Schattanek v Police

[2025] NZHC 1586

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2025-404-92
[2025] NZHC 1586

BETWEEN  ZALMANN OTTO SCHATTANEK

Appellant

AND  NEW ZEALAND POLICE

Respondent

Hearing:                   10 June 2025 Appearances:        D Perić for Appellant

G Wilkins for Respondent

Judgment:                16 June 2025

JUDGMENT OF HARVEY J

This judgment is delivered by me on 16 June 2025 at 2.00 pm.

………………………………

Deputy Registrar

Solicitors:
Meredith Connell, Auckland

Counsel:
J Verry, Barrister, Auckland

SCHATTANEK v POLICE [2025] NZHC 1586 [16 June 2025]

Introduction

[1]    On 4 August 2024, Zalmann Schattanek was driving in front of the victim’s vehicle and slowed while passing over a speed bump.  Once past the speed bump,  Mr Schattanek accelerated and made an obscene gesture at the victim out of his driver- side window. Mr Schattanek then approached a second speed bump and slowed to an almost complete stop. The frustrated victim honked his horn. Mr Schattanek alighted from his vehicle with a concealed knife, approached the victim’s car, reached through the open driver-side window, and slashed the victim’s right arm twice. He then returned to his car, drove home and threw the knife out of the window onto the road. The Police recovered the knife and Mr Schattanek was arrested shortly afterwards.

[2]    Mr Schattanek pleaded guilty to one charge of injuring with intent to cause grievous bodily harm.1 He was sentenced on 14 February 2025 to 21 months’ imprisonment by Judge Thomas in the Waitakere District Court.2 Mr Schattanek now appeals his sentence arguing that a sentence of imprisonment, rather than home detention, was manifestly excessive. The Crown opposes the appeal.

District Court decision

[3]    The Judge identified the aggravating features of the offending as being the use of a knife, the potential for very serious injury or death, the extent of the injury on the victim (the emotional and psychological toll) and the vulnerability of the victim. His Honour adopted a starting point of four years’ imprisonment, the lowest available under R v Taueki for this type of offending,3 notwithstanding his comment that something “far higher  would  have  been  justified.”4  The Judge  then  provided  a 25 per cent reduction for Mr Schattanek’s guilty plea, a 10 per cent reduction for his youth, a five per cent reduction for his lack of previous convictions, and a 15 per cent reduction for personal circumstances. This resulted in a provisional end sentence of 21 months’ imprisonment.

1      Crimes Act 1961, s 189(1). Maximum penalty: 10 years’ imprisonment.

2      New Zealand Police v Schattanek [2025] NZDC 2970 [Decision under appeal].

3      R v Taueki [2005] 3 NZLR 372 (CA).

4 Decision under appeal, above n 2, at [6].

[4]    His Honour considered whether a community-based sentence would be appropriate. The Judge assessed the recommendations of the probation report and attempted to balance the importance of “keeping people out of prison” and the public interest in denunciation, deterrence and protection. His Honour concluded that a “sentence short of imprisonment would seriously undermine the public confidence in the Court’s ability to protect it and act in its best interest.”5 The Judge then imposed an end sentence of 21 months’ imprisonment.

Approach on appeal

[5]    The approach to sentence appeals is well-settled. The Court must allow the appeal if satisfied that there has been an error in the sentence imposed and that a different sentence should be imposed.6 The sentence must be shown to be manifestly excessive or wrong in principle.7

Should home detention have been granted?

[6]    Mr Perić for Mr Schattanek submitted that his youth, neurodiversity, lack of previous convictions and prospects for rehabilitation meant that home detention was the least restrictive appropriate outcome in this case. Mr Schattanek’s youth affected how the Court should consider the sentencing purpose of deterrence. Counsel contended that the fact of imprisonment, rather than its duration, is sufficient deterrence for young offenders. Mr Perić also argued that Mr Schattanek’s neurodiversity and his youth make imprisonment a more severe punishment.

