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 face and head area.

3      Criminal Procedure Act 2011, ss 250(2) and 250(3).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

5      Ripia v R [2011] NZCA 101 at [15].

District Court decision

[6]        With reference to Shramka v R, the Judge identified several aggravating factors relating to the offending, including the victim’s vulnerability. He referred to the fact that part of the assault occurred while the victim was on the floor and he referred to the aggravated nature of the assault, involving several punches to the head. The Judge saw no reason to deviate from the starting point he had adopted for the sentence indication. At that hearing, the Judge had determined that the offending was at the lower level of that identified by the Court of Appeal in Shramka v R and, with the inclusion of the ancillary assault, indicated that a starting point in excess of two years would be appropriate, also accounting for previous convictions.6 The Judge set the starting point at two years and four months, consistent with the sentencing indication given previously. He gave a 15 per cent discount for the appellant’s guilty plea, and a further 10 per cent for issues in the appellant’s past, his work with a mental health clinician in prison, and his expression of remorse. The end sentence was one of 21 months’ imprisonment.

[7]        The Judge then referred to the victim impact statement, in which the victim expressed that the relationship had “always been traumatic”. This statement was supported by a significant family harm report which indicated the relationship was a troubled one. The Judge noted that the victim said she was scared for her safety, lacked the strength to leave the appellant, feared him and worried for her children, who she said were present during the incident. He further noted that the victim referred to the appellant’s “unpredictable physical and mental violence”. To counterbalance this, the Judge noted that the appellant had apologised via a letter to the victim, and he recorded the appellant’s advice, via his counsel, that, from his perspective, the relationship between him and the victim was over.

[8]        The Judge then referred to the appellant’s previous convictions for violence, of which there are two; a common assault and a male assaults female, both in 2016. He also noted the appellant’s convictions for breaches of sentences and bail conditions.

6      Shramka v R [2022] NZCA 299.

[9]        The Judge applied a 15 per cent discount for the appellant’s guilty plea and a further 10 per cent for other mitigating matters, leaving an end sentence of 21 months’ imprisonment.

[10]      Although the Judge acknowledged that the offending was not the “worst…in the world”, he rightly regarded it as a serious assault. As a result, he considered that specific and general deterrence and denunciation were the purposes of sentencing most relevant to the sentencing exercise. He said:7

[18] I have also got [to] deter you as I said you have got a pattern [of] offending. It is not the worst violent offending in the world previously but this is getting up there and the sentence the Court will impose today needs to deter you as well as send a deterrent message to the community that domestic violence is not only frowned upon but dealt with sternly by the courts. And I need to denounce your conduct. It is overbearing. It is controlling and I cannot say it any better than the victim said herself in the victim impact statement.

[11]      The Judge next considered whether a non-custodial sentence would be appropriate. He referred to concerns raised by Corrections about the appellant’s suitability for such a sentence but noted that he had not had any issues on a previous home detention sentence. He then referred to the sentence of intensive supervision the appellant received in relation to driving offences noting that the offending for which he was being sentenced had been committed while he was subject to that sentence.

[12]      After referring to the fact that the decision to sentence a defendant to home detention is discretionary, the Judge identified that the fundamental issue for him was whether a sentence of home detention would meet the need for the sentence to reflect the principles of deterrence and denunciation, but he also noted that rehabilitation was a factor to be borne in mind.

[13]The Judge then said:

[23]      Now I am told that if you are in prison you can do the MIRP. That is not available to you on the outside. I am told that the SRP is available but it is considered that that may not be sufficiently intense for you to address your offending [supportive] attitudes. I am told that the ACC counselling in order to address your own experience as a victim earlier in your life would be available upon your release but not necessarily while in prison although my

7      Police v Schell [2022] NZDC 24230.

experience on the parole board is that ACC counselling is available for those in prison.

[24]      I do believe on an informed basis that the MIRP is the best departmental programme for a man who continues to offend in a violent way and who is unable to complete his sentences in the community. I also believe that a sentence of home detention would in your case be insufficient to meet the wider issues of denunciation and deterrence.

[14]      The appellant was therefore sentenced to 21 months’ imprisonment and a final protection order was made in favour of the complainant.

Discussion

[15]      Ms Stavrovska, for the appellant, submitted that the sentence was manifestly excessive for three reasons. She submitted that the starting point was excessive, insufficient credit was given for additional personal factors and home detention ought to have been imposed as it was the least restrictive sentence.

[16]      Ms Courteney, for the Crown, submitted the sentence was, in all respects, within range and the appeal should be dismissed.

Was the starting point excessive?

[17]      When this matter was first called before the High Court, reference was made to the Judge’s sentencing indication notes in which he said that the starting point he would adopt was “in excess of two years, and it may be 2.6 or 2.4 months”.8

[18]      An issue arose as to whether this meant 26 or 24 months’ imprisonment or whether it meant 30 or 28 months’ imprisonment. This issue was addressed by Mander J in his minute of 1 March 2023.

