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IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA718/2017 [2019] NZCA 529
BETWEEN
PETER JOHN ORCHARD Appellant
AND
THE QUEEN Respondent
Hearing:
6 June 2019
Court:
Kós P, Miller and Brown JJ
Counsel:
A B Fairley for Appellant B J Horsley and A J Ewing for Respondent
Judgment:
4 November 2019 at 11 am
JUDGMENT OF THE COURT
AThe applications to adduce fresh evidence on appeal are declined.
BThe appeal against sentence is allowed.
CThe sentence of six years and nine months’ imprisonment on the charge of causing grievous bodily harm is quashed and a sentence of four years and three months’ imprisonment is substituted.
Mr Orchard, an arborist, fell from a tree. He suffered significant physical injuries and a mild traumatic brain injury. He has since been diagnosed with post‑traumatic stress disorder.[1] This has the effect of causing severe anxiety, mood dysregulation, poor impulse control and maladaptive coping strategies, including chronic suicidal thinking.
[1]Hereafter, “PTSD”.
The accident occurred in 2013. Following the accident Mr Orchard became estranged from his wife. In 2015 she obtained a protection order against him. But she continued to maintain contact with him, in part because of their children. In January 2016 Mrs Orchard and three of their young children went with him in the family car to the beach. On the way there she received a text message from a friend making certain allegations about Mr Orchard. She told him about the message and its contents. He became angry and upset.
That angry, agitated state continued as he drove home. He said things like, “I don’t have anything to lose”. Then he drove the car deliberately at some lamp posts. As he did so he unclipped his wife’s seatbelt. Two lamp posts were knocked over before the third brought the car to a halt. In a continued state of agitation Mr Orchard climbed a tree with a length of rope and attempted to hang himself. Two members of the public rescued him from that fate, together with some police officers who had been called to the scene.
Mrs Orchard was knocked unconscious by the accident, badly bruised and spent three days in hospital. Fortuitously the children were not injured physically at all.
Mr Orchard pleaded guilty to one count of wounding with intent to cause grievous bodily harm to his wife,[2] one count of breaching a protection order, two counts of assaulting the two men who rescued him and one count of driving dangerously. Downs J sentenced Mr Orchard to an effective sentence of six years and nine months’ imprisonment on these charges.[3]
Mr Orchard appeals that sentence. He says the starting point of nine years for the lead GBH offence is too high, that uplifts given for the protection order breach and prior offending were too…
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
AGLC
Orchard v R [2019] NZCA 529
Case
[2019] NZCA 529
Decision Date
CaseChat Overview and Summary
Orchard, an arborist, suffered a significant physical injury and mild traumatic brain injury in a fall from a tree. He was subsequently diagnosed with post-traumatic stress disorder (PTSD), which has resulted in severe anxiety, mood dysregulation, poor impulse control, and maladaptive coping strategies, including chronic suicidal thoughts. In 2016, Orchard drove his car deliberately into lamp posts while in an agitated state, causing grievous bodily harm to his wife and breaching a protection order against him. Orchard pleaded guilty to the charges and was sentenced to six years and nine months imprisonment. Orchard appealed against the sentence on the grounds that the starting point was too high, the uplifts for other offending and prior convictions were too high, and the discount for his mental health issues was too low. The Court of Appeal agreed with Orchard on all grounds. The starting point was reduced to six years and six months, the uplifts for other offending and prior convictions were reduced to two months, and the discount for mental health issues was increased to 20 per cent. The final sentence was four years and three months imprisonment.