SCHMELZ v NEW ZEALAND POLICE [2021] NZCA 17

SCHMELZ v NEW ZEALAND POLICE [2021] NZCA 17 [19 February 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA511/2020[2021] NZCA 17BETWEEN OWEN STANLEY SCHMELZApplicantAND NEW ZEALAND POLICERespondentCourt: Goddard, Lang and Hinton JJCounsel: R A Harrison for ApplicantJ M Irwin for RespondentJudgment:(On the papers)19 February 2021 at 3.00 pmJUDGMENT OF THE COURTThe application for leave for a second appeal against sentence is declined.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)[1] The applicant, Mr Schmelz, pleaded guilty to one charge of sexual violation byunlawful sexual connection,1 four charges of indecent assault on a young person,2 andone charge of common assault.3 Following a sentence indication, he was sentenced inthe District Court at Blenheim by Judge Zohrab on 25 May 2020 to a term of1 Crimes Act 1961, ss 128(1)(b) and 128B.2 Section 135.3 Section 196.two years' imprisonment.4 The Judge was not prepared to sentence Mr Schmelz tohome detention. He considered that imprisonment was the only appropriate responseon the facts of the case.5[2] Mr Schmelz appealed to the High Court on the ground that the sentence wasmanifestly excessive. On 5 August 2020 his appeal was dismissed.6 Dobson Jconsidered that the end sentence was well within range, and the presumption thatimprisonment is the appropriate sentence for sexual violation was not displaced.7[3] Mr Schmelz seeks leave to bring a second appeal against his sentence to thisCourt under s 253(1) of the Criminal Procedure Act 2011. Section 253(3) providesthat this Court must not grant leave unless it is satisfied the appeal involves a matterof public importance, or a miscarriage of justice may have occurred or may occurunless the appeal is heard. The threshold is a high one.8[4] The application for leave to appeal was filed seven working days out of time.The delay was short and did not cause any prejudice to the Crown. An extension oftime was granted by this Court on 22 October 2020.9[5] Mr Harrison, counsel for Mr Schmelz, submits that the proposed appealinvolves a matter of public importance and, further, a miscarriage of justice may haveoccurred.[6] The matter of public importance identified by Mr Harrison is that in this casethe sexual violation by unlawful connection is "a fleeting kiss on the end of the[complainant's] penis". He submits that in those circumstances, involving minimalphysical connection, a starting point significantly below band one, as described by thisCourt in R v AM (two to five years' imprisonment) would have been appropriate.104 R v Schmelz [2020] NZDC 9350.5 At [40].6 Schmelz v R [2020] NZHC 1943 [High Court judgment].7 At [22]–[23] and [27]; and Crimes Act, s 128B(2).8 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.9 Schmelz v Police CA511/2020, 22 October 2020 at [2].10 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [113].[7] This Court has previously recognised in Crump v R that the way in which theR v AM guideline judgment is structured means there is actually a band beneath bandone, which applies in cases of the lowest culpability.11 Indeed this Court madeobservations to similar effect in R v AM itself.12[8] Thus the principle that a starting point below the R v AM band one may beappropriate in sexual violation cases of the lowest culpability is already established bythat decision and by Crump. The High Court Judge was referred to Crump, andproceeded on the basis that in some cases a starting point below the R v AM band onewill be appropriate. But he did not consider that this was a case that should be rankedbelow the bottom of band one in R v AM.13 The argument that Mr Schmelz advancedin the High Court, and wishes to present on appeal to this Court, does not raise anynew question of principle. Rather, the issue is whether, applying the establishedprinciples that were identified and applied in the courts below, the sentence imposedwas appropriate. The proposed appeal does not involve any matter of publicimportance.[9] Nor do we consider that a miscarriage of justice may have occurred. In boththe District Court and the High Court the minimal nature of the physical connectionwas recognised. However both the District Court Judge and the High Court Judgeconsidered that a number of aggravating factors were present in this case.The offending involved a very serious level of breach of the trust reposed inMr Schmelz by the complainant and the complainant's family. The abuse of trust wasexacerbated by the large difference in age between Mr Schmelz and the complainant,and the context in which the contact between them occurred. The case involveda significant amount of planning and premeditation, and grooming of the complainant.The complainant was particularly vulnerable.14[10] The Courts below weighed all the relevant circumstances and concluded thata sentence of two years' imprisonment was appropriate. Both Judges considered thatthe presumption of imprisonment in s 128B(2) of the Crimes Act 1961 was not11 Crump v R [2020] NZCA 287, (2020) 29 CRNZ 402 at [98].12 R v AM (CA27/2009), above n 10, at [83].13 High Court Judgment, above n 6, at [14], [21].14 High Court judgment, above n 6, at [18]–[21].displaced. The arguments that Mr Harrison wishes to make on behalf of Mr Schmelzon appeal to this Court in relation to the length of sentence, and the decision not toimpose a sentence of home detention, are the same arguments that were carefullyaddressed in the High Court. There is no appearance of a miscarriage of justice.[11] The application for leave for a second appeal against sentence must thereforebe declined.Solicitors:Crown Law Office, Wellington for Respondent