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High Court of New Zealand Decisions |
Last Updated: 31 December 2018
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IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
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CRI-2014-090-5632
[2015] NZHC 2833 |
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THE QUEEN
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v
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CORRIE RON SCHUSTER
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Hearing:
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22 October 2015
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Appearances:
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E Woolley for the Crown
A Maxwell-Scott and L Mulder for the Defendant
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Judgment:
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13 November 2015
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SENTENCING REMARKS OF THOMAS J
Meredith Connell, Auckland. Counsel:
A Maxwell-Scott, Auckland. L Mulder, Auckland.
R v SCHUSTER [2015] NZHC 2833 [13 November 2015]
Background
[1] Mr Schuster, you appear for sentencing having pleaded guilty to:
(a) one charge of aggravated burglary, which carries a maximum penalty of 14 years’ imprisonment;1
(b) one charge of careless discharge of a firearm, which carries a maximum penalty of three years’ imprisonment;2 and
(c) one charge of unlawful possession of ammunition, carrying a maximum penalty of four years’ imprisonment.3
Facts
[2] The offending involved two incidents that occurred on 12 October 2014.
Offending at Glenfield address
[3] The aggravated burglary charge relates to the events which occurred at a Glenfield address on the North Shore. At around midday, you went to your brother’s flat. He was not home at the time but one of his flatmates, who knew you, and her partner were present.
[4] You had a loaded, single barrel pump action shotgun. While in the lounge area, you fired a single round into the television which went through the television and into the wall behind. You then went into a bedroom where the flatmate was in bed with her partner. She sat up and asked you what you were doing. Without saying anything, you pointed the shotgun at her and fired a round into the wall behind her bed. The impact of the shot forced the first victim back on to the bed and caused her vision to blur and ears to ring.
1 Crimes Act 1961, s 232(1)(a).
2 Arms Act 1983, s 53(2).
3 Arms Act 1983, s 45(1).
[5] You then stood in the doorway, preventing her and her partner, the second victim, from leaving the room.
[6] You pointed the shotgun at the first victim and demanded that she undertake a Google search and demanded the second victim’s shoes.
[7] The second victim managed to escape via the bedroom window. When you realised this you became agitated and said something to the effect, “dammit, I only have one left”.
[8] You then pointed the shotgun at the first victim and demanded that she drive you to where you wanted to go. She refused. You said you would “blow her fucking head off” and then demanded the keys to her vehicle. She then threw the keys to you. You pointed the shotgun at her and told her to be quiet as you were on the phone. She ran from the address. You left the address with her vehicle.
Offending at hospital
[9] You then drove to Waitakere Hospital and parked in the ambulance bay area near the entrance to the emergency department. You walked up to a marked police patrol vehicle and fired three shots into it from different angles. At this time, the emergency room contained at least 17 members of the public, and there were at least seven staff members present. Many of them heard the loud shots of the shotgun and some saw you walking with the shotgun and shooting the police patrol car. Due to the direction and position of your shots at the police patrol car, they (and anyone else in the vicinity of the front of the hospital or car park) were within the line of fire of any stray shotgun rounds.
Victim impact statement
[10] The first victim described the offending as an horrific experience and the emotional impact of it has prevented her from residing at the flat. She recalled a period of two weeks during which she was unable to sleep as she kept having vivid flashbacks. She said the offending has impacted her life. She is constantly looking over her shoulder and feels paranoid whereas previously she had a relaxed disposition.
[11] Some nine months after the offending, she still has loud ringing noises in her ears. The damage caused to her car means she has incurred the expense of buying a replacement.
[12] The second victim emphasised he was scared and truly believed you were going to shoot someone.
Mental state
[13] Mr Schuster, at this point I will address your mental state and your account of the offending.
[14] For a number of months prior to the offending, you developed paranoid beliefs including that the Police, the Central Intelligence Agency and other Government agencies were following you. You believed that you had a number of biological implants which enabled drones to follow you and that your health, as a result, was failing. You also believed that other people (including members of your family) were involved in this plot.
[15] You say you obtained a rifle and ammunition for self-defence and to shoot down drones.
[16] It is not in dispute that you were delusional at the time of the offending. You had used methamphetamine over approximately six months prior to the offending and had used methamphetamine within 24 hours of the offending.
[17] As recorded in my decision of 4 November 2015, I consider the major cause of your psychosis was your heavy use of methamphetamine prior to the offending and on the day of the offending. For reasons detailed in that decision, I was not satisfied on the balance of probabilities that your use of methamphetamine had triggered an underlying mental illness.4 The decision is important for present purposes as it limits your entitlement to a discount for mental impairment, which I address later.