[7]    Counsel outlined the specific challenges faced by Mr Schattanek in prison, including the allegation that another prisoner in his unit has been sexually harassing him by calling out his name and masturbating while Mr Schattanek walks past his cell. Mr Perić submitted that this has led to severe anxiety attacks, and Mr Schattanek now sees a mental health counsellor every Wednesday.

5 At [12].

6      Criminal Procedure Act 2011, s 250(2).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

[8]    In addition, counsel  contended  that  home  detention  is  justified  due  to  Mr Schattanek’s rehabilitative prospects, as evidenced by his attendance  at  the  Man Alive anger management programme and him having had community alcohol and drug services (CADS) arranged start prior to sentencing. Mr Schattanek has complied with his bail conditions at the proposed address and has positive file notes from prison. Mr Perić confirmed that Mr Schattanek’s proposed home detention address is suitable. While the PAC report writer referred to family harm events between Mr Schattanek and his mother, they are not recent and occurred during a time when the latter was still drinking. Mr Schattanek’s mother has been sober for some time  and  is  attending   12-step   meetings.   Further,   counsel   emphasised   that Mr Schattanek had previously been bailed to this address without incident.

[9]    Counsel argued that the primary consideration should be Mr Schattanek’s rehabilitative prospects. Mr Perić submitted such prospects are best served by a sentence of home detention rather than imprisonment. Counsel contended that imprisonment is leading to traumatisation, exposure to violence and victimisation by other prisoners. In addition, Mr Perić argued that rehabilitative programmes or courses available for those on a short term of imprisonment are limited. Further, counsel noted the pre-sentence report recommended a sentence of intensive supervision, community work and reparation (although this is not sought on appeal), and that the Police did not oppose a non-custodial sentence at sentencing.

[10]   For these reasons, counsel submitted that the 117 days Mr Schattanek had been in custody before the 10 June 2025 hearing have been sufficient to hold him accountable for the harm done to the victim and the community, to promote in him a sense of responsibility for and an acknowledgment of that harm, as well as denouncing his conduct and deterrence. Allowing Mr Schattanek to complete his sentence on home detention would continue to address these concerns and protect the community, while also enabling him to address his rehabilitative needs. Mr Perić contended that the conditions outlined in the pre-sentence report are appropriate and could include an alcohol and other drug testing provision.

[11]   Ms Wilkins for the New Zealand Police submitted that the Judge had recognised Mr Schattanek’s youth, neurological diversity and rehabilitative prospects

by the reductions provided at sentencing. Although counsel expressed sympathy for Mr Schattanek’s prison experience, she contended it is not for an appellate court to deem a non-custodial sentence as appropriate with the benefit of hindsight. Ms Wilkins argued that the focus must be on whether imprisonment was manifestly excessive having regard to the overall criminality of the offending and Mr Schattanek.8 In this sense, an appeal is about the correction of errors (rather than a “second shot” at sentencing) and must look at the circumstances at the time the sentence was imposed.9

[12]   Counsel emphasised the seriousness of the offending: it was a grave overreaction to a minor road rage incident; an act of violence with potentially fatal consequences. Ms Wilkins submitted the purposes of denunciation, deterrence and protection of the public are at the forefront of this case, and that it was open to the Judge to find that they outweighed the general interest in keeping individuals from prison.   In addition, counsel noted that the pre-sentence report demonstrated that   Mr Schattanek showed little remorse or insight into the effect of his actions, and that he was more remorseful about not being able to move on and make money.

[13]   Ms Wilkins also contended that home detention would have been insufficient to denounce and deter Mr Schattanek’s conduct and to promote in him a sense of responsibility. Accordingly, counsel argued the Judge did not err in imposing a sentence of imprisonment. Ms Wilkins submitted that the end sentence of 21 months’ imprisonment was not manifestly excessive.

