R v Partridge DC Palmerston North CRI-2009-054-3293 [2011] NZDC 950 (27 June 2011)

Last Updated: 30 September 2016

IN THE DISTRICT COURT AT PALMERSTON NORTH

_{CRI-2009-054-003293}

THE QUEEN

v

GRAEME KERRY PARTRIDGE

Hearing: 27 June 2011

Appearances: E C Killeen and M R Davie for the Crown

A M Isac for the Prisoner

Judgment: 27 June 2011

_{NOTES OF JUDGE G M LYNCH ON SENTENCING}

INTRODUCTION

[1] Graeme Kerry Partridge is for sentence now on two charges of sexual connection with a young person under the age of 16, three charges of indecent assault of a young person under the age of 16, a charge of indecent assault, and a charge of burglary.

[2] In relation to the sexual charges, on Friday, 25 March 2011 your jury found you guilty on counts 1, 7 and 9 to 12. The jury were unable to agree in relation to counts 4 to 6 and 13. I have been advised this afternoon that the Crown intend to proceed to re-trial on those counts that the jury were unable to agree upon.

[3] Both Ms Killeen and Mr Isac have invited me to proceed with sentencing and not to delay it.

R V PARTRIDGE DC PMN CRI-2009-054-003293 27 June 2011

[4] Count 1 was a charge of indecent assault under the age of 16 years. The complainant, L B, was a 15 year old runaway when you met her early one morning in early 2006. Ms B had been hitchhiking and you picked her up while working in your bin truck. Ms B remained with you that day and was invited later to live at your flat. About two to three months into her stay there was an occasion where Ms B arrived home drunk. Later in the night you came into her room and she felt you lean over her, kissing and touching her face and neck. When she told you to leave you did. Your defence at trial was that the touching never occurred and the allegation was false.

[5] Count 7 is a charge of indecent assault over the age of 16 years. The complainant T G was 18 going on 19 years old when she started visiting your Featherston Street flat. That was because her friend J R was staying there. Ms G started staying at the flat Sundays to Wednesdays. There was an occasion where you and Ms G had a conversation or negotiation regarding sex for a pair of boots and skirts. During that discussion you put your hand on her upper thigh and rubbed her lower back. Your jury found that the touching in the circumstances was indecent. Ms G later went on to have sexual intercourse with you and received the boots and skirts. I discharged you during trial on a charge of rape because it was crystal clear from Ms G’s evidence that she consented to the sexual intercourse. Your defence at trial on count 7, the indecent assault count, was that the touching of the thigh and back was not indecent.

[6] Counts 9 to 12 involve the complainant S W. S W was 15 years old when she first met you through two of her friends of the same age who were visitors to the address. Her friends were visiting your boarder, Mr Fryer. Ms W and her then boyfriend had nowhere to stay and Mr Fryer gave them permission to stay at the flat.

[7] Count 9 is a charge of indecent assault under the age of 16 years. Following a fight with her boyfriend, Ms W had become upset. You showed her sympathy by giving her a hug. In those circumstances the physical act of a hug clearly would not be indecent, however what you then did during the hug was to place your hands on her bottom. The jury plainly accepted that in those circumstances the touching was or became indecent. Your defence was that this touching simply never occurred.

[8] Count 10 is a charge of indecent assault under the age of 16 years. This was a representative charge. Ms W’s evidence was that on a number of occasions you would touch her, “Anywhere and everywhere” – between her legs, round her vagina, breasts and backside. It is clear from the jury’s verdict that they have accepted that at least on one occasion between 15 January 2010 and 18 March 2010 you touched her breasts and genital area. Again your defence at trial was that this touching never occurred.

[9] Counts 11 and 12 are charges of sexual connection with a young person aged under 16 years. In relation to each count the jury by its verdicts have clearly accepted that you had sexual intercourse with Ms W as she contended in evidence.

[10] Count 11 was signposted to the time of Ms W discharging herself from hospital. Ms W said that when she came back from the hospital she had sex with you because she wanted to get drunk. She said that she went into your bedroom and said that she was ready and that you had always been “pressuring” her into “doing it.” Ms W said that she had sex with you that night so that she could get alcohol. She also said that she had sex so that you would give her money as well. The following morning she did receive $300 of Home Direct items, but your position was that was on the basis that she went back to hospital to have her kidney issue looked at.