4 R v Schuster [2015] NZHC 2725.
Personal circumstances
[18] Turning to your personal circumstances, Mr Schuster, you are 28 years of age. You left school at age 16 and have trained as a butcher. When you are not in prison, you have achieved reasonable employment stability.5
[19] You have a lengthy history of criminal offending and some of it is violent offending.
[20] You maintained a long term relationship of over a five year period which ended in July 2014, some months before the offending. You said that, at the time of the offending, you were feeling both depressed and paranoid over the relationship breakdown.
[21] You have twice attended at CADS following court orders and completed 10 sessions of group based treatment, however only minor use of methamphetamine was noted at that time (though substantial use of alcohol and cannabis was also noted).
[22] You continue to have the support of your family, some of who are here to support you today.
[23] The probation officer considers you are at a medium likelihood of reoffending (although that could be reduced if you continue to take your medication). Given the violent nature of the present offending, as well as your violent offending in the past, you are assessed as posing a high risk of harm.
Submissions
[24] Ms Woolley, counsel for the Crown, submits a starting point in the range of seven years’ imprisonment is appropriate. She refers to a range of authorities and says that the aggravating factors of your offending are the level of premeditation;
threatened violence/use of weapon; unlawful entry into a dwelling house; and loss, damage or harm resulting from the offence.
[25] Ms Woolley submits that the starting point should be uplifted by 12 months for the associated offending given that the number of shots you fired caused extensive damage to the vehicle and put members of the public at serious risk of any stray shot gun rounds.
[26] That would leave a starting point of eight years’ imprisonment.
[27] Ms Woolley submits an uplift in the region of four months’ imprisonment should be adopted to account for your previous convictions.
[28] Ms Woolley says a discount in the range of 20 per cent is appropriate for your guilty pleas.
For Mr Schuster
[29] Your counsel, Ms Maxwell-Scott, says I should adopt a starting point of not more than 5 years’ imprisonment on the aggravated robbery charge. She submits there was no premeditation; she says you had obtained the shotgun from an associate two days before the offending for your protection in case you needed to shoot at drones which you believed had been following you. The shotgun was already at the flat on the day of the offending because you had left it there, two days prior, on the understanding that you would return to collect it if the drones were pestering you. In Ms Maxwell-Scott’s submission, you had no intention to commit any offending at the time you entered the property.
[30] Counsel accepts that the use of a weapon and the fact that you threatened the victims with the shotgun are aggravating features but emphasises this was not done for greed or money. It was inextricably linked to your genuine belief you were being followed by the government and other agencies.
[31] In Ms Maxwell-Scott’s submission, you lawfully entered the property as you had come in and out of the property with authority before and in the days leading up
to the offending. Although it is accepted that any authority to enter the property was naturally revoked when you presented the firearm at the victims, the offending should be viewed as less aggravating than circumstances where an offender enters an unknown address without authority and at random.
[32] Ms Maxwell-Scott points out that you discharged the firearm at a television, wall of the dwelling house and a police patrol car but no actual damage to persons were caused in any way. She submits an uplift of nine months for the charges arising from the hospital is appropriate.
[33] It is accepted that your previous convictions are relevant and an uplift of three months is submitted as appropriate.
[34] In Ms Maxwell-Scott’s submission, a discount of 15 per cent should be awarded for your mental impairment.6 Added to that is a discount for rehabilitative steps and remorse. Then, she says, you are entitled to a full discount of 25 per cent for your guilty plea.
[35] The end sentence, in Ms Maxwell-Scott’s submission, should therefore be no more than three years and six months’ imprisonment.
Approach to sentencing
[36] In sentencing you today, the Court must take into account the relevant purposes and principles of sentencing.7
[37] There is a three-stage approach to sentencing. First, I must determine what is called the starting point. There is no tariff decision for aggravated burglary, which is the lead offence, but you will hear me speak of a decision called R v Mako and some
6 Referring to R v Tarapata [2015] NZHC 1594 CRI-2014-055-001496.
other cases which will guide the way in which the starting point is set.8 Secondly, an adjustment to the starting is made to reflect aggravating and mitigating factors which are personal to you. Finally, there is a discount for a guilty plea.
Analysis
[38] I turn to determine the appropriate starting point. The decision of R v Mako sets a number of aggravating factors the Court must consider in relation to aggravated robbery but it is accepted such principles are appropriate to aggravated burglaries.
