R v Gash - [2012] NZHC 3039

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2011-009-7799 [2012] NZHC 3039

THE QUEEN

v

PHILIP JOHN GASH

Hearing: 15 November 2012

Counsel: D J Orchard for Crown
A J McKenzie and R Ashton for Prisoner

Sentence: 15 November 2012

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1] Mr Gash, you are before me today for sentence on five counts: (a) wounding with intent to cause grievous bodily harm;1 (b) threatening to kill or do grievous bodily harm;2
(c) aggravated burglary;3

(d) assault with intent to injure;4 and

1      Crimes Act 1961, s 188(1).
2      Crimes Act 1961, s 306(1).
3      Crimes Act 1961, s 232(1)(a).
4      Crimes Act 1961, s193.

R v GASH HC CHCH CRI 2011-009-7799 [15 November 2012]

(e) male assaults female.5

[2] You were found guilty on those counts by a jury in this Court on 18 October

2012. That jury acquitted you of attempted murder. In my respectful view, the jury was entirely right to acquit you on that charge.

Details of offending

[3] Formerly you lived with your wife, Ms Jodi Archbold, at the scene of most of the crimes on which you have been convicted, a house in Riley Crescent, Woolston. Your marriage went sour. You and your wife separated. She took out a protection order. She also took up with another man, a Mr Davies. It is likely on the evidence that you were aware of that. On 9 April 2011 you went to the house at Riley Crescent. As a result a trespass notice was served on you warning you off that property for two years.

Threatening to kill – 16 April 2011

[4] On 16 April 2011 your wife visited you at your flat in Haast Street, Linwood. You tried to persuade her to drop the protection order. She, tried to persuade you to complete the Stop Violence programme that you were supposed to have completed as part of a sentence of supervision imposed for an earlier assault on your wife in
2009. You demurred. You told your wife that if she got the police involved again you would “cut her throat, cut her cat’s throat and cut the throat of anyone else who got in the way”.

21 June 2011 trespass

[5] On 21 June 2011 you breached the protection and trespass orders and went on to the property at Riley Crescent. A complaint was laid with the police.

5 Crimes Act 1961, s 194(b).

24 June 2011 incidents

[6] Early in the morning of 24 June 2011 you were apprehended by the police in Woolston. You were arrested for breaching the trespass order on 21 June, as I have described. The police took from you a large knife. You were bailed on condition that you not have any contact with your wife.

[7] You immediately breached that condition. Early that evening you returned to

Riley Crescent.

Aggravated burglary

[8] Your wife and Mr Davies were in a caravan in the driveway of the Riley Crescent house.…

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 Gash

Details

AGLC: R v Gash [2012] NZHC 3039
Case: [2012] NZHC 3039
Decision Date: 15 November 2012

CaseChat Overview and Summary

The defendant, Philip John Gash, was convicted of five counts of wounding with intent to cause grievous bodily harm, threatening to kill or do grievous bodily harm, aggravated burglary, assault with intent to injure, and male assaults female. The sentencing hearing was held in the Christchurch Registry of the High Court of New Zealand on 15 November 2012. The legal issues that the court had to decide included the starting point, aggravating and mitigating factors, and the minimum period of imprisonment. The court found that there were two aggravating features present, being entry into a dwelling and the use of a weapon. The court also considered two mitigating considerations, the spur of the moment offence committed in the course of an unexpected physical attack and the defendant's desistance from pressing home the attack after the victim screamed and lay still. The court decided that the offending falls within Band Two and adopted a starting point of five years' imprisonment on the lead charge of wounding with intent to cause grievous bodily harm. The court uplifted the start point by three months' imprisonment to take into account the other offending. The court also deducted four months' imprisonment for remorse and two months' imprisonment reflecting the injuries sustained following the defendant's apprehension by the victims. The court decided not to impose a minimum period of imprisonment. The final orders were that the defendant be sentenced to five years' imprisonment on the charge of wounding with intent to cause grievous bodily harm, and concurrently, one year imprisonment for aggravated burglary, six months' imprisonment for threatening to kill or do grievous bodily harm, six months' imprisonment for assault with intent to injure, and one month imprisonment for male assaults female. The total sentence was five years' imprisonment. The court also gave the defendant a Three Strikes warning.

Orders