[11] Count 12 was the second occasion that you had sexual intercourse with Ms W. The evidence was that Ms W had been drinking, and when drunk went into your room asking you for cigarettes. Ms W’s evidence was that you gave her the cigarettes and after putting her hand on your penis had her come back into your bedroom after giving her friends the cigarettes. Ms W returned to your bedroom straight away and the two of you had sexual intercourse. Again your defence in relation to counts 11 and 12 was that these acts of sexual intercourse simply did not happen.

[12] The necessary context to this offending is your relationship with young women. Mr Isac and Mr Winter made no bones about the fact that you have an

attraction to younger women. It was contended that your attraction was to young women aged between 16 and 18 years old. The jury clearly rejected that.

[13] Your flat became a haven for young women. Whether you intentionally set out to make it so does not really matter because you permitted your house to be used by young people to socialise at, drink at and also to take drugs. On the evidence, you provided cigarettes alcohol and drugs. Predominantly the young women who came to address were without money and in some cases without anywhere to stay. You provided accommodation, and as I have observed, somewhere for them to gather and to party and to socialise. As the evidence also established you provided some young women with gifts.

[14] Your actions went beyond the sleazy and reprehensible characteristics that Mr Isac suggested to the jury was the position. You used your position as someone with access to funds and someone with a roof over his head to have a number of young women visit and stay at your address.

[15] The Crown contended that the complainant were vulnerable young women. It is clear Ms B, through her own choices, was without somewhere to stay. You knew, from what you told the police, that it was wrong to have someone that young staying at your address. After all you were in your fifties and had with you a boarder also of mature years and had this 15 year old essentially runaway living with you. S W was 15 and she also had nowhere to stay and ended up living with you. It would have been plain to you that Ms W had an issue with alcohol.

[16] There are victim impact statements for L B and T G, but unfortunately not for S W, notwithstanding the efforts of the officer in charge. L B regrets living at your address and feels that what you did was wrong and that you took advantage of her. She says that she has ended up having to go to counselling to get everything sorted in her head and escape the drug and alcohol addictions that she had. She says that she now has trust issues with men and she blames you for that because of the way you treated her. She stated that: “The only good thing that has come out of this whole thing is that it has brought me closer to my parents – reminded me of how good it is with them.” T G’s victim impact statement was briefer and says that what

you have done has made her more shy and it is because of the shyness that she does not feel comfortable talking about her feelings.

[17] You do not have any convictions for sexual offending.

[18] In relation to the burglary you were in the company of two young women, R C and J R, who has been mentioned already. You went with them to the St John’s ambulance building in Cuba Street one night between 1 September 2008 and

31 October 2008. You had access to the building because you were at that time a volunteer, however that night there was no authority because you were there to steal some gas. So using your key and disarming the alarm with the code you had been given you went in and took two bottles of Entonox gas, two bottles of oxygen, mouthpieces and regulators. The girls stayed outside in your van. You told the girls it was NOS and when you got back to the flat they inhaled the gas for a high. The police recovered from your address two Entonox cylinders, one Entonox regulator, two oxygen cylinders and two oxygen regulators. Entonox is an analgesic, being nitrous oxide and oxygen. Each cylinder provides one hour of aggressive analgesia. A reparation amount has not been provided. The cylinders are hired and there is a cost for refilling them.

[19] You have a conviction for theft as a servant in 1991 where a $500 fine was imposed with $433 reparation, and theft in 1994, noted to be under $500, where a fine of $400 was imposed. Those convictions do not aggravate your position on sentence today on the burglary charge.

[20] The pre-sentence report was not particularly helpful and that is because you continue to deny the offending. Accordingly, as the report writer observes, remorse and insight into offending is difficult to assess in the face of that continued denial. So the report writer said that you cannot be referred to as either remorseful or indeed insightful. The report writer said you gave long and convoluted explanations pertaining to “sideline issues” and it was the report writer’s impression that you shifted responsibility for your actions, minimised your actions and suggested that the victims were troubled themselves and perhaps seeking revenge.

[21] You were ambivalent about the prospect of completing any rehabilitation programmes while in custody or upon release. I exercise some care in relation to that statement because you are maintaining your denial.

Defence Submissions

[22] Mr Isac filed written submissions and I am grateful for the assistance. Mr Isac has invited a global approach to sentencing on the sexual charges, with the sexual connection charges as the lead charges and the other sexual offending represented by an uplift. It was suggested that a discrete uplift for the burglary charge might be required.

