Schuster v Police
[2012] NZHC 2718
•17 October 2012
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 has day to day care of four children, and weekend care of a fifth child;
(2)Ms Schuster’s children are aged between seven months and ten years old. Three are under five years old;
(3) Ms Schuster’s eldest child is intellectually disabled and requires
constant care;
(4)Each weekend Ms Schuster needs to collect and return her daughter from Ohariu Bay, Wellington and take her to where Ms Schuster lives in Cannons Creek, Porirua and return her at the end of the weekend;
(5)Ms Schuster has no support from family and very little from her friends;
(6)A custodial sentence will make the care arrangements for the eldest and fifth child very difficult. The children have health, educational, food and social needs beyond what can be accommodated in the one hour per week of respite from home detention that Ms Schuster has been granted; and
(7)Because Ms Schuster is disqualified from driving she cannot make effective use of the time that is available from her respite from home detention for grocery shopping.
[11] Ms Schuster submits that an alternative sentence of community detention and intensive supervision would have the necessary punitive effect and would better accommodate her rehabilitation.
[12] Ms Schuster has filed a full affidavit explaining her difficulties and in particular the impact upon her children of her sentence of home detention.
Analysis
[13] In R v Vailea the Court of Appeal said:[1]
... as was observed in R v Fate, “in appropriate circumstances” extending mercy to an offender is “a legitimate function of the criminal justice system”.[2] This Court in R v Ngeru stated, however, that while an appellate court “will respect” the exercise of mercy, the discretion is not unfettered and “the sentence ultimately imposed must take into account the interests of society in ensuring in appropriate cases that, notwithstanding the promptings of mercy, the sentence will still reflect the seriousness of the crime”.[3] The authorities make it clear that there must a basis for the approach taken and it follows that the matters on which the judge relies ought to be articulated clearly.
[1] R v Vailea [2010] NZCA 67 at [14].
[2] R v Fate (1998) 16 CRNZ 88 (CA) at 94.
[3] R v Ngeru CA459/94, 1 May 1995 at [4]-[5].
[14] Ms Schuster places reliance on Zweirs v Commissioner of Inland Revenue in which Allan J quashed a sentence of 12 months’ imprisonment for 13 counts of tax fraud and substituted a sentence of 350 hours’ community work.[4] His Honour adopted this approach because of the appellant’s personal circumstances. The learned High Court Judge found there were “compelling humanitarian considerations” in that:
[4] Zweirs v Commissioner of Inland Revenue HC Hamilton CRI-2006-419-130, 2 November 2006.
(1)the appellant had sole care of his son who suffered from ADHD and foetal alcohol syndrome;
(2) the appellant’s son required ongoing constant care;
(3) the appellant’s son’s disability was likely to deteriorate;
(4)the appellant’s son’s care often involved leaving home and taking him to do activities;
(5) there was no one else who could feasibly care for the appellant’s son;
and
(6) all of the circumstances concerning the appellant’s son were well
documented in an affidavit from a special needs teacher.
[15] In my assessment Ms Schuster’s circumstances are different from Zweirs. Some factors make the present case more serious. In this case Ms Schuster has the care of four children in addition to a child with special needs. On the other hand, Ms Schuster’s circumstances are less suggestive of the Court adopting a lenient approach. In particular, the Crown has signalled a willingness by probation services to accommodate Ms Schuster’s special needs by agreeing to variations to her terms of home detention so as to ensure that Ms Schuster’s ability to care for her children is not unreasonably compromised.
[16] I record also that in my assessment Ms Schuster’s offending is more serious than that referred to in Zweirs.
Analysis
[17] Mr Lancaster, counsel for Ms Schuster, responsibly acknowledged that were it not for Ms Schuster’s personal circumstances the sentence imposed by Judge Kelly would not be amenable to serious challenge. That concession was entirely appropriate when regard is had to the gravity of Ms Schuster’s offending and her prior convictions.
[18] Like Mr Lancaster I am concerned that Ms Schuster’s personal circumstances mean that the sentence of home detention is likely to cause serious hardship to Ms Schuster’s children. I am also concerned that Ms Schuster’s circumstances are such that unless it is modified, Ms Schuster is unlikely to comply with the home detention sentence.
[19] Ms Bishop, counsel for the Crown, correctly emphasised the appropriateness of the sentence imposed by Judge Kelly and that the terms of the sentence of home detention can be modified by the probation service in appropriate circumstances.
Determination
[20] In my assessment, the appropriate course is to vary the conditions of Ms Schuster’s home detention so as to ensure so far as is possible that the sentence of home detention will not unreasonably compromise Ms Schuster’s ability to be able to properly care for her children.
[21] Accordingly, I make the following additions and variations to the terms of Ms Schuster’s sentence of home detention. These additions and variations do not preclude the probation service from making other adjustments and variations to the terms of Ms Schuster’s sentence of home detention where the probation service considers amendments are necessary.
[22] The following additions and variations are made to the conditions of
Ms Schuster’s sentence of home detention:
(1)The current respite allowed to Ms Schuster for one hour to undertake the family shopping is extended to two hours.
(2)Ms Schuster is permitted to leave her home for one and a half hours each morning in order to get her children to school/kohanga.
(3)Ms Schuster is permitted to leave her home for one and a quarter hours each day to collect her children from school/kohanga and return them to her home.
(4)Ms Schuster is permitted to leave her home with one or more of her children for up to two hours each weekend to enable them to attend a park or other recreational facility approved by the probation service.
D B Collins J
Solicitors:
T D Lancaster, Wellington for Appellant
Crown Solicitor, Wellington for Respondent
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