Appeal against sentence – assault – starting point – discounts – purposes of sentencing – rehabilitation and reintegration – home detention 

Schell v New Zealand Police & Chief Executive of the Department of Corrections [2023] NZHC 636 (Harland J)

Kyle Schell was sentenced to 21 months’ imprisonment on one charge of assault with intent to injure and one charge of the application of pressure to the throat and neck. A final protection order was also made in favour of the victim.

Schell appealed against this sentence on the ground that it was manifestly excessive. He said the adopted starting point was too high, a greater discount for mitigating factors should have been adopted and the sentencing judge erred in his decision to not commute the sentence to home detention.

Following a verbal argument between Schell and his partner, Schell grabbed her around her throat and threw her onto a couch. He applied pressure to her throat, causing her to struggle for air. He then slightly released his grip, allowing her to breathe, before applying pressure once again.

She struggled in an attempt to escape. Schell then grabbed her clothes near her neck and picked her up off the couch before immediately throwing her back down, causing her to land on the couch and floor. He then punched her about six times in the head and face area while she lay on the floor. When she raised her hands towards her face for protection, Schell threw another punch, hitting her left wrist. Using his forearm, he applied pressure to her collar bone while she lay on her back, preventing her from getting off the floor. After a struggle, she broke free and called her mother for help.

The victim impact statement and significant family harm report disclosed a history of physical and mental violence. Further, Schell had two previous convictions for violence and a history of non-compliance.

At sentence indication, the sentencing judge placed Schell’s offending at a lower level than that identified in Shramka v R [2022] NZCA 299. With the inclusion of the ancillary assault, and accounting for Schell’s previous convictions, the judge indicated a starting point in excess of two years’ imprisonment would be appropriate.

At sentencing, the judge adopted a starting point of 28 months’ imprisonment, a discount of 15% for an early guilty plea, and a discount of 10% for issues in Schell’s past, his work with a mental health clinician in prison, and his expression of remorse, leading to an end-sentence of 21 months’ imprisonment.

The judge regarded Schell’s assault as serious and considered specific and general deterrence and denunciation as being the most relevant sentencing purposes.

In respect of whether a non-custodial sentence was appropriate, the judge identified the fundamental issue as being whether a sentence of home detention would meet the principles of deterrence and denunciation, but also rehabilitation.

The judge noted that if in prison, Schell could undertake a medium-intensity rehabilitation program (MIRP); however, it was not available to him in the community. Further, the judge said the MIRP was the best departmental program for a man who continues to offend in a violent way and is unable to complete sentences in the community.

In declining to exercise his discretion to commute the sentence to home detention, the judge observed this sentence would be insufficient to meet the wider issues of denunciation and deterrence.

The High Court found that the starting point of 28 months’ imprisonment, while stern, was not excessive and the discount of 10% for mitigating factors was within range.

In respect of whether imprisonment or a sentence of home detention was more appropriate, the High Court noted the difficulty with the sentencing judge’s approach, that there was no guarantee that the MIRP would in fact be made available to Schell while he was in custody and it had transpired that Schell was deemed unsuitable for the program.

The High Court observed that had the sentencing judge’s findings in respect of the MIRP been the only reason, it would have allowed the appeal. However, the judge articulated that the purposes of general and specific deterrence and denunciation would not be met if a term of imprisonment was not imposed.

The High Court further noted that both sentencing options allow for an offender’s rehabilitation and reintegration, particularly when post-detention conditions are imposed.

The High Court found it reasonable to conclude that the principles of sentencing favoured Schell serving a term of imprisonment rather than home detention and imposing post-detention conditions would best meet the principle of rehabilitation and reintegration.

Held: Appeal against sentence allowed in part. Post-detention special conditions for a period of six months as recommended in the pre-sentence report imposed. Appeal dismissed in all other respects.

Schell v New Zealand Police & Chief Executive of the Department of Corrections [2023] NZHC 636

Hannah Hellyer is an Auckland criminal defence barrister and member of the ADLS Criminal Law Committee and Parole Law Committee