In the Court Of Appeal of New Zealand
CA756/2009
[2010] NZCA 157

BETWEEN	NIGEL JOHN GILTRAP
Appellant

AND	THE QUEEN
Respondent

Hearing:	14 April 2010

Court:	Hammond, Chisholm and Priestley JJ

Counsel:	P B McMenamin for Appellant
K Raftery for Respondent

Judgment:	30 April 2010 at 2.30 p.m.

JUDGMENT OF THE COURT	

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)
The appeal
[1]		In October 2008 the appellant assaulted his partner by tipping a can of paint over her.  His victim obtained a temporary protection order under the Domestic Violence Act 1995.  Undeterred the appellant breached that order four times over the next month. 
[2]	 	The appellant was tried by a jury in the Christchurch District Court in October 2009.  He faced seven counts.  One was assault with a weapon laid under s 202C of the Crimes Act 1961.  The other six counts were laid under ss 19 and 49(1)(a) of the Domestic Violence Act 1965.  The jury acquitted him on two of the Domestic Violence Act counts and convicted him on the other five.
[3]		In June 2006 the appellant had been convicted of five breaches of a protection order obtained by a former partner.  He was thus not a first offender so far as domestic violence was concerned.
[4]		Judge Farish, who presided over the appellant’s trial, imposed a term of imprisonment, using the s 202C charge as the lead sentence, of two years and two months.  The appellant regards that sentence as being manifestly excessive and has appealed.
Background
[5]		The appellant was aged 42.  For approximately a year he and his victim had shared the victim’s home.  When the victim had returned from a trip overseas she asked the appellant to leave which he did.  The relationship had begun to cool.  
[6]		The day before the assault the victim had refused to go out with the appellant.  She was observed by the appellant having a drink with a friend.  Over the next 12 hours the appellant sent a large number of text messages to the victim threatening harm to both her and her home.
[7]		The next day the victim, unwisely perhaps, went to a workshop where the appellant was employed to talk to him and to express her concerns about the nature of his text messages.  When she arrived the appellant was painting a truck with a red paint.  The appellant’s version was that the victim approached without warning.
[8]		Nonetheless, as the victim approached the appellant he picked up the tin of paint and tipped its contents over her head.  The victim spent the next five hours in hospital where treatment was required in the hospital’s toxic unit to remove the paint from her skin.  The victim impact statement which the Judge had on sentencing refers to the assault causing extensive damage to her hair, blurring her vision, and triggering breathing difficulties and dermatitis.  Her hair had to be cut.  Her skin was painful for some weeks.  Her eyesight, at the time of sentencing, had not totally regained its former clarity.
[9]		Unsurprisingly the victim obtained a temporary protection order.  This did not deter the appellant who, over the next four weeks, deliberately and persistently beset the victim.  The Judge’s sentencing notes refer to the four charges on which he was convicted.  First, he wrote a sign expressing his love for the victim which he placed on a truck in front of her property.  Secondly, he arranged for a mutual friend to deliver flowers and a verbal message to contact her, which communication seems to have included the appellant persuading his former partner to contact the victim by telephone with a message that could be construed as threatening.
[10]	Thirdly, there followed a chance encounter on the road where, instead of driving on, the appellant stopped his car and endeavoured to engage the victim in conversation.  Finally, the appellant arranged for a friend to spray the victim’s lawn with a herbicide.  The appellant paid money for this service.  Substantial areas of the lawn died as a result.
[11]	The appellant’s previous convictions relevantly include five breaches of a protection order (relating to a previous partner).  The offending took place in May 2006, two and a half years previously.  
[12]	The Judge had both a presentence report and a psychiatric report.  In the interview with the probation officer the appellant protested his innocence.  The appellant had received a good education and had experienced no employment difficulties.  The report recommended a sentence of home detention coupled with community work.  
[13]	The Canterbury District Health Board psychiatric report disclosed no history or symptoms of mental illness or disorder.  Nor was there any evidence of pathological jealousy or abnormal thinking.  Nor, consistent with the appellant’s criminal history, was there any history of alcohol or drug abuse.  The report writer considered that the appellant constituted a risk of repeating his behaviour were a future relationship to end in similar fashion.  His behaviours were described as “harassing intrusion” based on acknowledged personality traits, the most significant of which were perseverance, a strong desire to win, and difficulty in letting relationships go.
The sentencing
[14]	Judge Farish described, and as trial judge she was entitled so to do, some of the appellant’s behaviour as being sinister.  She identified the appellant’s propensity for not being prepared to let a matter go.  The Judge referred to R v Zhou, a judgment of this Court, as authority for the proposition that “condign sentences are called for where there are repeat breaches or protection orders”.  Counsel were unable to assist as to why the Judge specified Zhou as a relevant authority.  It relates to allowing an appeal as a result of an inadequate propensity direction in a prosecution under the Harassment Act 1997.  It is probable that the Judge meant to refer to R v Nathan where comments about appropriately condign sentences for repeated breaches of protection orders are made at [25].  Both judgments stem from this Court’s Criminal Appeal Division which handles the bulk of appellate criminal work and which are helpful to and binding on trial judges.  So the Judge has appropriately followed the Nathan  approach.
