Schaumkel v R [2012] NZCA 569 (5 December 2012)

Last Updated: 13 December 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA361/2012 [2012] NZCA 569

BETWEEN STRANZ JEREMY SCHAUMKEL Appellant

AND THE QUEEN Respondent

Hearing: 14 November 2012

Court: Randerson, MacKenzie and Courtney JJ

Counsel: L M Sziranyi for Appellant D R La Hood for Respondent

Judgment: 5 December 2012 at 3:00pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by MacKenzie J)

[1] On 12 March 2012, the appellant was convicted following trial in the District Court in Wellington on one count of participation in an organised criminal group, one count of being a party to the theft of a motor vehicle, and two counts of conspiracy to steal a motor vehicle. He also pleaded guilty immediately before trial to one count of burglary. On 18 May 2012, Judge Barry sentenced the appellant to two years and three months imprisonment. He appeals against that sentence.
[2] The notice of appeal was filed on 20 June 2012, a few days late. The Crown does not take issue with the delay. We grant an extension of time for appealing.
[3] The appellant advances three grounds of appeal:

• (a) that the Judge took an incorrect approach to sentencing by refusing to consider the burglary as unrelated to the wider criminal enterprise;
• (b) that the Judge failed to apply the principle of parity in sentencing, which resulted in a manifestly excessive sentence for the appellant both because of the error the Judge made in respect of the burglary and because, even if that burglary were included in the wider criminal enterprise, in terms of parity with co-offenders the starting point for the appellant was too high; and
• (c) that the Judge failed to have regard to the totality principle and this has resulted in a manifestly excessive sentence.

[4] The Crown case was that the criminal group of which the appellant was a part, committed burglaries and thefts throughout the Wellington region between January and November 2010, the majority of offences being committed between September and November. The offences fell broadly into two categories. The first category was the theft of vehicles. Members of the group were variously involved in identifying suitable vehicles, stealing them, and participating in their disposal by changing the identity of the vehicles or having them stripped down and sold as parts. The theft and conspiracy counts which the appellant faced related to this category of offending. The second category was the burglary of 24 homes during the daytime while residents were not at home. Members of the group participated in different ways in the preparations for the burglaries, the burglaries themselves, and the disposal of the stolen property. The appellant faced no specific charges in relation to this burglary offending.
[5] His burglary charge involved him and four associates, and was not alleged to be part of the activities of the criminal group. The offenders entered a residential property during the day and stole a DVD player and other items. While they were still at the address, an occupant arrived home. She parked her vehicle so as to block their exit. The appellant and his associates attempted to drive away by ramming her car. They were unsuccessful and confronted her. She refused to hand over her car keys and yelled for help, at which point the appellant and the associates fled on foot. When spoken to by police, the appellant admitted his involvement but refused to identify his co offenders.
[6] In support of the first ground of appeal, Ms Sziranyi submits that the Crown case at trial was not that the appellant was a member of the burglary scheme, rather that he was principally involved in the motor vehicle theft scheme. That submission was also made to the sentencing judge. Judge Barry rejected that submission. He summarised defence counsel’s submission on the point in this way:[1]

Ms Sziranyi submits that you should not be sentenced on the basis that you were involved in both the burglary and motor vehicle offending in this organised criminal group but that your part was limited to motor vehicle offending. She submits that the burglary in Pharazyn Street was not planned and executed by the same group that was involved in the organised criminal group. Quite what the basis of that submission is, I am not sure because you did not give evidence and there was nothing adduced at the trial by way of admission or assertion to that effect. But the point Ms Sziranyi makes is that the Pharazyn Street burglary does not bear the hallmarks of the other group burglaries with the scoping and targeting of properties in the western suburbs of the city. Also that the offender who gave Crown evidence, Mr Hill, never mentioned your name in the context of any other burglaries. She submits that your sentencing on the organised criminal group charge should fall to be considered in terms of the motor vehicle dishonesty aspect to it only.

[7] The Judge described the appellant’s role in the criminal group offending in these terms:[2]

Turning then to the sentence itself. On the organised criminal group, in my view, the jury’s verdict implicitly has you involved in both the burglary arm of this criminal undertaking as well as the motor vehicle offending. Supporting that view, one can see that the burglary was committed within the time span of the organised criminal group count which is said to be between September and November 2010. There were no assertions or evidence at the trial to the contrary. In fact, in the video taped interview that you gave, amongst other things, you said you knew Mr Powell, Mr Barrett, Mr Ratu, Mr Dornan; you accepted you had a role as a middleman, getting rid of stolen property; you accepted there was text traffic with Matthew Powell and Ella Ratu about stolen property generally; and you said that you were being offered stolen property and you knew they did burglaries. You said you were helping the boys selling their stuff. In my view, the jury properly saw you as part and parcel, not necessarily directly but integrally of both the burglary and the motor vehicle offending.

