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)

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.

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.
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.
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.
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.
A further disturbing feature of this case is that Mr Schimanski has a previous conviction for…

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 Schimanski v The Queen

Details

AGLC: Schimanski v The Queen [2018] NZCA 50
Case: [2018] NZCA 50
Decision Date: 14 March 2018 at 4 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Wallace Schimanski appealed against his sentence for wounding with intent to cause grievous bodily harm. Schimanski attacked the victim, rendering him unconscious twice, and leaving him with severe and permanent injuries. The sentencing judge had imposed a sentence of eight years and six months’ imprisonment. Schimanski’s counsel argued that the starting point of nine years was excessive, the uplift for past offending was inappropriate, and the discount for mitigating factors was inadequate. The Court of Appeal examined the arguments and found that the starting point was correctly set, the uplift for past offending was justified, and the discount for mitigating factors was reasonable. The Court concluded that the sentence was appropriate and dismissed the appeal.

The legal issues before the Court of Appeal were whether the starting point of the sentence was too high, whether the uplift for past offending was excessive, and whether the discount for mitigating factors was inadequate. Counsel for Schimanski argued that the starting point should have been lower, the uplift was unjust, and more credit should have been given for the mitigating factors. The Court of Appeal examined the arguments and found that the starting point was correctly set at nine years, the uplift was justified by Schimanski’s extensive criminal history, and the discount for mitigating factors was reasonable. The Court concluded that the sentence was appropriate and dismissed the appeal.

The Court of Appeal found that the starting point of nine years was appropriate, given the extreme violence, serious injury, and attack to the head. The Court noted that Schimanski had rendered the victim unconscious twice and carried out a vicious assault on an unconscious man. The Court also found that the uplift of 12 months for past offending was justified, given Schimanski’s extensive criminal history and the threat he posed to public safety. The Court further found that the discount for mitigating factors was reasonable, despite the late pleas and questionable expressions of remorse. The Court concluded that the sentence was appropriate and dismissed the appeal.

The Court of Appeal dismissed Schimanski’s appeal against sentence and affirmed the sentence of eight years and six months’ imprisonment. The Court found that the starting point, uplift, and discount were all appropriate, and that the sentence was justified by the extreme nature of the offending and the threat Schimanski posed to public safety.

Orders