[39] The Crown says the degree of planning and preparation is an aggravating feature of the offending. However, unlike routine aggravated burglary cases, you did not enter the property with a plan of searching the property or demanding money, drugs or other property. The Crown accepts your plan was not particularly sophisticated but, in my assessment there was no real plan. When you entered the property, you were scared for your safety because of your paranoia and it seems you were unsure what you wanted from the victims. You said you went to your brother’s flat to confront him about the harassment and to make it stop. Of course, your beliefs are attributable to your mental state at the time, which I will address later.
[40] The type of weapon and its use increases your level of culpability. The shotgun was loaded and you began to discharge it as soon as you entered into the property. This created an environment of extreme violence before the victims were even confronted by you. You then discharged the shotgun directly above their heads.
[41] The fact that the shotgun was already present at the flat is not, in my assessment, mitigating since it was you who had put it there.
[42] You intimidated the victims a number of times by pointing a loaded shotgun at them (and I note that they had every reason to believe there was actual or potential danger since you, without saying a word, fired a round at the wall behind them as you entered the bedroom). You attempted to detain them. The first victim said she was detained for about an hour. They managed to escape separately. On top of the threats
8 R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).
you made (for example, to the first victim that you would “blow her fucking head off”), your violent behaviour did in fact cause actual damage to the property. This, in my assessment, increases your culpability.
[43] In saying that, I acknowledge that no one was physically hurt. However, there was psychological harm which, from the victim impact statements, appears to be long- lasting. I emphasise the degree of terror experienced by the first victim as described by her victim impact statement.
[44] Your counsel, Ms Maxwell-Scott, submits that the element of home invasion is not present here to the same extent as ordinary aggravated burglary cases. There is some force behind this submission.9
[45] I accept that you were not an intruder per se. You were known to the victims and, although it is not clear how you entered the property, it is apparent that you have entered the property with authority on a number of previous occasions, including the night before the offending. However, even if you entered the property with implied authority, you remained there without authority from the point at which you discharged the shotgun for the first time.10 Your offending occurred within the sanctity of the first victim’s home. Because of your actions, the victims were very frightened and needed to escape; one of the victims escaped through the window of the bedroom and the other ran from the flat.11
[46] The aggravating factors are use of a firearm, including a shot fired close to a victim’s head, the threat to kill, offending in a private home, and the duration of the offending, around an hour.
10 Crimes Act 1961, s 231(1)(b).
11 Saying she was “going to a friend’s” to try and downplay the sense of urgency or desperation in wanting to escape from the situation.
[47] I now turn to comparable cases. In my assessment, your offending is not as serious as the cases such as Currie v R to which the Crown refers.12
[48] The decision of R v Fenton is also significantly more serious as it involved actual physical injury, multiple victims of a family, multiple offenders and a raid of the property for the purposes of obtaining cash and cannabis.13
[49] However, in my assessment, your offending is more serious than R v Gibbons14 because you discharged the shotgun on two occasions and the victims were terrorised for a sustained period of time. Unlike that case, you were not invited in.
[50] Your counsel has referred me to the Court of Appeal decision of Tereora v R.15 In that case, there were multiple offenders, disguises, actual violence toward the occupant, demands for money, and property taken. The occupant was also threatened and forced to lie face down on the floor. However, in that case, the offenders were not in fact armed but tried to give the impression they were.
[51] In Reihana-Ruka, a total sentence of three years’ imprisonment was held to be sufficient for aggravated burglary, kidnapping and commission of a crime with a firearm. Ms Maxwell-Scott says the facts are more or less the same since there was one offender, no disguise or actual violence against the complainants or demands for money. However, I consider the circumstances of that case to be distinct. It involved a domestic context where the offenders’ anger was provoked by his wife hiding his
12 In Currie v R [2010] NZCA 449, the appellant and his partner were invited inside the victim’s home. After asking the victim about his will, the appellant left the house briefly and returned with a shotgun. He hit the victim several times in the face with the barrel and butt of the gun, and directed his partner to write on a piece of paper that the victim will give Mr Currie a vehicle. He then threatened that the victim and his family would be killed if the victim went to the Police. Mr Currie and his partner then left with the vehicle. The Court of Appeal upheld a starting point of eight years’ imprisonment for the aggravated robbery charge. The case is more serious than the present offending as it involved physical violence.
13 R v Fenton [2008] NZCA 379. The Court of Appeal upheld a starting point of 10 years’ imprisonment for the aggravated robbery charge.