[23] Firstly then are the sexual charges. While Mr Isac said that your behaviour was reprehensible and sleazy, how in his closing address he described your involvement with young women at your flats, Mr Isac said it might be going too far to describe it as single minded or entirely predatory. A fairer description, Mr Isac said, was to perhaps describe it as opportunistic. Mr Isac said that there was no evidence of threats, violence or persistence with physical contact after a complainant had made it clear that they did not wish to have further contact with you. By way of illustration Mr Isac referred to the incident with L B which ended immediately she made it clear she did not want your attention, and observed that in some cases such as the sexual intercourse with Ms W, that the sexual contact was initiated by the victim.

[24] Mr Isac submitted that individually, on the indecent assault and the burglary charges, none would have justified a sentence of imprisonment, however he accepted in combination that they did. In his oral submissions this afternoon Mr Isac modified his position on the burglary charge. Because of the breach of trust issue Mr Isac accepted that a sentence of imprisonment would likely to be imposed if that matter was on its own. That was an appropriate and responsible concession.

[25] It is the two sexual connection charges that are the serious offences, and that was the focus of the submissions. Mr Isac observed that S W was 15 years and seven months old at the time and, as Mr Isac observes, clearly sexually active, and during the period that she was living with Mr Partridge. At paragraph [21] of his

submissions Mr Isac states that seven months later Ms W would not have been presumed by law to be incapable of giving full and informed consent. That is not quite what s 134(1) is all about. Where Mr Isac was heading with that submission, in my view, was that had Ms W been 16 years old at the time of the sexual intercourse, and accordingly these charges not available to the Crown, there would not have been a foundation, certainly after she gave evidence, to sustain sexual violation by rape charges.

[26] Mr Isac referred to R v Johnson [2010] NZCA 168, R v Burdett [2009] NZCA 366, R v A [2007] NZCA 448, R v H [2008] NZCA 237 which is the Court of Appeal decision providing guidance. He also referred to Fa’afuata v Police (CRI-2009-404-000033, HC, Auckland, 3 April 2009, Heath J), Savelio v Police (CRI-2007-0485-000008, HC, Wellington, 28 March 2007, Miller J) and R v Crooks [2006] BCL 47, all involving sexual connection offending like the offending against Ms W.

[27] Crooks is not particularly helpful as it predates the increase in penalty. Johnson was a Solicitor-General appeal and a start point of three years, nine months was described as bottom of the range. Burdett a start point of three and a half years was upheld, as it was in R v A. In R v H after a recalibrating exercise the Court of Appeal said that a starting point on conviction for sexual connection under s 134 could be fixed at four years. In Fa’afuata a start point of three years was upheld by the High Court and in Savelio the High Court allowed the appeal and decided that a start point of two and a half years was appropriate given the aggravating factors there.

[28] In his oral submission Mr Isac developed his argument regarding the appropriate start point by referring more closely to some of those cases. Mr Isac commenced with Johnson, the most recent Court of Appeal decision providing guidance. Mr Isac’s first point of distinction was that here, that is in Mr Partridge’s case, there were two specific incidents relatively isolated versus the several occasions in Johnson and the extent of the sexual acts that can be seen in Johnson.

[29] Mr Isac particularly pointed to paragraph [16] and [17] of the judgment and highlighted paragraph [17] where the Court of Appeal observed that it considered that the four year starting point in R v H is still a useful reference point in relation to sentencing for sexual connection with young persons where the offending shares features present in that case. Mr Isac then referred to those R v H features as follows:

1. Abuse of trust. Here Mr Isac said that there was not the abuse of trust which could be seen in Johnson. T G to a small degree held Mr Partridge on a pedestal, a father-like figure. However, it was not clear, Mr Isac said, how she got to that point.

2. A significant age gap. Mr Isac conceded that that was certainly the case here.

3. Penetrative sex. Mr Isac acknowledged that there was sexual intercourse on two occasions here, but made the point that the significance of the penetrative sexual intercourse was in the next feature.

4. Frequency. That is the offending is aggravated when it is on a number of occasions. Mr Isac said that here there were two isolated occasions unlike Johnson and R v H.

5. Significant adverse effects. Mr Isac says well there are none here, or none that can be substantiated.

[30] Accordingly, Mr Isac submitted that really this is the lower end of the scale of seriousness. He accepts that there is a “gross age gap,” but not to the extent that would call for the moderate start point in H, let alone a start point above that as the Crown contends. In relation to R v H Mr Isac pointed to the fact that in that case there were two victims, not the one here, that is Ms W. In that matter the accused was found guilty on six counts and the offending was on a single night, but a night of sustained group sex. Apparently one of the complainants was reluctant to get

involved, but did so after some encouragement from the accused. There was a start point of three and a half years.

