Schooner v Police
[2024] NZHC 638
•22 March 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-258
[2024] NZHC 638
BETWEEN JAYMIE CHASE SCHOONER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 March 2024 Appearances:
K J May for the Appellant
W J S Mohammed for the Respondent
Judgment:
22 March 2024
JUDGMENT OF HARLAND J
Introduction
[1] On 12 December 2023, Jaymie Schooner was sentenced to two years and three months’ imprisonment1 in respect of charges of assault,2 failure to comply with a lawful requirement that he was forbidden to drive,3 dangerous driving,4 failing to stop to ascertain injury or death5 and driving with excess blood alcohol causing injury (x2).6 Mr Schooner submits that the starting point adopted by the District Court Judge was too high, resulting in a manifestly excessive sentence. He appeals that sentence to this Court.
1 Police v Schooner [2023] NZDC 28015.
2 Crimes Act 1961, s 196 – maximum penalty of one year imprisonment.
3 Land Transport Act 1998, s 52(1)(c) – maximum penalty of $10,000 fine.
4 Section 35(1)(b) – maximum penalty of three months’ imprisonment or fine not exceeding $4500.
5 Section 36(1)(c) – maximum penalty of five years’ imprisonment.
6 Section 61(1)(a) – maximum penalty of five years’ imprisonment.
SCHOONER v POLICE [2024] NZHC 638 [22 March 2024]
[2]The respondent opposes the appeal.
[3] I have decided to dismiss the appeal. This judgment sets out my reasons for doing so.
Facts
[4] Although Mr Schooner was sentenced on six charges, effectively, they concern two incidents. I deal with them in chronological order.
Assault charge
[5] The first incident occurred on 2 June 2023 and it resulted in the charge of assault. I will say more about the charge itself shortly, but the following factual summary is taken from the summary of facts. This point is made because, on appeal, a slightly different narrative was provided.
[6] The summary of facts to which the appellant pleaded guilty outlines the following:
On Friday the 2nd of June 2023 the defendant, Jaymie SCHOONER, was at Pak’n’Save Northlands Mall, Christchurch.
At approximately 11:20am the victim […] a security guard, approached the defendant having been notified by member of staff regarding multiple unpaid hot food bags concealed in the defendant’s trolley.
On being confronted the defendant became incensed, forcing his body into that of the victims, forcing her backwards.
The victim made a request for urgent assistance over the store radio. The defendant briefly re-entered the supermarket before returning to the victim, striking her once around the face with a beanie he was holding.
The victim stumbled backwards and struggled to maintain her balance.
…
DEFENDANT COMMENTS
In relation to the assault, the defendant stated that he believed he had paid for all of his items, and when the security guard attempted to stop him, she grabbed his arm, causing him to become alarmed and aggressive. He stated he felt embarrassed by the guard doing this in front of everyone so hit her on the head with his soft beanie.
[7] On appeal, Ms May for the appellant explained that he had purchased a rotisserie chicken from the supermarket but had taken an extra foil bag because he was intending to divide the chicken between both bags. Ms May advised that the chicken had been properly purchased, the only issue was therefore the additional foil bag taken for the purpose I have outlined. As well, Ms May submitted that the appellant re- entered the supermarket voluntarily after being requested to do so and that the beanie was simply flicked towards the security guard as the appellant passed by, but it unfortunately connected with her face.
[8] It is not clear from the judgment under appeal whether this version of facts was outlined to Judge Couch, who was the sentencing Judge. However, the original charge laid was male assaults a female, a charge under the Crimes Act 1961 which attracts a maximum penalty of two years’ imprisonment. This was reduced to a lesser charge of assault under the Crimes Act, carrying a maximum penalty of one year imprisonment on 15 September 2023. The appellant pleaded guilty to the reduced charged on 15 September 2023.
[9] For the purposes of the appeal and consistent with the appellant’s explanation to the Police included in the summary of facts, I accept that the context to the assault is important and, while not excusing the appellant’s response, explains why he may have felt so aggrieved about being stopped by the security guard. But it must also be noted that the security guard was acting on advice from others and, in this sense, simply doing her job.
[10] The Judge referred to the impact of the appellant’s offending on the security guard, summarising what she had said in her victim impact statement in a way that was generous to the appellant. The victim impact statement itself referred to the appellant verbally abusing her. She described the assault as a slap to the head which at the time left her dazed and with blurry and bloodshot eyes that took about two weeks to settle down. She also referred to her balance being affected for three to four weeks after the incident.
Driving charges
[11] The next incident, on 18 August 2023, resulted in the charges of driving with excess breath alcohol causing injury (x2), dangerous driving, failing to stop after a crash to ascertain injury and failing to comply with a requirement not to drive. The last charge relates to the fact that, on 3 May 2018, the appellant was forbidden to drive until he had obtained the correct class of licence.
