R v Faigan - [2019] NZHC 3329

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2019-043-1039

[2019] NZHC 3329

THE QUEEN

v

PETER FAIGAN

Hearing: 16 December 2019

Counsel:

G N Milne for Crown

S Hughes QC for Appellant

Judgment:

16 December 2019

SENTENCING NOTES OF CHURCHMAN J

Introduction

[1] While I read my sentencing notes, Mr Faigan, you may remain seated. At the end of that period, which will take some time, I will ask you to stand when I impose sentence.

[2] Mr Faigan, you appear for sentence today having pleaded guilty to two charges of attempted poisoning with intent to cause grievous bodily harm.1

[3] Poisoning with intent to cause grievous bodily harm is a serious violent offence under s 86A of the Sentencing Act 2002, and a first strike warning was given to you at the time of the entry of the pleas.

1 Crimes Act 1961, ss 200(1) and 311(1); maximum penalty seven years’ imprisonment.

R v FAIGAN (SENTENCING NOTES) [2019] NZHC 3329 [16 December 2019]

[4]In sentencing you, I will explain:

(a)your offending;

(b)the impact that it has had on your victims;

(c)the starting point I have adopted;

(d)the adjustments that I have made to that starting point;

(e)whether a sentence of home detention is appropriate; and

(f)your final sentence.

Your offending

[5] At the time of the offending, you were living in a building that had been partitioned into two living areas. In 2018, Mr Chisnall came to live in the second living area in the building so as to help you clean up the address and get it ready for sale.

[6] Earlier this year, you and your wife separated, and she moved in with Mr Chisnall, sharing a bedroom with him.

[7] Following this, there were a number of incidents at the address attended by the police, including a physical altercation between yourself and Mr Chisnall on 2 May of this year during which he punched you at least 10 times in the head and, when you stumbled, tried to kick you and knee you in the ribs. He pleaded guilty to assault with intent to injure for which he was sentenced on 10 September 2019 to one year’s supervision.

[8] To get Mr Chisnall to leave the address, you had him served with an eviction notice, but he ignored it, remaining living at the address with your wife. You also pulled the fuses to where they were residing, meaning that they needed to use gas for cooking, and candles and torches for light.

[9] In the early hours of 6 June 2019, you prepared a 9 kilogram LPG gas bottle with a regulator and hose attached, inserted the hose from the gas cylinder into a hole you had drilled from the interior wall of Mr Chisnall’s and your wife’s bedroom to the exterior cladding of the building, and turned on the gas cylinder. You then returned to your own part of the building.

[10] Several hours later…

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.

Continue reading R v Faigan

Details

AGLC: R v Faigan [2019] NZHC 3329
Case: [2019] NZHC 3329
Decision Date: 16 December 2019

CaseChat Overview and Summary

Peter Faigan has pleaded guilty to two charges of attempted poisoning with intent to cause grievous bodily harm. He attempted to poison two men, Mr Chisnall and his wife, by inserting a hose from an LPG gas bottle into a hole he had drilled in the wall of their bedroom. Fortunately, the victims were unharmed. The court was required to decide on the appropriate starting point for sentencing, the adjustments to be made to that starting point, and whether a sentence of home detention was appropriate.

The court adopted a starting point of 48 months’ imprisonment, considering the seriousness of the offending and the aggravating features, such as the vulnerability of the victims and the level of premeditation involved. The court then made adjustments to the starting point, taking into account mitigating factors such as the appellant's mental health issues, the conduct of the victim, and the appellant's previous good character. The court determined that a total discount of 25% was appropriate, resulting in an end sentence of 23½ months’ imprisonment.

The court considered whether a sentence of home detention was appropriate, given the appellant's personal circumstances and the purpose of sentencing. The court concluded that home detention was suitable, taking into account the appellant's lack of prior offending, the support of his wife, and the potential exacerbation of his poor health if incarcerated. The court converted the sentence to 11 months’ home detention, with special conditions as outlined in the Provision of Advice to Courts report.

Mr Faigan was sentenced to 11 months’ home detention with the special conditions set out in the Provision of Advice to Courts report. An order was made for the destruction of the hose and gas bottle.

Orders