Discussion

[14]   Mr Schattanek’s offending was a serious act of violence committed against a stranger over a minor road rage incident. As noted by the Judge, it will have a significant emotional and psychological toll on the victim, alongside the physical injuries. I also agree that Mr Schattanek’s negative experiences in prison are irrelevant to whether the Judge erred, and that this appeal is not a “second shot” at sentencing nor is it a resentencing.10 On the other hand, Mr Schattanek was only 19 years old at the time with no previous convictions. He also comes from a difficult background,

8      Leather v R [2011] NZCA 59 at [32].

9      Polyanszky v R [2011] NZCA 4 at [17].

10     Polyanszky v R, above n 9, at [17].

having his own “mountains to climb,”11 and has demonstrated rehabilitative prospects through his attendance at anger management programme and his attempts to attend CADS. Equally importantly, the pre-sentence report recommendation of a non- custodial sentence was not opposed by the Police at sentencing.

[15]   By a narrow margin, I consider that the sentence of imprisonment imposed by the learned Judge was manifestly excessive. The principles of deterrence, denunciation and protection of the community can be fulfilled by a sentence short of imprisonment. The Judge erred in finding otherwise. Mr Schattanek’s youth alters how the courts should assess the purposes and means of deterrence, the severity of a sentence of imprisonment, and his prospects for rehabilitation. Where appropriate, prioritising rehabilitation for young first-time offenders is in the best interests of public safety by avoiding a potential  descent  into  deeper  criminality  and  recidivism.12 Mr Schattanek’s compliance with community-based sentences is also untested, and he has demonstrated compliance both while on bail and in custody.

[16]   As foreshadowed, the pre-sentence report recommended a sentence of intensive supervision, community service and reparation, due to concerns about Police callouts for domestic violence at the proposed address. There was also concern about another occupant residing there on bail for burglary, drug use and drug supply charges. However, Mr Perić has confirmed that the family violence callouts are not recent and occurred when Mr Schattanek’s mother was still drinking. Counsel stated that she has been sober for some time and is attending 12-step meetings. Furthermore, the co- occupant bailed to the proposed address faces charges distinct from Mr Schattanek’s offending, and any associated risks relating to drugs can be managed by conditions requiring Mr Schattanek attend appropriate drug rehabilitation programmes.

[17]   For completeness, I also agree that a sentence of intensive supervision, even if accompanied by community work and reparation as recommended by the pre-sentence report, would not be sufficient to meet the purposes of denunciation and deterrence. A sentence of home detention, though less severe than imprisonment, still serves a punitive function which can help instil a sense of responsibility in Mr Schattanek for

11 Decision under appeal, above n 2, at [10].

12     See R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].

the harm he has caused. It also serves to protect the community while Mr Schattanek undergoes the rehabilitation he needs — such as further anger management programmes and counselling. Overall, I consider home detention to be the least restrictive outcome appropriate in the circumstances and, alongside the desirability of assisting in Mr Schattanek’s rehabilitation, I consider this principle of sentencing takes precedent on the facts of this case.

[18]   In summary, as the appellant has served approximately four months in prison, the balance of his sentence will be quashed and substituted with a sentence of six and a half months’ home detention. Given Mr Schattanek’s limited remorse and insight into his offending, I am also satisfied there is a significant risk of Mr Schattanek reoffending if he does not receive help with his rehabilitation.

Decision

[19]The appeal is allowed.

[20]   The appellant’s sentence is quashed and substituted with a sentence of six and a half months’ home detention at [redacted] Auckland.

[21]   In addition to the standard conditions under s 80C of the Sentencing Act 2002, the following special conditions are imposed:

(a)Mr Schattanek must complete an anger management programme or counselling, as directed by a probation officer.

(b)Mr Schattanek must complete a rehabilitative alcohol and drug programme, as directed by a probation officer.

(c)Mr Schattanek must complete any other programmes or counselling, if directed by a probation officer.

(d)Mr Schattanek must have no contact with the victim of his offending.

(e)Mr    Schattanek    must    comply    with    all    requirements    of    an electronically-monitored sentence.

[22]The following special post-detention conditions also apply:

(a)Mr Schattanek must complete an anger management programme or counselling, as directed by a probation officer.

(b)Mr Schattanek must complete a rehabilitative alcohol and drug programme, as directed by a probation officer.

(c)Mr Schattanek must complete any other programmes or counselling, if directed by a probation officer.

(d)Mr Schattanek must have no contact with the victim of his offending.

Harvey