[12] At about 7.10 pm on 18 August 2023, the appellant was driving a Subaru Forester motor vehicle on Main North Road, Christchurch. He was unable to use his left hand to change gear or hold the steering wheel due to an injury and was using his right hand to do these things. Without indicating or reducing his speed, the appellant turned left into Tuckers Road. At the same time, a Toyota HiAce vehicle, occupied by a number of elderly people, was stopped on Tuckers Road at the intersection with Main North Road. There was a Nissan Dualis motor vehicle parked behind the Toyota HiAce.
[13] As the appellant’s vehicle turned into Tuckers Road, because of the speed it was travelling, it slid into the rear right of the Toyota HiAce, causing damage to the panels and shunting it with force into the kerb. The impact caused the left rear wheel to be crushed on the kerb and the tyre to detach. The appellant’s vehicle mounted the kerb onto the footpath, where it momentarily shutdown.
[14] The appellant immediately restarted his vehicle, accelerated heavily and struck the Nissan Dualis, causing damage to its left hand panel. The appellant then drove off down Tuckers Road. He was located shortly afterwards in the Subaru vehicle in a driveway nearby and was arrested.
[15] The evidential breath test the appellant was required to undertake returned a positive result of 489 micrograms of alcohol per litre of breath. The legal limit is 400 micrograms of alcohol per litre of breath.
[16] The drivers and two of the passengers in the vehicles the appellant hit were hurt. One was seriously injured, requiring two surgical interventions to remedy chest and rib fractures, a punctured lung and internal bleeding. This victim was hospitalised
for 10 days. Another was hospitalised and received a laceration, swelling and significant bruising to her right eye and upper arm because her head had struck a window in the van.
[17] The appellant admitted to the Police that he had been drinking prior to driving, describing himself as “wasted”. He believed he had been travelling at about 40 to 50 kph when he made the turn into Tuckers Road.
Previous convictions
[18] In terms of previous driving convictions, the appellant has three previous convictions for driving while disqualified or while his licence had been suspended or revoked, those convictions having been entered in August 2012, October 2013 and June 2015. On the last driving while disqualified charge, the appellant was sentenced to a term of imprisonment for three months cumulative on a more serious charge of wounding with intent to injure, in respect of which he received a sentence of two years’ imprisonment. He would have been unlikely to have received a term of imprisonment for this offence had there not been the more serious charge which required such a response.
[19] In terms of his prior convictions for violent offending, I do not consider them to be particularly relevant, given the nature of this assault. No real issue was taken with the uplift the District Court Judge imposed in this case to reflect that offending.
District Court Decision
[20] Judge Couch adopted the driving charges as the lead charges. He referred to this as “blatant offending” because the appellant knew he was affected by alcohol before he decided to drive, and he had attempted to drink two cups of coffee to “sober up”. The Judge considered that, given the extent of damage, it would have been obvious to the appellant that there was a real likelihood of injury to others but, nonetheless, he had restarted his car and tried to escape, thereby completely disregarding the impact on others involved in the collision.
[21] Taking into account totality, the Judge adopted a starting point of two years and eight months’ imprisonment. This was uplifted by one month to reflect the assault charge, leading to an adjusted starting point of two years and nine months’ imprisonment. A five per cent uplift was adopted for personal aggravating factors including the fact that the appellant was subject to a sentence of supervision for a previous assault when he offended and taking into account his list of relevant previous convictions.
[22] With regards to mitigating factors, the Judge referred to the fact that the appellant had entered guilty pleas to the charges at the earliest opportunity. A 25 per cent discount was adopted to reflect this.
[23] The end sentence imposed was therefore just under a term of 26 and a half months’ imprisonment, which the Judge rounded up to two years three months’ imprisonment.
Principles on appeal
[24] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence will be successful only if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 A court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.8
[25] When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the sentence imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.9
7 Criminal Procedure Act 2011, s 250(2) and (3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at [15].
9 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
Discussion
[26] The key issue on appeal is whether the starting point the Judge adopted was within range.
Winiata v Police
[27]Both counsel accepted that Winiata v Police is the most comparable case.10
[28] Mr Winiata, intoxicated on alcohol and methamphetamine, had been driving his car at high speed in a dangerous manner, clipping one car before crashing into a second car, causing injury to the driver, requiring hospital treatment. Mr Winiata ran from the scene and, when arrested, assaulted a female Police officer. At the time, Mr Winiata was indefinitely disqualified and subject to a zero-alcohol licence. He had five previous convictions for driving while disqualified and was on bail for two charges of driving while disqualified when he offended in this manner.