[31] In Fa’afuata, Mr Isac made the point that the accused was known to the family and he was teaching the complainant to drive. Accordingly that, unlike this matter, had the hallmarks of trust.

[32] In relation to Savelio, Mr Isac acknowledged that this pre-dated R v H and R v Johnson and particularly referred to paragraph [13] where a starting point of two and a half years imprisonment was noted by Miller J to be appropriate on the facts of that case which incorporated the abuse of trust, age disparity and the element of grooming. While Mr Isac said that perhaps the starting point could now be seen as generous in light of the later Court of Appeal decision of R v H and R v Johnson, Miller J, did refer to R v Boyd [2004] 21 CRN 169 but made the point that of those factors really it was only age disparity that provided any similarity here.

[33] In conclusion, it was Mr Isac’s submission that the offending here falls below the moderate offending the Court of Appeal was referring to when it identified the start point of four years in H. (For the “moderate” description see R v Johnson at paragraph 15.)

[34] Mr Isac observed that the two and a half to three years start point that he submitted or contended for in his written submissions might be “somewhat optimistic” and in his oral submissions submitted that three to three and a half years might be appropriate in all the circumstances. Mr Isac accepted that in relation to the indecent assault offending, excluding the W offending because in his submission that was part and parcel of the sexual connection charges, Mr Isac suggested an increase to the start point of between six and 12 months. There is of course to be an uplift for the burglary.

Crown Submissions

[35] Mr Davie filed written submissions on behalf of the Crown and Ms Killeen today spoke to those submissions. The Crown invited concurrent sentences on the

sexual offending with the sexual connection charges as the lead offences and with a cumulative sentence on the burglary charge.

[36] The Crown identified the following aggravating factors:

1. Premeditation. This was a situation of the prisoner ingratiating himself with the victims. His gifts, the Crown said, were accompanied by sexual advances and in circumstances where he knew L B and S W were under age.

2. The vulnerability of the victims. These were young persons without independent means of subsistence and that made them dependent on Mr Partridge and they could not easily evade his attentions.

3. Breach of trust. The Crown contended that this was particular so in

T G’s case who thought of Mr Partridge as a father figure.

4. Multiple victims.

5. The age disparity.

6. The extent of harm disclosed in the victim impact statements.

7. Offending while on bail. The Crown in particular pointed to the offending against S W being while he was on bail.

[37] The Crown referred to a number of decisions. R v Boyd, not for the sentence, but in relation to the protective nature of sexual connection charges. R v Burdett, R v Johnson, Harvey v Police, (given the teacher/student relationship not of any great assistance). R v Brunie [2009] NZCA 300, (again given the relationship, Brunie a youth worker in a secure care and protection facility and the victim for a time a ward of the facility, not of significant assistance) and Pene v R [2010] NZCA 143.

[38] The Crown submitted that a start point between five and six years is appropriate given the aggravating factors identified. That was because the Crown concluded that the offending was significantly more serious than what Mr Davie in the written submissions described as a “standard act of sexual intercourse between an older man and a young person,” referred to by the Court of Appeal in R v H and R v Johnson, which would attract a starting point of four years imprisonment.

[39] On the burglary charge, the Crown conceded that ordinarily it would not have resulted in a sentence of imprisonment and in the circumstances a short cumulative term of imprisonment was appropriate. I disagree in relation to the burglary charge.

Discussion

[40] Firstly, the sexual offending. As counsel have invited I will deal with the offending globally with the sexual connection charges as the lead offences.

[41] Before I establish the start point, I confirm that I have taken into account the purposes and principles of sentencing under the Sentencing Act. The dominant purpose of sentencing you today Mr Partridge is to hold you accountable for what you have done, to denounce the offending and to deter you or anyone else who might be minded to offend in this way, particularly against young persons.

[42] In relation to the principles of offending I particularly take into account:

1. The gravity of the offending. In my assessment it is at the bottom of the moderate category.

2. The effect on the victims and I have already referred to the two victim impact statements and will not repeat them.

3. The need for consistency in sentencing similar matters, as best that can be achieved when the circumstances of offending necessarily vary so much from case to case, as do the circumstances of the offending.

