R v Faigan
[2019] NZHC 3329
•16 December 2019
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 your wife woke up. She heard a hissing sound and could smell a strong odour of LPG gas. She woke Mr Chisnall up and, using a torch, they eventually found the hose poking through the wall. They left and called emergency services.
[11] Upon arrival, the police located the gas bottle and turned it off. They were followed shortly after by the fire service who ventilated the dwelling, the gas level being at what was described as “a dangerous asphyxiation level”.
[12]Fortunately, the victims suffered no physical injuries on that night.
Victim impact statements
[13] You have heard the statement that Mrs Faigan provided the Court which was read by Crown counsel. The important points that I take from that statement are, she says she believes you did what you did to try to get Mr Chisnall to leave, and that she did not think you wanted to harm either her or Mr Chisnall. Although she has a protection order against you, she indicates that she is not afraid of you and never has been. She is hopeful that, because of your mental health issues, you will get home detention.
[14] Mr Chisnall’s victim impact statement was also read to the Court. He says that as a result of the incident he has post traumatic stress. He believes that you tried to kill him. He refers to having subsequently had trouble sleeping. He also refers to the extremely serious consequences that would have occurred if he had used a lighter when he was woken up.
Starting point
[15] I first set a starting point to reflect the seriousness of your offending. There is no tariff or guideline case for the charge of attempted poisoning.
[16] The Crown has brought to my attention several cases said to be of relevance. The first of these is Tegg v Police, in which the appellant had given her baby daughter the household cleaner “Jif” on a number of occasions, causing her to be admitted to hospital, distressed and vomiting.2 It transpires that Ms Tegg had suffered from fictitious disorder by proxy, also known as Munchhausen syndrome by proxy, a condition by which a caregiver creates the appearance of health symptoms in another person. Ms Tegg was initially sentenced to eight months’ imprisonment and nine months’ supervision after pleading guilty. On appeal, the issue was whether her circumstances called for a non-custodial sentence. Wild J held that, given that the appellant’s psychological disorder had brought about the offending, the sentence imposed of eight months’ imprisonment was manifestly excessive, and substituted it with one of three months’ imprisonment.
[17] The second case is the one that you would have heard Ms Milne, for the Crown, refer to me as being the most appropriate case and the closest case on the facts to your particular situation. This was a case of an appeal against a sentence of two years eight months’ imprisonment imposed on a charge of manslaughter by an unlawful act.3 In that case, after an argument, Mr Burgess, who was the victim’s neighbour, covertly blocked the external gas flue at the victim’s property which led to a build-up of carbon monoxide. The victim died as a result of the toxic effects of carbon monoxide, combined with pre-existing health conditions. Mr Burgess pleaded guilty on the basis that there had been no intention to kill the victim, he merely wanted him to be cold. A start point of four years’ imprisonment was adopted and the sentence imposed was one of two years eight months’ imprisonment, which took into account the guilty plea and Mr Burgess’ diagnosis of paranoid schizophrenia. While the Court of Appeal described this sentence as lenient and found Mr Burgess’ psychiatric history to be of limited relevance as it had no direct causative impact on the offending, the ultimate
2 Tegg v Police HC Wellington AP/271, 20 December 2000.
3 R v Burgess [2017] 2 Cr App R (S) 25.
sentence was left untouched, it being considered that the sentencing exercise was difficult and sensitive, which allowed room for a degree of leniency.
[18] The Crown has also suggested that cases with some similarities in facts, but which involved charges of attempted murder could be used for guidance regarding the appropriate sentence starting point, although it was acknowledged that attempted poisoning attracts a significantly lower maximum penalty of seven years’ imprisonment rather than 10 years.4 That was an appropriate concession for the Crown to have made.
[19] One final case brought to the Court’s attention by the Crown is the case of R v Boyd in which the appellant, having been found guilty of placing an explosive device outside a house with intent to cause grievous bodily harm, was sentenced to five years’ imprisonment.5 This sentence was found to have been within the range available to the sentencing Judge. However, I note that in distinction to your case, that sentencing proceeded on the basis that there was a specific intent to cause grievous bodily harm.
[20] In assessing the relative seriousness of your offending, the two most serious features for me are, first, the vulnerability of the victims, as you knew they were asleep: and secondly, the level of premeditation involved, as you had drilled a hole into the side of the building and then fed a hose from the LPG cannister into that portion of the dwelling.6
[21] In terms of premeditation, your counsel acknowledges this aspect of the case to be challenging but argues that to be genuinely premeditated would require you to have been functioning as a fully competent human being. She submits that your purpose in acting as you did was not to cause harm to either of your victims but to persuade Mr Chisnall to leave. She submits that your behaviour was not the cold- blooded premediated actions of someone intending another serious harm, but the desperate act of a man who, having tried every other means known to him to have Mr
4 R v Wilson CA53/87, 6 November 1987; R v X [2016] NZHC 840.
5 R v Boyd CA175/85, 9 June 1986.
6 Sentencing Act 2002, ss 9(1)(g) and (i).
Chisnall leave, was driven to act as he did in response to the baiting and provocation provided by Mr Chisnall.