[8] Judge Barry, as trial Judge, was in the best position to form a view as to the appellant’s role in the criminal group offending. The fact that the appellant did not face any charges directly related to the burglaries committed by the criminal group did not preclude a finding that he participated as a member of the group in those burglaries. The Judge held that he had a role as a middle man getting rid of stolen property. That was a view which the Judge, having heard the evidence at trial, was entitled to reach.
[9] In any event, it is not clear that acceptance of the submission that the appellant’s role in the organised criminal group was limited to the motor vehicle offending would have made a difference to the sentence. If the Judge had taken that view, it would have been necessary to fix a starting point for the organised criminal group and motor vehicle offending. The separate burglary would then have to have been taken into account by an uplift to that starting point to reflect the totality of the offending or by a cumulative sentence. The Judge discussed all of the offending, and then fixed a single starting point of two years six months imprisonment. The essential question is whether that starting point was appropriate to reflect the totality of the offending.
[10] Ms Sziranyi submits that a proper starting point would have been one and a half years imprisonment for the criminal group and motor vehicle offending, with an uplift of six months for the separate burglary.
[11] A starting point of one and a half years would have been inadequate, even if the Judge had accepted the submission (which he did not) that the appellant’s role in the criminal group was confined to the motor vehicle offending. A starting point of six months for the separate burglary would also have been inadequate, given the circumstances as we have described them. When regard is had to the totality of the offending, the starting point of two years and six months was not excessive.
[12] Accordingly, on the first ground of appeal, we find that the Judge’s approach was not in error, and it has not led to a starting point which was manifestly excessive.
[13] The second ground of appeal involves a consideration of parity with the sentences imposed on other participants in the organised criminal group. A direct comparison is not possible, because other members of the group faced different charges. The Judge had regard to the starting points. He noted that those ranged between three years and three years nine months imprisonment. The Judge saw the appellant as a lesser figure. In those circumstances, the overall starting point of two years and six months which he adopted for the totality of the offending is not excessive relative to the other sentences imposed.
[14] The third ground of appeal is that the totality of the sentence imposed by Judge Barry and the sentence which the appellant was already serving for earlier offending is excessive. The appellant had been sentenced in November 2011 after being found guilty at trial on one count of wounding with intent to cause grievous bodily harm. That offending was committed in October 2010, that is, within the period of the organised criminal group offending. He was sentenced by Judge Hobbs to four years and two months imprisonment.
[15] Judge Barry took this sentence into account. He uplifted his starting point of two years and six months by one month to reflect the appellant’s previous history. He then took into account the sentence earlier imposed, and said that, had all matters been before the same sentencing Judge at the same time, “he or she would have leavened the entire sentencing process by ensuring the application of the totality principle”.[3] He discounted the starting point by around 12 per cent, which he rounded to four months. That gave an end sentence of two years and three months, cumulative on the sentence earlier imposed, giving a total sentence of six years and five months imprisonment.
[16] Ms Sziranyi submits that the discount to reflect the totality of the sentence was inadequate, and that a discount of 25 per cent of the sentence imposed by Judge Barry should have been allowed. The figures presented in her oral submissions would have led to a total end sentence of around five years nine months.
[17] The application of the totality principle, particularly in a situation such as this where sentences are imposed at different times, does not lend itself to the application of a formulaic approach by calculating a percentage discount. The objective of the application of the totality principle in such a case is to ensure that the total sentence imposed properly reflects the totality of the offending for which all of the sentences have been imposed, and does not have the effect of imposing upon the offender a crushing sentence. We have reviewed Judge Hobbs’ sentencing notes, and the circumstances of that offending. We consider that, reviewing both sentences, the discount of four months allowed by Judge Barry was within the available range. The sentence imposed by him was not itself manifestly excessive, and has not led to a total sentence to be served by the appellant which is manifestly excessive.
[18] The appeal against sentence is dismissed.

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Appellant
Crown Solicitor, Wellington for Respondent

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[1] R v Schaumkel DC Wellington CRI-2011-032-525, 18 May 2012 at [11].
[2] At [13].
[3] At [21].