R v Orchard

[2017] NZHC 3015

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-088-000071 [2017] NZHC 3015

THE QUEEN

v

PETER JOHN ORCHARD

Hearing:	6 December 2017
Counsel:	MB Smith for Crown AB Fairley for Defendant
Judgment:	6 December 2017

SENTENCING NOTES OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Whangarei. AB Fairley, Whangarei.

R v ORCHARD [2017] NZHC 3015 [6 December 2017]

Introduction

[1]      I begin by acknowledging the presence of your partner in the rear of the court. I grant the prosecution leave to withdraw charges 1, 4, 5 and 6.

[2]      Mr Orchard, you appear for sentence in relation to five charges:

(a)       Causing grievous bodily harm with intent;

(b)      Breaching a protection order;

(c)       Dangerous driving; and

(d)      Two charges of assault.

[3]      The lawyers agree I must impose a substantial term of imprisonment. You will now know that. The primary issue is: how long should your sentence be?

Facts

[4]      On 6 January 2016 you were driving your family to Kerikeri. Your partner was in the front passenger seat; your three children in the back seat. They were then aged

6, 8 and 11.  You were upset by a text message your partner had received.  The exact nature of the message is not set out in the summary of facts, which instead refers to a message concerning allegations about you.  But whatever its contents, you became very upset. You said “I don’t have anything to lose”. You made other like remarks.

[5]      You then deliberately drove off the road into several road signs.  You did not slow down.  You then drove at three lamp posts.  Before hitting the first of the three, you unclipped your partner’s seatbelt. And, you ensured the line of lamp posts was on your partner’s side of the car. You ran the first two lamp posts down. The third caused your car to flip, and to rest on its passenger’s side.   Your partner was knocked unconscious.  She had to be cut free.

[6]      You picked up a knife and piece of rope.   With them, you climbed a tree. Members of the public tried to stop you. You spat at them; you kicked another several times to the face, hence the charges of assault.

[7]      You tied one end of the rope around your neck, and the other to a branch. You jumped.  You fell approximately four metres.  You were cut down, including by a Police officer. You referred to your family as being dead to you. You said you wished you were dead too.

[8]      I pause here to commend the bravery of the Police officer and members of the public who came to your aid.  They helped you despite your violence. And, they put your safety before their own.

[9]      Your partner suffered bruising all over her body. Fortunately, she was not more seriously injured. Your children were physically unharmed.

[10]     Your offending occurred while you were subject to a protection order in relation to your partner, which became final in April 2015.

Starting point

[11]     Five features of your offending are aggravating, meaning they make it more serious. Some overlap. First, you used your car as a weapon. You also used the lamp posts as weapons by driving at and through them at speed, intending your partner to sustain the brunt of their impact.

[12]     Second, your partner was vulnerable as there was nothing she could do.  She was a passenger only. And, you undid her seatbelt just before impact with the first of the lamp posts.

[13]     Third, your offending involved extreme violence. As Mr Fairley observed this morning, cases of extreme violence typically involve a knife or a gun, or the direct application of force to the victim; for example, repeated blows to the head. However, by using your car as a weapon and unbuckling your partner’s seatbelt, you employed violence of a nature comparable to other cases of extreme violence. As I observed to

Mr Fairley earlier, it would be strange if your offending was not analysed this way, particularly as pathologists often use the analogy of a serious crash when explaining the level of force required to produce a serious or even deadly injury. As I said earlier, there is overlap between some of the aggravating factors.

[14]     Fourth, your offending involved something of an attack to the head.   To elaborate, by unbuckling your partner’s seat belt, it was likely her head would sustain much of the impact. You appreciated that.  I ask rhetorically, why else unbuckle it?

[15]     Fifth, your partner suffered physical harm. She was hospitalised for three days. As I have said, she was covered in bruises.  It is remarkable she did not sustain more serious injury—or worse. Your children were not harmed physically. That they were not is also extraordinary.

[16]     The psychological impact of your offending is unclear.  I have been informed your partner has “declined to engage” with Victim Support.  Consequently, I have no victim impact statement from her or in relation to your children.  This is because, no doubt, your partner continues to support you. You are fortunate for that.  However, it is inherently unlikely your family suffered no psychological harm.

[17]     The lawyers disagree into which band of a guideline sentencing judgment your offending falls.1  Mr Fairley contends your sentence should start at five to seven years’ imprisonment, which is in band two of a judgment called Taueki.   The Crown, however, submits your sentence should start between nine and 14 years’ imprisonment, which is band three of that judgment.

[18]     I consider the prosecution is correct because of the nature and number of the aggravating features, and their combination.  More particularly, I consider your case sits at the top of band two, shading into band three. To state the obvious, you intended to cause your partner really serious bodily harm by maximising the impact between the car and the lamp posts, all after you had unrestrained her, and while she was helpless. Her head was likely to sustain the worst of the impact. She and your children must have believed they were about to die.  It is fortunate no one did.