[19]      After taking instructions, Ms Stavrovska filed a memorandum dated 20 March 2023 in which she relayed her instructions that the appellant did not wish to make any application to vacate his plea and wished to proceed with his appeal as per his original submissions. In her memorandum, Ms Stavrovska noted that the main basis of the appeal was that the sentencing Judge had erred in his decision not to commute the sentence to home detention.

8 At para [1].

[20]      Ms Stavrovska submitted that the nominated starting point of 28 months was too high. She referred to Ngataki v Police in which both the strangulation and associated assault charge attracted a starting point of two years’ imprisonment.9 With reference to the cases cited by the Crown to support the Judge’s starting point,10 Ms Stavrovska submitted all were distinguishable on the facts and all were examples of more serious offending. She relied particularly on the fact that, in Bowring, the offending could be described as prolonged violence over a one month period; in Houkamau, the choking event lasted for around one minute and, in Lowery, the offending occurred over a two day period. Ms Stavrovska submitted that the starting points adopted in those cases (Bowring 20 months’ imprisonment; Houkamau 24 months’ imprisonment; Lowery 24 months’ imprisonment) called into question the starting point adopted by the Judge in this case.

[21]      Ms Courteney, for the Crown, submitted that Ngataki involved less serious offending. She submitted the offending in this case was more serious because the appellant threw the victim twice (once by picking her up by the neck), the strangulation was coercive involving the release and reapplication of pressure, the offending involved a beating to the head and face as the victim lay on the floor attempting to protecting herself and there was ongoing restraint via pressure, preventing her from rising from the floor.

[22]      Having reviewed the cases, I consider Judge Crosbie’s starting point of 28 months to be a stern one, but one that was open to him - that is, it was within the available range of starting points based on those facts.

[23]I conclude that the starting point adopted by the Judge was not excessive.

Was insufficient credit given for mitigating matters?

[24]      The Judge deducted 15 per cent to reflect the appellant’s early guilty plea with a further 10 per cent to take into account his remorse, cooperation with support workers in custody and his extremely troubled background. Ms Stavrovska submitted that a discount of 15-20 per cent would have been more appropriate. Ms Courteney

9      Ngataki v Police [2022] NZHC 1952.

10     Bowring v Police [2020] NZHC 3252; Houkamau v Police [2019] NZHC 2743; Lowery v R [2020] NZHC 667.

submitted that an additional discount of five per cent would amount to tinkering and that an additional 10 per cent was not justified.

[25]      In response to the Crown’s submission that five per cent would amount to tinkering, Ms Stavrovska submitted that it would, nonetheless, have a significant impact on the appellant because the end term of imprisonment would be reduced to one of 19.6 months, as opposed to 21 months and 20 per cent would reduce it to 18.2 months. There is merit in Ms Stavrovska’s approach. It is easy to consider deductions for mitigating matters as percentages and therefore take the view that the smaller the percentage difference, the more likely this can be characterised as tinkering. I accept that the reduction of a term of imprisonment by 1.4 or 2.8 months is important in terms of time served from a defendant’s perspective.

[26]      However, I am not persuaded that an additional discount should be allowed on appeal. I agree that a 15 per cent discount for mitigating matters could have been adopted but, equally, 10 per cent was within range. I decline to interfere with the sentencing Judge’s discretion to adopt the lower end of the available range.

Was imprisonment rather than home detention the appropriate sentencing response?

[27]      The Judge was clearly of the view that the medium intensity rehabilitation programme (MIRP), which is currently only available in custody, was the rehabilitative response most appropriate for the appellant. Without doubting that he may have been correct about this, the difficulty with the Judge’s approach is that there was no ability to guarantee that this programme would in fact be made available to the appellant while he was in custody. It has in fact transpired that the appellant has not been assessed as a suitable candidate for the programme. Were this to have been the only reason for the Judge’s decision not to commute the end sentence to one of home detention, I would have allowed the appeal. However, it was not the main or only basis for his decision.

[28]      The Judge articulated that, in his view, the purposes of general and specific deterrence and denunciation would not be met if a term of imprisonment was not imposed. There is of course the competing purpose of imposing a sentence that assists

in an offender’s rehabilitation and reintegration,11 but this purpose can be met if a defendant is considered suitable for a programme while in prison or when on home detention. In other words, both sentencing options can allow this to occur. This is particularly so if post-detention conditions are imposed. In this case, the Judge did not impose the recommended special release conditions put forward by the Provision of Advice to Courts report. In fact, he did not mention it.

[29]      Ms Stavrovska’s instructions are that the appellant is keen to avail himself of such conditions if his appeal against the imposition of the term of imprisonment is not allowed.

[30]      I am not persuaded to interfere with the Judge’s discretion not to impose home detention. There was a rational basis available on the facts of this case for the Judge to conclude that the principles of sentencing favoured the defendant serving a term of imprisonment rather than home detention. However, I agree that post-detention special conditions are appropriate to best meet the principle of rehabilitation and reintegration.

Outcome

[31]      The appeal is allowed in part by imposing the post-detention special conditions as recommended in the pre-sentence report for a period of six months

[32]In all other respects, the appeal is dismissed.

Harland J

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch.

11     Section 7(1)(h).