Giltrap v The Queen - [2010] NZCA 157

IN THE COURT OF APPEAL OF NEW ZEALAND
CA756/2009
[2010] NZCA 157
BETWEENNIGEL JOHN GILTRAP

Appellant

ANDTHE QUEEN

Respondent

Hearing:14 April 2010

Court:Hammond, Chisholm and Priestley JJ
Counsel:P B McMenamin for Appellant

K Raftery for Respondent

Judgment:30 April 2010 at 2.30 p.m.

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Priestley J)
The appeal
[1]         In October 2008 the appellant assaulted his partner by tipping a can of paint over her. His victim obtained a temporary protection order under the Domestic Violence Act 1995. Undeterred the appellant breached that order four times over the next month.
[2]  The appellant was tried by a jury in the Christchurch District Court in October 2009. He faced seven counts. One was assault with a weapon laid under s 202C of the Crimes Act 1961. The other six counts were laid under ss 19 and 49(1)(a) of the Domestic Violence Act 1965. The jury acquitted him on two of the Domestic Violence Act counts and convicted him on the other five.
[3]         In June 2006 the appellant had been convicted of five breaches of a protection order obtained by a former partner. He was thus not a first offender so far as domestic violence was concerned.
[4]         Judge Farish, who presided over the appellant’s trial, imposed a term of imprisonment, using the s 202C charge as the lead sentence, of two years and two months. The appellant regards that sentence as being manifestly excessive and has appealed.
Background
[5]         The appellant was aged 42. For approximately a year he and his victim had shared the victim’s home. When the victim had returned from a trip overseas she asked the appellant to leave which he did. The relationship had begun to cool.
[6]         The day before the assault the victim had refused to go out with the appellant. She was observed by the appellant having a drink with a friend. Over the next 12 hours the appellant sent a large number of text messages to the victim threatening harm to both her and her home.
[7]         The next day the victim, unwisely perhaps, went to a workshop where the appellant was employed to talk to him and to express her concerns about the nature of his text messages. When she arrived the appellant was painting a truck with a red paint. The appellant’s version was that the victim approached without warning.
[8]         Nonetheless, as the victim approached the appellant he picked up the tin of paint and tipped its contents over her head. The victim spent the next five hours in hospital where treatment was required in the hospital’s toxic unit to remove the paint from her skin. The victim impact statement which the Judge had on sentencing refers to the assault causing extensive damage to her hair, blurring her vision, and triggering breathing difficulties and dermatitis. Her hair had to be cut. Her skin was painful for some weeks. Her eyesight, at the time of sentencing, had…

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.

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Details

Case: [2010] NZCA 157
Decision Date: 30 April 2010

CaseChat Overview and Summary

Nigel John Giltrap was the appellant in this case, challenging the sentence imposed by Judge Farish in the Christchurch District Court. The court had convicted Giltrap on five counts of domestic violence, one of which was an assault with a weapon under the Crimes Act 1961. Giltrap argued that the sentence imposed by Judge Farish, a term of imprisonment of two years and two months, was manifestly excessive. The central legal issue was whether the sentence imposed by the trial judge was manifestly excessive. The appeal court considered the totality of Giltrap's offending, the appropriate starting point for the lead sentence, the cumulative nature of some of the sentences, and the mitigating factors that the trial judge had considered. The Court of Appeal found that the sentence imposed was within the range of what could be considered appropriate for the totality of Giltrap's offending. They dismissed the appeal and affirmed the sentence imposed by the trial judge.

Orders