Schuster v Police - [2012] NZHC 2718

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000082 [2012] NZHC 2718

BETWEEN TUNUSHIA WIKITORIA SCHUSTER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 16 October 2012

Counsel: T D Lancaster for Appellant
S A H Bishop for Respondent

Judgment: 17 October 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 10.30am on the 17th day of October 2012.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1] Ms Schuster has appealed a sentence of home detention imposed by

Judge Kelly in the Wellington District Court on 4 September 2012.

[2] Ms Schuster pleaded guilty in the District Court to four charges, namely: (1) Theft under $500;
(2) Driving with excess breath alcohol;

(3) Assault with a weapon; and

SCHUSTER V NEW ZEALAND POLICE HC WN CRI-2012-485-000082 [17 October 2012]

(4) Breach of community work.

[3] In her sentencing decision Judge Kelly adopted a starting point of 18 months’ imprisonment. This was uplifted by two months to reflect Ms Schuster’s previous convictions and offending while on bail. A deduction of four months was granted to take account of Mr Schuster’s guilty plea. This left an end sentence of 16 months’ imprisonment. Judge Kelly exercised her discretion to grant Ms Schuster home detention. Ultimately Ms Schuster was sentenced to eight months’ home detention.

[4] While accepting the appropriateness of this sentence for offending of this kind, Ms Schuster says that her personal circumstances make the sentence of eight months’ home detention manifestly excessive.

The offending

[5] On 9 April 2012 Ms Schuster entered the Noel Leeming store in Wellington. She uplifted a Sony i-Pod dock and placed it in a bag. She left the store without making any attempt to pay for that item. It was valued at $150.

[6] On 13 May 2012 Ms Schuster was the occupant of a vehicle that was stopped by police. While the police were dealing with the driver Ms Schuster got into the driver’s seat of the vehicle and attempted to drive away. She was later processed and found to be driving with a level of 662 micrograms of alcohol per litre of breath.

[7] The charge of assault with a blunt instrument occurred in connection with the drink driving offence. As Ms Schuster attempted to drive away a police officer motioned for her to stop the vehicle. Ms Schuster looked at the officer, yelled obscenities and gave the police officer a finger gesture. Ms Schuster revved the car and accelerated towards the police officer. The officer managed to move swiftly enough to evade the moving vehicle.

[8] The offence of breaching community work occurred on 29 June 2012 when

Ms Schuster failed to report to the probation service as required.

Basis of appeal

[9] Ms Schuster submits that Judge Kelly failed to properly take into account Ms Schuster’s personal circumstances, specifically that a custodial sentence will cause undue or even extreme hardship to her dependent children.

[10] Ms Schuster elaborates upon this submission by explaining:

(1)She…

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 Schuster v Police

Details

AGLC: Schuster v Police [2012] NZHC 2718
Case: [2012] NZHC 2718
Decision Date: 17 October 2012

CaseChat Overview and Summary

The case of Schuster v Police before the High Court of New Zealand involved Ms Tunusia Wikitoria Schuster appealing her sentence of home detention imposed by Judge Kelly in the Wellington District Court. Ms Schuster had pleaded guilty to four charges: theft under $500, driving with excess breath alcohol, assault with a weapon, and breach of community work. Judge Kelly sentenced Ms Schuster to eight months of home detention after starting with a base sentence of 18 months’ imprisonment, adjusted for previous convictions, bail breaches, and her guilty plea.

The primary legal issue was whether the sentence of home detention was manifestly excessive considering Ms Schuster’s personal circumstances, particularly the hardship it would cause her dependent children. Ms Schuster argued that her sentence should be reduced to community detention and intensive supervision to better accommodate her rehabilitation and the needs of her children. She highlighted her responsibility for the care of four children, including one with special needs, and the lack of support from family and friends.

The Court acknowledged the gravity of Ms Schuster’s offending and her prior convictions but also recognised the significant hardship the sentence of home detention would impose on her children. The Court decided that varying the terms of Ms Schuster’s home detention to better accommodate her caregiving responsibilities was the appropriate course. The Court extended the respite time for family shopping, allowed additional time for school runs, and permitted weekend outings with her children, while emphasizing that these variations did not preclude further adjustments by the probation service.

Orders