Schooner v Police - [2024] NZHC 638

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…

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 Schooner v Police

Details

AGLC: Schooner v Police [2024] NZHC 638
Case: [2024] NZHC 638
Decision Date: 22 March 2024

CaseChat Overview and Summary

The appellant, Jaymie Chase Schooner, appealed against his sentence of two years and three months’ imprisonment imposed by the District Court, arguing that the starting point adopted by the Judge was too high and resulted in a manifestly excessive sentence. The appellant had been sentenced in respect of charges of assault, failure to comply with a lawful requirement that he was forbidden to drive, dangerous driving, failing to stop to ascertain injury or death and driving with excess blood alcohol causing injury (x2). The respondent opposed the appeal. The Court dismissed the appeal and held that the starting point adopted by the Judge was not out of range and that the end sentence was not manifestly excessive.

The key issue on appeal was whether the starting point adopted by the Judge was within range. Both counsel accepted that Winiata v Police was the most comparable case. The Court held that the starting point in Winiata for the comparable driving offences was one of three years’ imprisonment. A starting point of two years would not be sufficient to reflect the seriousness of the appellant’s driving offending because it resulted in serious injury to two of the victims and was the result of drink driving. The driving offending occurred while the appellant was unlicenced and forbidden to drive and, at the time of the offending, he was subject to a sentence of supervision. The starting point for the assault was unimpeachable given a proper analysis of the facts to which the appellant pleaded and the victim impact statement. The uplift and deductions were not challenged and appropriately so. An uplift of 10 per cent for personal aggravating factors would not have been justified. The deduction for personal mitigating matters was generous. It followed that the end sentence was not manifestly excessive. The appeal was dismissed.

Orders