Schimanski v The Queen

[2018] NZCA 50

IN THE COURT OF APPEAL OF NEW ZEALAND

CA457/2017
[2018] NZCA 50

BETWEEN	WALLACE SCHIMANSKI Appellant
AND	THE QUEEN Respondent

Hearing:	27 February 2018
Court:	Gilbert, Simon France and Whata JJ
Counsel:	G A Walsh and M J James for Appellant E J Hoskin for Respondent
Judgment:	14 March 2018 at 4 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

1. Mr Schimanski pleaded guilty to a charge of wounding with intent to cause grievous bodily harm.  He appeals a sentence of eight years and six months’ imprisonment imposed by Judge Marshall.[1]

Facts

[1]R v Schimanski [2017] NZDC 17030.

1. The victim and Mr Schimanski were known to each other.  On the day in question Mr Schimanski visited the victim’s home inquiring as to where the victim’s three children and flatmate were.  The victim said he was the only one home.

2. Later that day the victim heard a noise in his garage and went to investigate.  Mr Schimanski was sitting in the garage near the door.[2]

   [2]There were 12 cannabis plants in the garage.  In his pre‑sentence report Mr Schimanski says he was looking for options to fund a trip he needed to make to attend a funeral.  A robbery charge was dropped at the time Mr Schimanski pleaded guilty to the wounding charge.

3. Mr Schimanski said he was waiting for the flatmate.  The victim turned to leave and was struck on the head, a blow sufficient to render him unconscious.  When he regained consciousness, he was on the concrete floor.  As he got up he realised there was packing tape around his neck.  He tried to remove it but Mr Schimanski approached him, and tightened the tape.  This had the effect of choking the victim until he lost consciousness for a second time.

4. Late that afternoon the victim was discovered on the garage floor.  It is apparent from the medical evidence that after rendering the victim unconscious for a second time, Mr Schimanski continued to attack him.  Multiple blows to the head were diagnosed and what was presumably a stomp left a shoe imprint on the side of the victim’s face.  The victim was in a critical condition and spent more than two weeks in a coma.  He was eventually transferred to a specialist head injury facility before being released to his family’s care.  The brain injury will have ongoing effects for the rest of his life:

   (a)The victim had care of his three sons.  He now needs his parents’ assistance to care for both himself and the boys.

   (b)He has constant pain in an arm and a leg, and his walking is reduced to a shuffle.  Regaining full use of either is unlikely.

   (c)The victim was training for his heavy vehicle licence.  The best expectation at the moment is that he will be able to drive an automatic car again.

5. A further disturbing feature of this case is that Mr Schimanski has a previous conviction for manslaughter.  On that occasion, in anger, Mr Schimanski punched a frail elderly man who hit his head when falling and subsequently died.[3]  The potentially grave consequences of attacking the head were therefore well known to Mr Schimanski.

Sentencing

[3]R v Schimanski HC Hamilton CRI‑2006‑068‑215, 12 December 2006 at [2]–[6].

1. Judge Marshall considered the factors identified in the tariff case, R v Taueki and concluded there were three clear aggravating features — extreme violence, serious injury and attack to the head.[4]  The Judge placed the offending at the top of band two of Taueki, which covers five to 10 years; band three is nine to 14 years.  A starting point of nine years’ imprisonment was adopted.  Judge Marshall then uplifted the starting point by 12 months’ to reflect Mr Schimanski’s past offending.

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

2. The Judge had regard to the belated guilty plea (one week prior to the standby trial date) and Mr Schimanski’s remorse and offer to engage in restorative justice.  A total deduction of 15 per cent was made, with a further order that Mr Schimanski serve half the sentence before being eligible for parole.

Submissions on appeal

1. Mr Walsh first contends, by reference to other cases, that the starting point of nine years is manifestly excessive.[5]  At sentencing Mr Walsh had accepted the appropriate range was eight to nine years’ but submits that in hindsight that was an error and seven to eight years was the applicable range.  It is next submitted that a 12 month’ uplift was excessive and more credit was due for the mitigating factors.

Decision

[5]Rautahi v R [2011] NZCA 351; Gurran v R [2015] NZCA 347; Elisaia v R [2015] NZCA 516; Goulton v R [2014] NZCA 488; and Keil v R [2017] NZCA 563.

1. Nothing in the cases referred to has caused us to consider the starting point was other than correct.  We decline to detail them.  Each has features that are similar and matters that are quite different.  The key inquiry is whether this conduct and its outcome have properly been placed in the band of very serious but not the most serious (band three) attacks.  Of that there can be no doubt.  In this unprovoked attack Mr Schimanski has twice rendered the victim unconscious by completely different but equally serious means.  He has then, for reasons which remain elusive, carried out a further vicious assault on an unconscious man, leaving him near death and seriously affected for the rest of his life.  A starting point of less than nine years would be unexpected.

2. As this Court has said, care is needed with uplifts for past offences.[6]  However, in appropriate cases they are a legitimate and necessary feature of sentencing, and this is such a case.  Since his manslaughter conviction in 2006, Mr Schimanski has accumulated 27 further convictions.  These include convictions for assault, behaving threateningly, and three convictions for possessing offensive weapons.  Given the unprovoked nature of the present assault, he poses a clear threat to public safety and this needed to be reflected in the sentence.

   [6]Rautahi v R, above n 5, at [29].

3. We do not consider a 15 per cent discount for mitigating factors was inadequate.  There was scope for more but the pleas were late, and expressions of remorse must be viewed with some circumspection given all the circumstances outlined.  The Judge did have regard to these matters and gave some credit.  We do not consider he erred.

4. Finally, we record that in oral submissions Mr Walsh noted that at the time of his arrest Mr Schimanski was charged with numerous other offences.  These were processed more quickly and a total sentence of eight months’ imprisonment imposed.  It was submitted this should have been considered as part of a totality assessment.  We accept that sentence was relevant to the exercise but it does not alter matters.  The drug offences in question were unrelated and could fairly have been the subject of a cumulative sentence.  Nor in our view does a further eight months require a totality adjustment.

5. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent