The Crown has applied for leave to appeal discharges without conviction granted to a man who assaulted his best friend, wife and daughter in Queenstown last year.
Yesterday, Crown prosecutor Mary-Jane Thomas applied for leave before Justice Warwick Gendall, in the High Court at Invercargill, to appeal Judge John Brandts-Giesen's ruling, made in the Queenstown District Court in December.
The 58-year-old Central Lakes man, who has name suppression, had earlier admitted assaulting his wife, daughter and best friend on September 14, having discovered a text between his wife and friend declaring their undying love for each other.
Ultimately, Judge Brandts-Giesen found the gravity of the man's offending was low to moderate and the consequences of convictions were out of proportion.
At the time he said while on one level it was a ''nasty assault'', on another it had to be seen in context and there would be ''many people who would have done exactly what you did, even though it might be against the law to do so''.
He further stated it was ''a situation that does your wife no credit and does the [male victim] no credit''.
Counsel Louise Denton said the first comments were indicative of the judge understanding the defendant acted out of character.
With regard to the latter, she said it was ''unnecessary'' but should not be used against the defendant.
The man left the bar when he saw the text message, but then encountered the male victim in the CBD.
He assaulted his friend and then when his daughter intervened he grabbed her around the throat, pushed her down and held her there, causing bruising.
When the defendant's wife stepped in, he pushed her and she fell to the ground.
Ms Thomas submitted the matter ''became derailed'' during the gravity assessment because Judge Brandts-Giesen appeared to consider the offending or surrounding circumstances ''unusual''.
''Infidelity of itself is not an unusual phenomenon in society.
''Nor, in my respectful submission, is the discovery of infidelity.
''Nor is it ... in the context of domestic violence, or when assessing gravity, unusual that there may be actions arising ... out of what's seen as infidelity and the finding of infidelity.
''The sad reality ... of domestic offending that the courts grapple with daily ... is that it's not unusual at all.
''The learned district court judge erred in ... allowing mitigating factors to be taken into account ... that he ought not to have.''
Having made that error, she submitted he erred further in assessing the consequences of convictions.
Ms Thomas acknowledged the police had taken a neutral stance to the discharge application and the victims were supportive of the defendant.
''Nonetheless ... the decision ... was the court's decision and the court, in my respectful submission ... may have been overly affected by [the stance from other parties].''
Although Ms Denton agreed infidelity was not unusual, ''in [the defendant's] world, it was''.
The defendant had known the male victim longer than his wife, his reaction that night ''was very unusual'' and described it as ''visceral''.
''He did not see the situation coming''.
With regard to the more serious assault on his daughter, Ms Denton said it was not ''a traditional domestic violence incident'' and he had no idea whom he had grabbed until after the incident.
''He only became aware it was his daughter when she came up to him afterwards and said. 'Dad, look at what you've just done to me'.''
Justice Gendall reserved his decision on the appeal and made an interim order for name suppression, but asked for submissions from both parties as to continued name suppression.
