Shramka v R

Case [2022] NZCA 299


IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA568/2021
 [2022] NZCA 299

BETWEEN

DANIEL WAYNE SHRAMKA
Appellant

AND

THE QUEEN
Respondent

Hearing:

2 December 2021 (further submissions 11 January 2022)

Court:

Kós P, Miller and Clifford JJ

Counsel:

J F Mather for Appellant
M L Wong for Respondent

Judgment:

7 July 2022 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Table of Contents
Para No

Sentence appealed
Appeal
Legislative framework
High Court authority

Sentencing strangulation — this Court’s approach

Starting point for strangulation offending

(1)    Highest level s 189A offending

(2)    Moderate s 189A offending

(3)    Lower level s 189A offending

Sentencing — this case

Uplifts
Personal factors
Allowance for time spent on EM bail
Conclusion

Result

[7]
[12]
[14]
[30]
[37]
[38]
[46]
[50]
[54]
[55]
[56]
[59]
[61]
[66]
[67]
  1. The appellant, Mr Shramka, and the complainant, C, were partners. In October 2015, the two were at their residence arguing in the lounge.  The argument became heated, and Mr Shramka punched C in the face, hard.  The resulting laceration required three stitches to close.  This incident resulted in a charge of male assaults female. 

  2. The two then separated and C obtained a protection order against Mr Shramka.  The protection order was made final in May 2017.

  3. In June 2019, Mr Shramka visited C at her home, with her permission.  An argument ensued and C told Mr Shramka to leave.  He refused.  C wanted to call 111 but Mr Shramka had hidden her phone in his pocket.  When C tried to get her phone back, Mr Shramka grabbed her by the neck with one hand, squeezing tightly.  He maintained his hold as he pushed C onto a bed, obstructing her breathing.  This continued for about half a minute.  C almost passed out.  She struggled against Mr Shramka, kicked out and managed to get him off her and push him backwards.  She rolled onto her stomach, at which point Mr Shramka punched her hard to the back of the head.  As C reached for her phone, which had fallen onto the ground, he punched her in the face. 

  4. The incident left C with scratches and red marks on her neck, swelling and bruising to her left eye, a laceration on her left cheek, a large welt on the left side of her head above her eye, and bruising to the back of the head.  C continues to be scared, struggles to sleep, needs to have a light on during the night, and remains in a state of constant nervous anxiety.

  5. Following a trial by jury, Mr Shramka was convicted of five offences: strangulation,[1] injuring with intent to injure,[2] male assaults female (the 2015 incident),[3] and breaching a protection order (x 2).[4]  The maximum penalty for strangulation is seven years’ imprisonment.  Mr Shramka received two years and three months’ (27 months’) imprisonment on the strangulation charge, with lesser concurrent sentences on the…

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Details
AGLC
Shramka v R [2022] NZCA 299
Case
[2022] NZCA 299
Decision Date

CaseChat Overview and Summary

Mr Shramka appeals against his sentence, contending that it is manifestly excessive. The appeal is dismissed. Mr Shramka was convicted of five offences, including strangulation, injuring with intent to injure, male assaults female, and two breaches of a protection order. He was sentenced to two years and three months’ imprisonment on the strangulation charge, with lesser concurrent sentences on the other charges. Mr Mather submits the starting point adopted by the sentencing Judge for the strangulation charge was excessively high and the discount allowed for time spent on electronically-monitored bail was inadequate. The Court, however, considered the starting point adopted was appropriate. The Court then considered the uplifts, personal factors, and discount for time spent on bail. The Court concluded the sentence was not manifestly excessive and dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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