Judge ‘misguided’ over discharge without conviction, overturned

The police have successfully appealed a discharge without conviction after multiple assaults in Queenstown.

The appeal was covered here: Infidelity, assault, discharge, appeal

ODT now reports:  Comments by judge were ‘misguided’

A man who assaulted his wife, daughter and best friend in Queenstown after uncovering an affair has been convicted after the Crown appealed a decision to discharge him without conviction.

The High Court yesterday released its decision, which overturns a district court judge’s decision.

Justice David Gendall found Judge John Brandts-Giesen erred by allowing the 58-year-old man, who has name suppression, to be discharged after he admitted the assaults on September 14 last year.

Comments the judge made at the time of his decision had been “misguided”, “unfortunate” and attempted to normalise and minimise the offending and blame the victims, Justice Gendall said.

Judge Brandts-Giesen first erred because his assessment of the gravity of offending was “clearly wrong” and secondly because there was insufficient material before him to find the consequences of convictions were out of all proportion to the gravity of the offending, he found.

In the Queenstown District Court, Judge Brandts-Giesen had said it was a “nasty assault” on one level but on the other it “had to be seen in its context” and the defendant “saw red” when he discovered the affair.

He then said “there would be many people who would have done exactly what you did, even though it may be against the law to do so” and, later, that it was a situation “that does your wife no credit and the [male victim] no credit”.

That was widely criticised, and led to the police appeal.

Justice Gendall considered Judge Brandts-Giesen’s assessment of the gravity was “misguided” and said he appeared to have been influenced by the views of the defendant’s wife.

The “unfortunate” comments the judge made during the hearing also seemed to be “influential” in his reasoning, Justice Gendall said.

“[The comments] attempt, first, to normalise and minimise the respondent’s offending and secondly, to blame the victims here … In my view, this is quite wrong and it worked to significantly derail the judge’s assessment of the gravity … here.”

Justice Gendall granted leave for the appeal, set aside Judge Brandts-Giesen’s decision, entered convictions on all three charges and ordered the matter be remitted to the Queenstown District Court for sentencing on May 7.

“For the avoidance of doubt, the sentencing process approach is to be conducted entirely afresh.”

Discovering a partner has declared love for a friend would understandably be very upsetting, but the appeal by the police and this ruling have made it clear that resorting to violence is not a justified response and there must be legal consequences.

4 Comments

    • Gezza

       /  March 16, 2018

      Certainly doesn’t surprise me after what I read of the case & the judge’s unfortunately silly comments.

  1. PartisanZ

     /  March 16, 2018

    Judge Brandts-Giesen should go … step down … resign … or get the sack …

    But no, his comments are just *misguided*, *unfortunate* and *silly* …

    and no doubt he’s a member of The Lodge.

  2. Pickled Possum

     /  March 16, 2018

    Here Comes The Judge By The Magistrates.

    “Yes here comes the judge
    I’d rather be lost in the jungle of Brazil
    Than to face the judge”