R v Schmalz

Case [2007] NSWDC 226
CITATION: R v Schmalz [2007] NSWDC 226
HEARING DATE(S): 28/08/07
20/09/07
 
JUDGMENT DATE: 
20 September 2007
JURISDICTION: Criminal
JUDGMENT OF: Conlon SC DCJ
DECISION: Convicted. Sentenced to a non-parole period of 4 years and 6 months with an additional period of 2 years and 6 months. Find special circumstances.
CATCHWORDS: Maliciously inflict GBH with intent - Victim Impact Statement - Standard Non-Parole Period - Plea of guilty - Statements by accused to psychologist
LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
CASES CITED: R v Berg [2004] NSWCCA 330
R v Way (2004) 60 NSWLR 168
R v Ohar [2004] NSWCCA 83
R v Pellew [2004] NSWCCA 434
R v Qatami [2001] NSWCCA 353
PARTIES: Crown
Nathan Schmalz (Accused)
FILE NUMBER(S): 07/41/0054
COUNSEL: Ms J Healey (Accused)
SOLICITORS: Mr A Kernaghan (Crown)

JUDGMENT

1 HIS HONOUR: The offender, Nathan John Schmalz, appears for sentence following his plea of guilty to one count of maliciously inflicting grievous bodily harm upon Cindy Pinney with intent thereby to do grievous bodily harm. The offence is contrary to s 33 of the Crimes Act and carries a maximum penalty of twenty-five years imprisonment. The facts are as follows:


      The offender and victim, Cindy Pinney, had been friends since February 2006. In the middle of November 2006 the offender moved into the premises of Mr Brett McAndrew-Jenkins at 23 Wegit Way, Warrawong. At the beginning of December Cindy Pinney also moved into those same premises and commenced a de facto relationship with the offender. On Saturday 16 December 2006 the offender and Ms Pinney attended the Illawarra Yacht Club and consumed alcohol. The offender also consumed a pill being methylamphetamine. Ms Pinney left the club at about 4pm as she had to pick up her young nieces. She returned to the club where she spoke briefly with the offender and then with her nieces went to the Wegit Way premises. Shortly after, the offender returned home they had a heated argument. The offender commenced hitting Ms Pinney with his hands to her face and top part of her body. He then grabbed her hair and shoved her face into a foot spa filled with water. He was shouting at her and punched her around the head. As Ms Pinney yelled out for help the offender placed his hands around her neck. In attempting to remove his hands from her neck she bent a fingernail. She had trouble breathing and thought she was going to lose consciousness. He continued to hit her causing a gash to her left wrist which later required sutures, a weapon was then being used. However, the nature of that weapon could not be identified. The offender then put Ms Pinney in the shower and turned it on. She recalled him trying to strangle her while she was in the shower. She was left dressed only in her underwear and lost consciousness. When she regained consciousness she noted blood in the shower and she could hear the offender…

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R v Schmalz [2007] NSWDC 226
Case
[2007] NSWDC 226
Decision Date

CaseChat Overview and Summary

The appellant, Mr. Schmalz, was convicted of the crime of maliciously inflicting grievous bodily harm (GBH) with intent. The matter was heard in the Supreme Court of Victoria. The appellant had entered a plea of guilty to the charge and the victim provided a victim impact statement which was considered by the court. The primary legal issue before the court was to determine the appropriate sentence for the appellant, taking into account the severity of the crime, the appellant's plea, and the victim impact statement. The court also had to consider whether there were any special circumstances that would warrant a departure from the standard non-parole period.

In determining the appropriate sentence, the court noted that the crime involved a significant degree of premeditation and violence, which had caused substantial harm to the victim. The court also considered the appellant's guilty plea and the statements he had made to a psychologist. While these factors were mitigating, the court found that they did not warrant a substantial departure from the standard non-parole period. The court ultimately sentenced the appellant to a non-parole period of four years and six months, with an additional period of two years and six months. The court found that special circumstances existed, justifying the sentence imposed.

The court's reasoning and outcome were based on a careful consideration of the relevant factors, including the severity of the crime, the appellant's plea, the victim impact statement, and any mitigating factors. The court's sentence reflects a balance between the need for punishment and deterrence, and the need to consider the appellant's personal circumstances and any mitigating factors. The final orders of the court were that the appellant be convicted and sentenced to a non-parole period of four years and six months, with an additional period of two years and six months, and that special circumstances be found.

Orders

Orders of the court

Convicted. Sentenced to a non-parole period of 4 years and 6 months with an additional period of 2 years and 6 months. Find special circumstances.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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