Schell v Police - [2023] NZHC 636

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-000205

[2023] NZHC 636

BETWEEN
KYLE SCHELL

Appellant

AND

NEW ZEALAND POLICE AND CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing: 23 March 2023

Appearances:

E Stavrovska for the Appellant

K A Courteney for the Respondent

Judgment:

28 March 2023

JUDGMENT OF HARLAND J

Introduction

[1] The appellant, Kyle Schell, pleaded guilty to one charge of assault with intent to injure,1 and one charge of intentionally impeding breathing by the application of pressure to the throat and neck,2 following his acceptance of a sentence indication given by Judge Crosbie on 28 September 2022. He now appeals that sentence on the grounds that the sentence was manifestly excessive.

Principles on appeal

[2] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An

1 Crimes Act 1961, s 193; maximum penalty three years’ imprisonment.
2 Section 189A(b); maximum penalty seven years’ imprisonment.

SCHELL v POLICE [2023] NZHC 636 [28 March 2023]

appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5

Facts

[3] On 11 June 2022, the appellant was at home in Hornby, Christchurch. His partner, the mother of two of his children, was also present. A verbal argument between the two developed into a situation in which the appellant grabbed his partner around her throat and threw her on the couch. He applied pressure to her throat causing her to struggle for air. He then slightly released his grip allowing the victim to breathe, before applying pressure once again.

[4] The victim struggled in an attempt to escape. The appellant grabbed her by the scruff of her clothes near her neck and picked her up off the couch before immediately throwing her back down, causing her to land on the couch and floor. He then punched her about six times in the head and face area while she lay on the floor. When the victim raised her hands towards her face for protection, the appellant threw another punch, hitting her left wrist. Using his forearm, he applied pressure to her collar bone while she lay on her back, preventing her from getting off the floor. After a struggle, the victim broke free and called her mother for help.

[5] The victim’s injuries included a swollen left wrist and bruising to her…

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 Schell v Police

Details

AGLC: Schell v Police [2023] NZHC 636
Case: [2023] NZHC 636
Decision Date: 28 March 2023

CaseChat Overview and Summary

Kyle Schell pleaded guilty to assaulting his partner by applying pressure to her throat and neck, and to punching her while she lay on the floor. He appealed the 21-month prison sentence imposed on him by the District Court, arguing that it was manifestly excessive. The High Court of New Zealand was required to decide whether the starting point for the sentence was excessive, whether insufficient credit was given for mitigating matters, and whether imprisonment was the appropriate sentencing response.

The Court considered the starting point of 28 months and found it to be within the range, despite the appellant's argument that it was too high. The Court also examined the 15% discount given for the appellant's guilty plea and 10% for mitigating matters, concluding that the sentence was within the available range. The Court found that the Judge's decision not to impose home detention was rational, as the purposes of general and specific deterrence and denunciation would not be met if a term of imprisonment was not imposed. However, the Court did agree that post-detention special conditions were appropriate to best meet the principle of rehabilitation and reintegration.

The appeal was allowed in part, imposing the post-detention special conditions as recommended in the pre-sentence report for a period of six months. In all other respects, the appeal was dismissed. The Court ordered that the appellant serve a 21-month prison sentence, along with the post-detention special conditions.

Orders