[29] Mr Winiata was charged with dangerous driving causing injury, driving with excess breath alcohol causing injury and failing to stop to ascertain injury after accident. There were additional driving while disqualified charges and a charge of assaulting the Police. Mr Winiata’s breath alcohol level was higher than the appellant’s and he had a more extensive history of driving related offending. Mr Winiata received an end sentence of two years, two months’ imprisonment which was upheld on appeal.
[30] The starting point adopted by the Judge in Winiata was a term of two years and three months’ imprisonment which the Court on appeal considered was stern but within range. The Judge had however uplifted the starting point to take into account the charges of failing to ascertain the well-being of the victim (three months), assault on the police officer (three months), three counts of driving whilst disqualified (six months) and to reflect Mr Winiata’s history of driving offending and the fact the offences before the Court were committed while he was on bail (four months).
10 Winiata v Police [2023] NZHC 3363.
[31] Ms May submitted that Mr Winiata drove dangerously for a longer period than the appellant but she accepted that the victims in in this case suffered greater injury. Applying Winiata as a suitable comparison, Ms May submitted that a starting point in the region of two years’ imprisonment would be appropriate in this case.
[32] Based on her assessment of a starting point of two years’ imprisonment, Ms May submitted the end sentence would therefore become one of under two years’ imprisonment so that home detention could be considered as the least restrictive sentence.11 Ms May submitted that, although the appellant did not have a suitable home detention address available when he was sentenced, one could be obtained if the sentence is reduced. She invited the Court to provide leave to apply for home detention if the appeal was allowed as she suggested.
[33] Mr Mohammed accepted that the driving offending in Winiata is broadly comparable to the present offending but he highlighted that the overall starting point reached in that case in respect of the driving offending was three years’ imprisonment, so that the starting point adopted by Judge Couch of two years and eight months cannot be said to be out of range.
Henderson v Police
[34] Another comparable case is that of Henderson v Police.12 In this case, Mr Henderson had pleaded guilty to dangerous driving causing injury (x4), driving with excess breath alcohol and a charge of failing to stop when required. He had driven his vehicle at excessive speed, at one point attempting to overtake another vehicle but, due to oncoming traffic, he pulled back into his lane. He struck the rear of another vehicle, causing it to spin out of control, where it ended up off the road in a drain.
[35] Three passengers and the driver sustained varying injuries. None of the injuries were as severe as the injuries suffered by the victim in this case who had to spend 10 days in hospital.
11 R v Gledhill [2009] NZCA 415 at [32].
12 Henderson v Police [2017] NZHC 2219.
[36] Mr Henderson then stopped several hundred metres down the road and left his vehicle before being arrested by Police. His breath alcohol level was 605 mcg/L of breath, somewhat higher than the appellant’s.
[37] The starting point adopted in Henderson was two years’ nine months’ imprisonment.
Additional matters
[38] Mr Mohammed submitted the appellant’s offending includes a separate assault charge which carries a maximum penalty of one year imprisonment, so that the uplift of one month adopted by the Judge could be described as “light” as an uplift of three months could well have been justified. Mr Mohammed referred to the aggravating factors of the appellant’s offending which include that the assault was on a person in a position of authority and that the driving offending resulted in very serious injuries and was the result of drink driving. He highlighted that the driving offending occurred while the appellant was unlicensed and forbidden to drive. He also referred to the appellant’s extensive demerit history, his sentence of supervision, his convictions for failing to comply with his home detention conditions and his refusal to comply with his driving prohibition.
[39] Mr Mohammed also submitted that the five per cent reduction to reflect the appellant’s history and the fact of offending whilst subject to sentence could also be seen as lenient. He noted that the appellant has three previous convictions for driving whilst suspended or disqualified and also has a significant history of violent offending, so that an uplift of 10 per cent could have been justified.
Conclusion
[40] I am not persuaded, bearing in mind the comparable cases, that the starting point adopted by the Judge in this case was out of the range available to him, and I agree with Mr Mohammed that the starting point in Winiata for the comparable driving offences was one of three years’ imprisonment. Certainly, a starting point of two years would not be sufficient in my view to reflect the seriousness of the appellant’s driving offending because it resulted in serious injury to two of the victims (and especially
one) and was the result of drink driving. As well, the driving offending occurred while the appellant was unlicenced and forbidden to drive and, at the time of the offending, was subject to a sentence of supervision.
[41] Likewise, the starting point for the assault is unimpeachable given a proper analysis of the facts to which the appellant pleaded and the victim impact statement.
[42] The uplift and deductions were not challenged, and appropriately so. However, contrary to Mr Mohammed’s submissions, in my view, an uplift of 10 per cent for personal aggravating factors would not have been justified.
[43]The deduction for personal mitigating matters was generous.
[44]It follows that the end sentence is not manifestly excessive.
Result
[45]The appeal is dismissed.
Harland J
Solicitors:
K May, Barrister, Christchurch
Crown Solicitor’s Office, Christchurch.
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