[15]	The Judge, after reference to the two reports and the victim impact statement, referred to the 2006 offending.  She noted that various remands had an adverse effect on the appellant’s business which had been closed.
[16]	The Judge correctly used the s 202C charge for the lead sentence.  She identified as an aggravating factor the paint as a dangerous substance.  The start point which the Judge reached was 22 months imprisonment.
[17]	The Judge then turned to the four breaches of the protection order.  Rather than deal with those by way of concurrent sentences (which would inevitably have required an upward adjustment to the start point to reflect totality) the Judge instead imposed cumulatively three one month sentences (to run concurrently) on the 22 months on what she regarded as the less serious charges.  The Judge took a different view of the breach which led to the destruction of the appellant’s lawn.  In that regard she imposed a four month cumulative sentence .
[18]	Having thus reached 27 months the Judge uplifted the figure by three months to reflect the aggravating feature of the appellant’s previous convictions for breach of a protection order.  She rejected the Crown’s submission supporting a six month uplift.
[19]	Finally the Judge applied a four month reduction for the mitigating features of the loss of the appellant’s business and the various restrictions he had encountered as a result of imposed bail conditions.  The Judge rejected a non-custodial sentence as an option having regard for the need to deter, the seriousness of domestic violence, and the appellant’s personal character traits.  
[20]	Thus the two years two months term of imprisonment was the amalgam, before adjustments, of a 22 month sentence on the s 202C charge and cumulative sentences of five months imprisonment grounded on the breach of protection order convictions.
Submissions
[21]	Mr McMenamin’s submission was that, compared with other s 202C authorities, the 22 month start point was out of line.  Counsel referred us to a number of High Court and District Court authorities relating to assaults with a weapon in an endeavour to persuade us that the Judge’s 22 year start point was inconsistent.  He further submitted that a three month uplift to reflect the appellant’s previous convictions was unjustified.  In counsel’s submission the end sentence, reflecting totality across all five counts, should not have exceeded 18 months imprisonment.
[22]	Counsel additionally submitted the Judge had violated the principles of s 84 of the Sentencing Act 2002 by imposing cumulative sentences on to the assault charge and by further making one Domestic Violence Act sentence cumulative on the other three.  In counsel’s submission the offending was a connected series of offences.
[23]	A three month uplift, submitted Mr McMenamin, was equivalent to punishing the appellant twice for his 2006 offending.  He further submitted that the Court had failed to give sufficient mitigating weight to the appellant’s personal circumstances, being his mother’s recent death and the fact that his father suffered from Parkinson’s disease.
Discussion
[24]	We are unpersuaded by Mr McMenamin’s submissions.  The appellant’s assault on his partner was unprovoked and humiliating.  Far from taking stock of the situation the appellant then persisted in flouting the temporary protection order which the victim had obtained.  Certainly three of the breaches may have sat at the lower end of the domestic violence spectrum.  However, the appellant’s approaches were unwelcome and one, with its calculated reference to the fate of his previous partner, carried sinister overtones with it.  The attack on the victim’s lawn was spiteful and premeditated.  As Mr Raftery observed, it was an offence committed whilst the appellant was on bail for his previous offending, an additional aggravating factor the Judge could have mentioned.
[25]	The Judge erred, as Mr Raftery accepted, in a reference to the appellant’s 2006 offending being “almost identical” as it related to spraying the lawn of his former partner.  There was no 2006 conviction for offending of that type.  However, the Judge cannot be faulted for referring to the evidence at trial from the former partner who stated that the appellant had indeed subjected her lawn to the same destruction.
[26]	Mr McMenamim’s argument, based as it was on an examination of an appropriate start point for a s 202C offence, was unconvincing.  What matters, when scrutinising an end sentence which covers a number of convictions, is whether a sentencing Judge has correctly assessed totality.  
[27]	The Judge reached her 26 month end sentence by combining cumulative and concurrent sentences.  In the context of this offending it is a somewhat arid exercise to examine whether the five convictions were offences which were different in kind or a connected series for s 84(1) of the Sentencing Act purposes. 
[28]	We do not consider that the Judge was obliged to give a greater discount than the four months she did to reflect the appellant’s restrictive bail conditions and the loss of his business.  She did not stipulate the death and illness of the appellant’s mother and father respectively as a mitigating factor.  Nonetheless there was ample reference to those matters in her sentencing notes.
[29]	We do not consider the Judge exercised her sentencing discretion incorrectly in her consideration of s 16 and her decision not to impose a non-custodial sentence.  In our view the end sentence of two years and two months imprisonment, though stern, is within range having regard to the totality of the appellant’s offending.
[30]	We are thus not satisfied the sentence imposed was manifestly excessive.  
Result
[31]	The appeal is dismissed. 

Solicitors: 
Crown Law Office, Wellington, for Respondent