[22] The Crown has also raised other aspects of your behaviour argued to be aggravating factors. They list these as being:
(a)that the offending involved the use of a weapon, namely an LPG gas cylinder, although properly, they acknowledged that this is inherent in the nature of the charge;7
(b)that the offending took place at one of the victim’s dwelling place (arguably both of the victims’ dwelling place), a place where the victim was entitled to feel safe;8
(c)that you abused a position of trust in relation to your wife, although you were separated at the time of the offending;9 and
(d)the harm resulting from the offence.10
[23] The Crown submits that an appropriate starting point would be in the vicinity of four years’ imprisonment. That was not challenged as a proposition by your counsel, Ms Hughes. I accept that to be an appropriate starting point, comparing your offending with analogous cases and given the applicable aggravating features which I have just identified.
Adjustments to the starting point
[24] I now turn to the adjustments that need to be made to that starting point to come up with a final end sentence. This is the part of the sentencing process where there are some differences between the figures that the Crown counsel has set out and the corresponding figures that your counsel has submitted to the Court.
7 Section 9(1)(a).
8 Section 9(1)(b).
9 Section 9(1)(f).
10 Section 9(1)(d).
[25] The Crown has suggested that a 30 per cent discount is appropriate to reflect the relevant mitigating features, said to be mental health issues, the conduct of the victim, Mr Chisnall, and your previous good character. Ms Hughes, however, contends that a total discount of 40 per cent for these features would be more appropriate, breaking the proposed discounts down as follows:
(a)health – physical and mental: 10%
(b)victim’s conduct: 25%
(c)previous good character: 5%
[26] Going through mitigating factors that the Court is required to take into account, I note that you are now aged 59 and this is the first time that you have appeared before the Court.11
[27] There were undoubtedly troubling aspects in Mr Chisnall’s conduct.12 The Court of Appeal has provided guidance on when it is appropriate for a Judge to apply sentence discounts to reflect a victim’s conduct. I am now going to read a passage from the Court of Appeal’s decision in the case of Wairau v R. The Court said:13
[31] First, nothing said in Hamidzadeh is in any sense an acknowledgment that provocation short of conduct amounting to self-defence justifies a violent response. Self-defence is just that: a defence to a charge of violent offending. Consideration of victim conduct under s 9(2)(c), on the other hand, is concerned with a different question: whether the behaviour of the victim has materially reduced the culpability of the defendant in responding to it. It will give rise, at best, to a modest discount on the starting point for sentencing.
[32] Secondly, the existence and extent of any discount for provocative victim conduct will depend on an evaluation of all the circumstances of the offending...
[28]That is the approach that I will take in your case.
[29] In another cases Wiseman v R, the Court of Appeal indicated that the victim’s conduct was more likely to amount to a mitigating factor where the offender had
11 Sections 9(2)(a) and (g).
12 Section 9(2)(c).
13 Wairau v R [2015] NZCA 215.
unsuccessfully attempted to take other means to address a perceived wrong.14 In that case, a discount of six months was applied because the offender’s motive had been to recover his vehicle in a situation where he had tried, and failed, to enlist the help of the police.15
[30] As you heard Ms Hughes submit on your behalf, she said Mr Chisnall had baited you, taunted you, refused to leave the premises when asked to, failed to respond to an eviction notice and trespass notice, assaulted you, and generally made your life extremely difficult. She further submitted that your wife was, to varying extents, complicit in that conduct knowing the distress that her presence in Mr Chisnall’s part of the residence was causing you and the sense of desperation that provoked.
[31] While I accept that Mr Chisnall’s conduct is certainly a mitigating factor to be taken into account, I do not think it is appropriate that you receive as high a discount as the 25 per cent proposed by your counsel. In terms of the cases I have referred to, I conclude that to a discount of 10 per cent for this particular aspect of the offending is appropriate.
[32] Along with the mental health issues, it is submitted for you that your cognitive function was limited at the time of the offence. I have available to me the s 38 report in which a qualified medical professional looks at your mental health status. That report confirms that you suffer from physical, psychological and cognitive challenges following your second stroke. The Provision of Advice to Courts report notes that your son, who saw you a week before the offending, reported being “shocked” at the deterioration in your wellbeing. It is further noted that you were detained by mental health services in April this year following a threat to hang yourself. As to your physical health, you have suffered two significant strokes in the past five years, the most recent being approximately 18 months ago, and these have had a significant impact on you, affecting not only your general understanding but also your memory. You are finding it difficult to deal with emotional situations and are described as suffering severely from anxiety and depression.