[43] Turning then to the aggravating factors here. There was a degree of premeditation in my assessment. The submission for the Crown is really one of predatory conduct without exactly saying so. That is not my assessment. It was not the classic predatory conduct often seen in matters like this. While Mr Partridge did ingratiate himself with the victims it is clear that there was an element of advantage to all parties in the set up at his addresses. Mr Partridge has a penchant for those much younger than him and there can be no argument that he was morally bankrupt.

[44] If not predatory, what was it? Well in my view Mr Partridge you provided the setting to explore your sexual interest in young women, or women with their own vulnerabilities. You expressed a sexual interest in each of them. You knew alcohol was being drunk by most, alcohol you had at the address and you knew that drugs were being used by some. You did nothing to stop either. Your interest in young women coat-tailed upon the need of some to have a place to live or crash at or at least for others, a place to hang out. It could not have escaped your attention that the places where you lived were a magnet for young women and you were the common factor.

[45] In relation to Ms W and the sexual connection charges, it must be acknowledged that this offending was nothing short of commercial in nature. However in my assessment Ms W was somewhat vulnerable on each occasion and you took advantage of that to get what you wanted and that was plain, you wanted sex with a younger woman.

[46] Was there a breach of trust in relation to T G? Well she did see you as a father figure. However there is no element of responsibility for the victim as there is in some of the cases. I do not give this factor any weight.

[47] Mr Partridge did offend against more than one victim. This is an illustration of your badly calibrated moral compass. You had a sense of entitlement to hang out and chance your arm with some of these young persons. I agree with the Crown in relation to the aggravating feature of the offending against W while you were on bail.

[48] The Crown suggested that the age disparity between you and the victims was an aggravating factor. Some care is needed with a submission like that when the

indecent assault under the age of 16 and the sexual connection charge has age as an element of the offence. Age is a necessary component of the charge. Where an older offender has acted so as to have a younger person under his thrall or power, then that qualifies in my assessment as an aggravating factor. In the particular circumstances here that is not so and I give it little weight. What is plain is that protective legislation like this is there for a good reason. Often young persons do need protecting from themselves and from offenders such as you who unfortunately hover in corners waiting for the opportunity to pounce.

[49] I agree with Mr Isac that individually the indecent assault charges would not have demanded a sentence of imprisonment. However, cumulatively they do as he accepts. In relation to the sexual offending they show or illustrate a man who has an unhealthy sexual interest in younger persons.

[50] But first the starting point for the two sexual connection charges in relation to Ms W. I struggle to see how the Crown can elevate the offending here to well above the R v H starting point. I do not accept that analysis. As the Court of Appeal said in Burdett, R v H is a guide rather than a fetter and here there is the absence of the aggravating factors seen in most of the cases referred to.

[51] In all the circumstances and considering the cases referred to by both the Crown and the defence I adopt a start point of three years and three months imprisonment.

[52] The indecent assault charges do deserve an increase to the start point of three years and three months. In relation to the indecent assault charges I increase the start point by six months. There can be no deduction for remorse, because plainly there is none.

[53] Finally, the burglary charge. This is offending that requires a sentence that denounces and deters. Employers have to be able to rely implicitly on their employees, particularly where they permit access to their property. This is mean offending against an organisation that can from time to time struggle to fund what they wish to provide for our community and what our community has come to expect from them. The overlay here of course is that there is again the involvement

of younger women. You stole the Entonox gas, mouth pieces and regulators so that these young women could use the gas to obtain a high of some sort. I would adopt a start point of one years imprisonment. I would deduct three months for your guilty plea, perhaps a little generous in the circumstances, resulting in an indicated end sentence of nine months imprisonment. There is no deduction for remorse because again there is none.

[54] I need to consider totality. Is a total sentence of four years and six months imprisonment disproportionate to the overall gravity and culpability of your offending? Stepping back and looking at the indicated sentence, in my assessment it is. In my assessment a total sentence of three years and nine months is appropriate and a total sentence of that length meets the purposes of denunciation and deterrence.

_{[55] The sentence of three years and nine months is imposed as follows:}

Mr Partridge on the two sexual connection charges, counts 11 and 12

_{you are convicted and sentenced to three years imprisonment.}

On the indecent assault charges, counts 1, 7, 9 and 10 you are convicted and sentenced to six months imprisonment on each, but to

_{be imposed concurrently.}

On the burglary charge, you are convicted and sentenced to nine months imprisonment, cumulative upon the three years imposed

_{on count 12.}

[56] That results in a total sentence of three years and nine months imprisonment.

G M Lynch

District Court Judge