[19]     Bad as all this was, however, I do not regard your offending as warranting a

starting point near to the maximum penalty.  Sadly, worse cases can be imagined— and readily found. I adopt a starting point of nine years’ imprisonment, which is at the top of band two and the bottom of band three of the judgment I have explained to you.

[20]     Your offending breached the 2015 protection order, giving rise to another serious offence.  An additional six months is required.  And, you have repeatedly breached protection orders in relation to your partner. Your record makes this clear.

[21]     On 21 August 2015 you breached the final protection order.2   You committed a similar offence in early 2015 by breaching the protection order, presumably in relation to an interim order. A further increase of six months is required to reflect your tendency to ignore Court orders in relation to your partner.

[22]     I note in connection with each of the earlier breach of protection order offences, you have what appears to be associated convictions for violence. On 21 August 2015 you injured a victim with intent to injure him or her, and on 22 January 2015 you assaulted two victims.

[23]     It is not clear whether your partner was the victim on either or both of these occasions. Mr Fairley has relayed to me your instructions she was not. In the absence of contrary evidence, I proceed on that assumption. It is an important principle of our law that if an aggravating factor is disputed, it must be established by the prosecution beyond reasonable doubt. So again, I assume in the absence of evidence on this issue, your partner was not the victim on those earlier occasions of violence.  However, it is also clear those offences have some connection to your relationship, and you have a propensity for violence, albeit one that has arisen since 2015.

[24]     This produces an adjusted starting point of 10 years’ imprisonment.

Mitigating features

[25]     You are 38.  You are now familiar with the criminal justice system.  But, you had not committed any offence until 2015.   Your behaviour then changed.   The pre-sentence report refers to a serious work-related accident in late 2013.  You fell from a tree and suffered great injury.   The report offers this event as a possible explanation for what it describes as “significant behavioural change”.

[26]     You are assessed as being at high risk of causing harm to others and yourself. But as the report also notes, your risk level may diminish if you engage in treatment.

[27]     Mr Fairley emphasises two mitigating features. Your plea of guilty. And, your mental health.

[28]     First, your mental health. You obviously intended to take your own life in the immediate aftermath of your offending. But for the bravery of others, you might have succeeded.  You were diagnosed with post-traumatic stress disorder after your fall in

2013. You appear to have become dependent on alcohol since then.  Ill mental health can make offending less serious when it diminishes, or reduces, the offender’s culpability.   But even then, the Courts have said care must be taken if the same difficulty is liable to endanger the safety of others.

[29]     I have read and re-read the reports prepared by the psychiatrists, Drs Goodwin and Karayinnis.  Both refer to post-traumatic stress disorder and likely alcohol abuse. There is reference also to some symptoms of anxiety and depression in the wake of your fall.  However, you do not have a mental illness or mental disorder.

[30]     Totality of circumstance implies your workplace accident has contributed causally to your criminal offending, both generally and in relation to these offences for sentence. Your attempt to take your own life underscores this conclusion. So, your culpability for this offending is diminished—meaning reduced.

[31]     There is no prescription for the level of discount in this context. And, discount must be tempered by the fact you pose a danger to your partner and family, in part,

because of your difficulties. That is self-evident from this offending and your criminal record.  In short, your difficulties are something of a dual-edged sword.

[32]     Your letter to me says you want to change. I hope you do. I reduce the starting point by 15 percent.  But for the danger you pose because of your difficulties, this figure would have been higher.

[33]     This brings me to your guilty pleas. You were charged on 7 January 2016. You pleaded guilty on 7 September 2017.   Your pleas were entered following a plea arrangement in which other charges were to be withdrawn.   They now have (this morning).   Mr Fairley contends your sentence should be discounted by 25 percent because of your pleas.

[34]     I consider this level of discount a little too high, for, it is reserved for a guilty plea at the first reasonable opportunity.  It was clear by late May 2017 you were fit to stand trial.  Care must be taken to ensure discounts in this context are consistent and even-handed, otherwise those who plead guilty genuinely early are unfairly disadvantaged.  And as Mr Smith for the Crown observes, the case against you was very strong, or as he put it, “overwhelming”.   You benefited too from the plea arrangement. Twenty percent for this factor is appropriate, albeit probably generous.

[35]     Mr Orchard, please stand:

(a)       On the charge of grievous bodily harm, I sentence you to a term of six years and nine months’ imprisonment.

(b)      On  the  breach  of  protection  order  charge,  a  term  of  18  months’

imprisonment.

(c)       On   the    dangerous    driving   charge,    a    term   of   three   months’

imprisonment.

(d)      On the two assault charges, a term of three months’ imprisonment.

[36]     All terms are concurrent, meaning they operate at the same time. The effective sentence is therefore six years and nine months’ imprisonment.

[37]     Under s 85 of the Land Transport Act your disqualification period of six months is to commence when you are released from prison.

[38]     You may stand down.

……………………………..

Downs J