14 Wiseman v R [2018] NZHC 1684.
15 At [62].
[33] In E (CA689/10) v R, the Court of Appeal noted that discounts ranging from 12 per cent up to 30 per cent had been seen as appropriate for mental health as a mitigating factor.16 It is my view that, in the circumstances, a 15 per cent discount to reflect your health concerns is warranted.
[34] While you have not explicitly expressed remorse, your son has reported that you expressed shame and embarrassment shortly after the offending, and your counsel submits that you have emphasised to her that it was never your intention to harm either of your victims and that you wished to attend a restorative justice conference. I believe that this aspect will be best reflected in the guilty plea discount.
[35] As to your good character, as I have already mentioned, this is your first time appearing before the courts. I have had the opportunity of reading the references provided by those who know you well attesting to your good character and they accept that this behaviour appears to have been out of character for you. Relying on those documents, I assess that a discount of 15 per cent is appropriate to reflect your previous good character.
[36] Taking all of these discounts into account, your start point is reduced from 48 months to 31 months’ imprisonment.
[37] Finally, you entered a plea of guilty at an early stage on 1 November 2019.17 Therefore, it is appropriate that you be given the full 25 per cent discount for that plea.18 This brings your end sentence down to 23½ months’ imprisonment, which means that home detention can be considered.
Home detention
[38] A useful summary of the principles that apply in relation to home detention were set out in Brittin v Police. I will now go through those principles. The Court said:19
16 E (CA689/10) v R [2011] NZCA 13, (2011) 24 CRNZ 411 at [71].
17 Section 9(2)(b).
18 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
19 Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55] (citations omitted).
(a)Imprisonment is a measure of last resort.
(b)A sentence of home detention is a severe sentence, second only to a sentence of imprisonment in the hierarchy of offences in s 10A of the Sentencing Act.
(c)When considering the imposition of a sentence of imprisonment, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(d)When a Court is considering sentencing for the purposes of deterrence, accountability and denunciation, amongst other purposes, it must not impose a sentence of imprisonment unless it is satisfied that those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 of the Act.
(e)A sentence of home detention carries with it in considerable measure the principles of deterrence and denunciation.
It is an error of law if the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.
(g)One of the purposes of sentencing is to assist in the offender’s rehabilitation.
(h)The judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[39] The Court of Appeal in R v Hill noted that where significant discounts have been made to reflect an offender’s personal circumstances, those circumstances will also be relevant to whether home detention is appropriate.20
[40] On your behalf, Ms Hughes has submitted to me that home detention is the appropriate penalty because she says:
(a)your risk of reoffending is negligible;
(b)there were unique circumstances here where a vulnerable man was driven to the end of his tether and acted in a manner entirely inconsistent with the balance of his life;
20 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [36].
(c)incarceration would only further exacerbate your poor health; and
(d)the support of your wife, who hopes to reconcile with you.
[41] The Provision of Advice to Court report notes that you have now been on electronically monitored (EM) bail for some time and there have been no reported issues with non-compliance, which suggests you would also comply with conditions should you be eligible for home detention. This is the sentence the report writer recommends, with conditions that you:
(a)not enter the Taranaki district;
(b)do not associate with or contact your wife or Mr Chisnall without prior written approval of a probation officer;
(c)attend a psychological assessment with a departmental psychologist and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a probation officer; and
(d)inform a probation officer before entering into, resuming or ending an intimate relationship.
[42] This last condition is recommended due to the context of your offending occurring during the breakdown of the relationship with your wife. It would allow probation to monitor the situation and safety plan around any potential breakdown in an intimate relationship.
[43] Given your lack of prior offending, and taking into account your personal circumstances, it is my view that it is appropriate your sentence be converted into one of home detention. Your proposed residence and its occupants, which is where you have been residing while on EM bail, have been assessed as suitable. In the circumstances, it is my view that it would be appropriate to deduct one and a half months from your end sentence to reflect the time you have already spent on EM bail. This reduces the end sentence to 22 months, and I convert this to 11 months’ home detention.
Sentence
[44]Mr Faigan, would you now please stand while I impose sentence.
[45] On the two charges of attempted poisoning with intent to cause grievous bodily harm, you are hereby sentenced to 11 months’ home detention.
[46] In addition to the standard conditions, I impose the special conditions as set out in the Provision of Advice to Court report of 5 December 2019. You will serve the sentence at the address specified in that report.
[47] The Crown has requested an order for the destruction of the hose and gas bottle and I make that order.
[48]Mr Faigan, you may stand down.
Churchman J
Solicitors:
Crown Solicitor, New Plymouth cc: S Hughes QC
0
6
0