Schaumkel v The Queen - [2012] NZCA 569

IN THE COURT OF APPEAL OF NEW ZEALAND

CA361/2012
[2012] NZCA 569

BETWEEN STRANZ JEREMY SCHAUMKEL
Appellant

AND THE QUEEN
Respondent

Hearing: 14 November 2012

Court: Randerson, MacKenzie and Courtney JJ

Counsel: L M Sziranyi for Appellant
D R La Hood for Respondent

Judgment: 5 December 2012 at 3:00pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by MacKenzie J)

On 12 March 2012, the appellant was convicted following trial in the District Court in Wellington on one count of participation in an organised criminal group, one count of being a party to the theft of a motor vehicle, and two counts of conspiracy to steal a motor vehicle. He also pleaded guilty immediately before trial to one count of burglary. On 18 May 2012, Judge Barry sentenced the appellant to two years and three months imprisonment. He appeals against that sentence.
The notice of appeal was filed on 20 June 2012, a few days late. The Crown does not take issue with the delay. We grant an extension of time for appealing.
The appellant advances three grounds of appeal:
(a)that the Judge took an incorrect approach to sentencing by refusing to consider the burglary as unrelated to the wider criminal enterprise;
(b)that the Judge failed to apply the principle of parity in sentencing, which resulted in a manifestly excessive sentence for the appellant both because of the error the Judge made in respect of the burglary and because, even if that burglary were included in the wider criminal enterprise, in terms of parity with co-offenders the starting point for the appellant was too high; and
(c)that the Judge failed to have regard to the totality principle and this has resulted in a manifestly excessive sentence.
The Crown case was that the criminal group of which the appellant was a part, committed burglaries and thefts throughout the Wellington region between January and November 2010, the majority of offences being committed between September and November. The offences fell broadly into two categories. The first category was the theft of vehicles. Members of the group were variously involved in identifying suitable vehicles, stealing them, and participating in their disposal by changing the identity of the vehicles or having them stripped down and sold as parts. The theft and conspiracy counts which the appellant faced related to this category of offending. The second category was the burglary of 24 homes during the daytime while residents were not at home. Members of the group participated in different ways in the preparations for the burglaries, the burglaries themselves, and the disposal of the stolen property. The appellant faced no specific charges in relation to this burglary offending.
His burglary charge involved him and four associates, and was not alleged to be part of the activities of the criminal group. The offenders entered a residential property during the day and stole a DVD player and other items. While they were still at the address, an occupant arrived home.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Schaumkel v The Queen

Details

AGLC: Schaumkel v The Queen [2012] NZCA 569
Case: [2012] NZCA 569
Decision Date: 5 December 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Stranz Jeremy Schaumkel, contested the sentence imposed on him by Judge Barry in the District Court in Wellington. Schaumkel had been convicted on multiple counts, including participation in an organised criminal group, theft of a motor vehicle, and conspiracy to steal a motor vehicle, as well as pleading guilty to a charge of burglary. The appeal focused on the sentence of two years and three months imprisonment handed down by Judge Barry on 18 May 2012. Schaumkel's counsel argued three grounds of appeal, namely that the Judge erred in sentencing by not considering the burglary as unrelated to the wider criminal enterprise, failed to apply the principle of parity in sentencing, and neglected to consider the totality principle.

The court found that Judge Barry was correct in considering Schaumkel's involvement in the burglary, as he was integrally involved in both the burglary and motor vehicle offending as part of the criminal group. Regarding the principle of parity, the court held that the starting point for the appellant's sentence was appropriate, given that the sentences imposed on other participants in the organised criminal group ranged between three years and three years nine months imprisonment. Finally, the court found that the discount allowed by Judge Barry to reflect the totality of the sentence was within the available range and did not result in a manifestly excessive sentence for Schaumkel.

Ultimately, the appeal against the sentence was dismissed, and the Court of Appeal upheld the sentence imposed by Judge Barry.

Orders