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Orchard v R [2019] NZCA 529

04 November 2019

Decision

PDF document icon JDG - CoA - 041119.pdf — PDF document, 430 KB (441242 bytes)

Summary

Applications to adduce fresh evidence declined. Appeal allowed.

The appellant was convicted on one count of wounding with intent to cause grievous bodily harm, one count of breaching a protection order, two counts of assault and one count of driving dangerously. Downs J sentenced Mr Orchard to six years and nine months' imprisonment on these charges. Mr Orchard appeals against sentence only.

Criminal law - Sentencing - starting point. Whether the Judge erred in adopting a starting point for the lead GBH offence that was too high.

Held: yes. Applying Zhang v R [2019] NZCA 507, having regard to the offending as a whole and the importance of not imposing guideline judgments in a mechanistic way, rather than searching for aggravating features and thereby boosting band standing in terms of R v Taueki [2005] 3 NZLR 372 (CA), the better approach is to look at the specific examples given in Taueki for band one and band two domestic violence offending, and to ask to which the new offending is more proximate. Here the offending was more proximate to the example given in Taueki for band one than the example given for band two offending. Although involving more than one aggravating feature, it was not premeditated and it did not cause serious and lasting injury. It lay on the borderline of bands one and two, warranting a starting point of six years and six months' imprisonment.

Criminal law - Sentencing - uplifts. Whether the Judge erred in giving uplifts for the protection order breach and prior offending that were too high.

Held: yes. The discrete six month uplift for the breach of protection order was wrong in principle, it being based on the same actus reus as the index GBH offence. The six month uplift for Mr Orchard's previous breach of order exceeded the prior sentence, the appropriate uplifts being no more than two months' imprisonment.

Criminal law - Sentencing - mitigation. Whether the Judge erred in giving a discount for the appellant's mental health issues that was too low.

Held: yes. A discount of 20, rather than 15, per cent properly reflects the causative effect of Mr Orchard's mental health disability on the offending perpetrated by him.