Schuster v R [2011] NZCA 343 (26 July 2011)

Last Updated: 2 August 2011

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.

2. The 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

[1] 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).
[2] 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

[3] 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.
[4] 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

[5] 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).

[6] The judge said the offending was at the lower range of band three. He settled on a starting point of two years with an uplift of nine months for the burglary charge. Judge Thorburn said there was no real difference in the levels of culpability of the two offenders. Both were equally responsible for what happened. While impressed with Mr Schuster’s qualities and potential as disclosed in the pre-sentence report, the judge said he was unable to reduce the sentence because of previous serious offending, including a conviction for aggravated robbery, and the fact that his offending had occurred while subject to release conditions.

Grounds of appeal

[7] The primary ground of appeal advanced by Mr Dooney is that no allowance was made for the eight months which Mr Schuster spent on EM bail. We were told he was subject to stringent conditions and only left his place of residence on approximately nine occasions for court appearances and medical appointments.
[8] As a secondary ground of appeal, Mr Dooney questioned whether the starting point was justified, having regard to evidence indicating that Mr Schuster had a secondary role in the offending.

Discussion

[9] We have no concerns about the starting point. It was appropriately fixed by reference to the bands in Harris. It is in keeping with decisions of this Court in broadly similar facts referred to us by Mr Tantrum.[4] While the judge acknowledged that Mr Schuster’s co-offender struck most of the blows, Mr Schuster was close by, offering support and encouragement. The judge was entitled to treat the offenders as equally culpable.
[10] It is well established that some allowance may appropriately be given for time spent subject to a restrictive bail regime.[5] In assessing the credit to be given an evaluative assessment of all the circumstances is required.[6]
[11] In written submissions to Judge Thorburn, counsel for Mr Schuster (not Mr Dooney) submitted that allowance should be made for the time spent by Mr Schuster on EM bail. This submission appears to have been overlooked by the judge, possibly as a result of time pressures which he refers to in his sentencing remarks.
[12] We are satisfied that some allowance should be made and would have been made had the judge turned his mind to the issue. While time spent on restrictive bail conditions is not a mandatory mitigating factor, in the absence of countervailing considerations, some discount should normally be provided for a substantial time spent on EM bail. In this case we consider a reduction of three months is warranted in all the circumstances.

Result

[13] Leave to appeal is granted and the appeal is allowed. The sentence of two years nine months’ imprisonment is quashed. In its place we impose a sentence of two years and six months’ imprisonment.

Solicitors:
Crown Law Office, Auckland for Respondent

---

[1] R v Harris [2008] NZCA 528.
[2] At [10].
[3] R v Taueki [2005] 3 NZLR 372 (CA) at [27].
[4] R v Neho [2010] NZCA 8, R v Tolley [2009] NZCA 573 and R v Scott [2007] NZCA 589.
[5] R v Faisandier CA185/00, 12 October 2000.
[6] R v Tamou [2008] NZCA 88 at [18] and [19]; Keown v R [2010] NZCA 492.