14 R v Gibbons HC Auckland CRI-2009-090-9224, 27 July 2010. In that case, the offender went to the victim’s home with an associate; he was known to the victim. He pointed a rifle in the victim’s face and made it clear it was loaded. The offender then detained the victim and his flatmate while the property was searched. They left with some clothing and a cell phone. A starting point of four and a half years’ imprisonment was adopted.
15 Tereora v R [2015] NZCA 120. The Court of Appeal upheld a starting point of six and a half years’ imprisonment for the aggravated robbery count.
rifle and then his father in law removing her and the children from the home. The Court of Appeal was swayed by the very supportive stance taken by the victims.
[52] In R v Edwards, the Court of Appeal noted a range of cases in which sentences of seven to six years were imposed, and a starting point of six years was upheld.16
[53] Taking all those factors into account, I consider a starting point of six years’ imprisonment is appropriate for the charge of aggravated burglary.
[54] I uplift that by 12 months to reflect the totality of the offending. The offending at the hospital was serious particularly given the location, the number of people present at the premises, and the possibility of serious harm or even death occurring.
[55] Turning to personal aggravating factors, Mr Schuster, I uplift the starting point by three months for your previous offending, in particular, your convictions for use of a firearm and three aggravated robberies.
[56] I accept that you are entitled to a discount for your mental state at the time of the offending. Section 9(2)(e) of the Sentencing Act states that your diminished intellectual capacity or understanding at the time of the offending is a mitigating factor which the Court must take into account. This is subject to s 9(3) which provides that no discount can be attributed to the immediate effects of intoxication with drugs at the time of the offending.
[57] The difficulty, of course, is that you were intoxicated on methamphetamine at the time of the offending. No discount may be afforded for the fact that you were affected by the voluntary use of methamphetamine.
16 R v Edwards CA67/00, 18 April 2000. That case involved a single perpetrator who was known to the occupier; no items were taken and the weapon involved was a knife. The appellant was located sometime later wearing camouflage clothing and inside his backpack was a black beanie with eyeholes cut out. The facts can be considered less serious than Mr Schuster’s offending given the encounter was relatively short and there was no actual damage or harm caused, though the appellant was brandishing the knife at the occupant in a threatening manner.
[58] The balance between s 9(2)(e) and s 9(3), however, means that you are entitled to a discount to the extent that you have suffered from a psychosis secondary to drug consumption which developed over a period months.17
[59] While I accept you lacked insight and were acting on your delusional beliefs which resulted from heavy and persistent use methamphetamine for a period six months prior to the offending, it is clear that you represent a risk to yourself and society should you use methamphetamine again. On balance, and given your state of intoxication for which no discount may be afforded, I adopt a discount of 10 per cent for your mental illness.
[60] I am not satisfied there is any information before me to support a discount for remorse beyond that which is inherent in the discount for entering guilty pleas.
[61] The pre-sentence report notes that you have been an active participant in various counselling sessions and programmes while on remand. You were also willing to engage in restorative justice. I allow a small discount to reflect these matters.
[62] The offending occurred on 12 October 2014 and you pleaded guilty on 3 June 2015. Given the circumstances in which the guilty pleas were entered,18 being that you immediately pleaded guilty when found fit to stand trial after being medicated for a period, I consider a discount of 25 per cent is appropriate.
Conclusion
17 See E (CA689/2010) v R [2010] NZCA 13 at [68] and Lewis v R [2015] NZCA 444 at [24]. In E
(CA689/2010) v R, the Court of Appeal explained why a mental disorder, falling short of exculpating insanity, may be capable of mitigating a sentence. If causative of the offending, it moderates the offender’s culpability. This flows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend. However, mental illness or mental impairment may affect the risk of repetition of offending which, in turn, may direct attention to issues of personal deterrence or public protection. This may indicate a sentencing point nearer to the higher than the lower end of an otherwise available range. This will depend upon the nature and severity of the symptoms of the condition, whether at the time of the offending or at the date of sentence or both, the Court said.
18 The Supreme Court in Hessell v R [ 2010] NZSC 135, [2011] 1 NZLR 607 at [60] said that “[a]ll circumstances in which the plea was entered must be addressed, not merely the timing”. The Court said the important factor is assessing the extent to which entering a guilty plea involves the acceptance of responsibility.
[63] That brings me to an end sentence of four years and eight months’ imprisonment.19 I am satisfied that is an appropriate sentence on a totality basis.
[64] Mr Schuster you are sentenced to four years and eight months’ imprisonment for aggravated burglary. On the charges of careless use of a firearm and possession of explosives, you are sentenced to two years’ concurrent. You have already received the first strike warning on your conviction for aggravated burglary.
Thomas J
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