taken into account that he had believed he was able to drive at the time and that he was driving to take his two year old son to the hospital. In his writtensubmissions, Mr Partridge said he believed he was no longer disqualified "at the time of being pulled over as I was able to drive away following being pulled over".[14] How Mr Partridge was dealt with by the Police after he was pulled over could not have explained why he could have believed he was entitled to drive when he was stopped. Mr Partridge then said to me that he had thought that he only had one day to go on his disqualification. The summary of facts for this offence, however,confirmed he had been sentenced to 15 months' disqualification, commencing 19September 2015. He still had approximately four months of that disqualification to serve when he was driving a vehicle on 27 August 2016.[15] On 27 August 2016, the police stopped his vehicle in order to serve a letter on a passenger who was in the car. It is clear from the summary that it was only later the Police realised that Mr Partridge was driving while disqualified, which no doubt explained why he was not arrested or charged with driving while disqualified when the Police gave the letter to his passenger.[16] At sentencing, the Judge was told that Mr Partridge's partner normally drovewhen it was necessary.[17] I do not accept that Mr Partridge believe he was not disqualified when he was stopped by the police on 27 August 2016.[18] Mr Partridge said the circumstances in which he came to drive were not spoken of when he was sentenced. In her sentence indication, the Judge noted that Mr Partridge had claimed to be driving only because his partner was unwell, so she had considered the explanation he then gave for his driving.[19] The Judge also noted that Mr Partridge had seven prior convictions for driving while disqualified.[20] The starting point adopted by the Judge for the driving while disqualifiedcharge of 12 months was the starting point suggested by Mr Partridge's then counsel.I accept the Crown submission that it could have been higher, in the range of 12 to 14 months.4[21] The most serious receiving charge related to a chainsaw valued at $2,000,stolen from a property adjacent to Mr Partridge's address and found by the Police on Mr Partridge's property a month later. In his written submissions for me, Mr Partridge said he was unaware the property was stolen at the time he was arrested. He gave an explanation as to how the chainsaw had come to be left at his home by an associate and how he did not know it was stolen.[22] Mr Partridge did however acknowledge to me that he had pleaded guilty to a charge of having received that chainsaw knowing it to have been stolen. That was the basis on which he had to be sentenced.[23] Cash was stolen from a rural property near Mataura on 21 August 2016. On 29 August 2016, Mr Partridge cashed approximately $92 in coins at a bank at Gore. Police found further coins in a bag in his bedroom on 1 September 2016. Mr Partridge pleaded guilty to receiving cash to the value of $600 knowing it to have been stolen.[24] Another chainsaw valued at $800 was stolen from a rural property between18 August 2016 and 1 September 2016. It was found in Mr Partridge's home on 1September 2016.[25] The starting point adopted for all the receiving charges on a cumulative basiswas eight months, in line with the submission made by Mr Partridge's then counsel.I accept the submission for the Crown that the starting point for the receiving charges could have been significantly higher given his having items from three separate4 Consistent with the approach taken by the High Court in Drinkwater v Police [2013] NZHC 1036.burglaries, his six previous convictions for receiving and 16 previous burglary convictions from 2006 to 2016.5[26] It was only in relation to the breach of release condition charges that the Judge adopted a starting point in excess of that suggested by Mr Partridge's then counsel, "10 months or so" as compared to counsel's suggestion of six months.[27] In his submissions, Mr Partridge said he had been residing in the Wellington region but came to Southland to provide the necessary support and care for his son.He said the move was "not accepted" by the probation officer he had contacted at theGore office. He argued that this factor and the need to care for his son were not taken into account when he was sentenced.[28] On 2 June 2016, Mr Partridge asked his probation officer to approve a transfer to Gore. He was told on 7 June 2016 that this had been declined. On 13 June 2016, Mr Partridge told his Lower Hutt probation officer that he was in Dunedin and had remained there since, despite the declining of his transfer.[29] Mr Partridge pleaded guilty to failing to report to his probation officer on 22 August 2016 after confirming on 16 August 2016 that he knew he was required to do this.[30] He pleaded guilty to failing to report to his probation officer between 14 June 2016 and 2 August 2016 after signing an instruction on 3 May 2016 that he would be reporting weekly. His explanation to the probation officer was that he had travelled to Dunedin.[31] In her sentence indication, the Judge referred to the explanation given by MrPartridge's counsel for the move to Gore, specifically it being because his partnerhad tuberculosis and so he could be with his partner and child.[32] The Judge had thus considered his explanation of wanting to provide support for his child. That wish or need was obviously assessed by probation and, in the5 In line with Aurupa v Police [2012] NZHC 2750; O'Connell v Police [2012] NZHC 3286.circumstances, they did not consider the move would be appropriate. That assessment, as it has turned out, was probably for a very good reason. While living in Gore and subject to release conditions, Mr Partridge has committed the further offences involving receiving stolen property and those other offences which havenow resulted in him receiving the sentence of 23 months' imprisonment. The movehas thus turned out to be of no benefit to himself, his son or those people who have been the victims of his offending.[33] The Judge referred to Mr Partridge having 21 previous convictions for breach of release conditions.[34] Taking that history into account, the starting point of around ten months for the breach of release condition offending was well within range when the Judge was arriving at a starting point on a cumulative basis for all the offending.[35] Mr Partridge's offending included his swinging his elbow at and strugglingwith a police officer who was escorting him back to a cell after he had appeared in Court on 2 September 2016.[36] More significantly, his offending included having 19 cannabis seedlings growing in 12 pots at his home in Gore when it was searched on 1 September 2016. Mr Partridge was still subject to the conditions of release following his release from the Otago Corrections Facility on 27 April 2016. That offending does not sit wellwith Mr Partridge's desire to avoid getting into further trouble by dealing with hislicence situation and his stated desire to be able to care for his son and partner.[37] Mr Partridge said the Judge had not adequately recognised his remorse or the hardship he and his family would suffer through his loss of income, what has turned out to be the loss of his home and pets, and his inability to now care for his son. There was very little scope for the Judge to give Mr Partridge credit for remorse when he chose to offend in various ways that he must have known would have all those consequences and, in doing so, chose to ignore the obligations he had under previous sentences. There was, however, some allowance for such matters in thetotal discount which the Judge adopted of 30 per cent on a starting point for all the offending.[38] On completing his present sentence, Mr Partridge will have the opportunity to demonstrate how he wants to help himself and his family by making sure that he complies with post-release conditions and the driving disqualification to which he is subject, and by making sure that he does not reoffend in a way that will bring him back before the Courts.[39] I thus do not consider there was any error in the process by which the Judge arrived at a starting point on a cumulative basis for all the offending. As discussed and as submitted by the Crown, the cumulative starting point could have been higher.[40] It is also significant that the sentence ultimately imposed on Mr Partridge was consistent with the indication given by the Judge that morning. It included a full 25 per cent discount for guilty pleas and a further five per cent for personal factors.[41] I have not been persuaded that there was any error in the sentence which was imposed on Mr Partridge or that a difference sentence should have been imposed. His appeal against sentence is accordingly dismissed.Solicitors:M J Thomas, Crown Solicitor, InvercargillCopy to: R D Partridge.