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Schuster v R

Schuster v R

Case [2011] NZCA 343 26 July 2011

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA94/2011
[2011] NZCA 343

BETWEEN CORRIE RON SCHUSTER
Appellant

AND THE QUEEN
Respondent

Hearing: 7 July 2011

Court: Glazebrook, Rodney Hansen and MacKenzie JJ

Counsel: A M Dooney for Appellant
B D Tantrum and M R Walker for Respondent

Judgment: 26 July 2011 at 11.30 am

JUDGMENT OF THE COURT

A Leave to appeal is granted and the appeal is allowed.

BThe sentence of two years nine months’ imprisonment is quashed. In its place we impose a sentence of two years and six months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

Mr Schuster was found guilty after trial by a judge and jury of one count of burglary and one count of injuring with intent to injure. On 2 December 2010, he was sentenced by Judge Thorburn to two years and nine months’ imprisonment on each count (concurrent).
Mr Schuster seeks leave to appeal out of time against his sentence, contending it is manifestly excessive as a result of the sentencing judge:
(a)failing to take into account the time he spent on Electronically Monitored bail (EM bail); and
(b)adopting an excessively high starting point.

Factual background

Mr Schuster and his co-offender entered the house in which the victim was sleeping by forcibly opening a locked door. They went to the bedroom where the victim was sleeping. They dragged him from his bed and punched him repeatedly around the head. The attack did not end until the former partner of the victim entered the bedroom and pleaded for them to stop.
As a result of the attack, the victim required overnight hospital treatment. He had swelling and bruising to the left cheek and around the left eye and ear, and lacerations under the eye and to the neck. He was found to have a perforated ear-drum that needed to be drained. He suffered considerable pain and for some time after the attack was anxious and had trouble sleeping.

Sentencing decision

Judge Thorburn referred to R v Harris,[1] where this Court held that in cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) sentencing on a charge of injuring with intent to injure may be based on the following bands and starting points:[2]
·Band one:       where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate: R v Taueki.[3]
·Band two:       where the injuries are moderate, sentences of up to two years’ imprisonment can be justified.
·Band three:     for serious injury, sentences from 18 months up to the maximum of five years can be justified (subject to complying with s 8(c)(d) of the Sentencing Act 2002).
[1]      R v Harris [2008] NZCA 528.
[2] At [10].
[3]      R v Taueki

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 R

Details

AGLC: Schuster v R [2011] NZCA 343
Case: [2011] NZCA 343
Decision Date: 26 July 2011

CaseChat Overview and Summary

Corrie Ron Schuster appealed against his sentence of two years and nine months' imprisonment on charges of burglary and injuring with intent to injure. The Court of Appeal of New Zealand granted leave to appeal out of time, considering the contention that the sentence was manifestly excessive due to the sentencing judge failing to account for the time Schuster spent on electronically monitored bail and adopting an excessively high starting point. The factual background of the case involved Schuster and a co-offender breaking into a house and assaulting the victim, resulting in significant injuries.

The legal issues before the Court of Appeal involved determining whether the starting point for sentencing was appropriate and whether sufficient credit was given for the time Schuster spent on electronically monitored bail. The Court found that while the starting point was appropriate, the sentencing judge did not consider the time Schuster spent on electronically monitored bail, which warranted some discount. The Court of Appeal concluded that a reduction of three months in the sentence was warranted, resulting in a final sentence of two years and six months' imprisonment.

The Court of Appeal granted leave to appeal and allowed the appeal, quashing the original sentence of two years and nine months' imprisonment. In its place, the Court imposed a sentence of two years and six months' imprisonment. The Court of Appeal considered the starting point for sentencing appropriate but found that the sentencing judge had not adequately considered the time Schuster spent on electronically monitored bail. As a result, the Court of Appeal reduced the sentence by three months, leading to the final sentence of two years and six months' imprisonment.

Orders