R v Schmalz [2007] NSWDC 226

New South Wales District Court

CITATION: R v Schmalz [2007] NSWDC 226

HEARING DATE(S): 28/08/07 20/09/07

JUDGMENT DATE: 20 September 2007

JURISDICTION: Criminal

JUDGMENT OF: Conlon SC DCJ

DECISION: Convicted. Sentenced to a non-parole period of 4 years and 6 months with an additional period of 2 years and 6 months. Find special circumstances.

CATCHWORDS: Maliciously inflict GBH with intent - Victim Impact Statement - Standard Non-Parole Period - Plea of guilty - Statements by accused to psychologist

LEGISLATION CITED: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)

R v Berg [2004] NSWCCA 330 R v Way (2004) 60 NSWLR 168 CASES CITED: R v Ohar [2004] NSWCCA 83 R v Pellew [2004] NSWCCA 434 R v Qatami [2001] NSWCCA 353

PARTIES: Crown Nathan Schmalz (Accused)

FILE NUMBER(S): 07/41/0054

COUNSEL: Ms J Healey (Accused)

SOLICITORS: Mr A Kernaghan (Crown)

JUDGMENT

1 HIS HONOUR: The offender, Nathan John Schmalz, appears for sentence following his plea of guilty to one count of maliciously inflicting grievous bodily harm upon Cindy Pinney with intent thereby to do grievous bodily harm. The offence is contrary to s 33 of the Crimes Act and carries a maximum penalty of twenty-five years imprisonment. The facts are as follows: The offender and victim, Cindy Pinney, had been friends since February 2006. In the middle of November 2006 the offender moved into the premises of Mr Brett McAndrew-Jenkins at 23 Wegit Way, Warrawong. At the beginning of December Cindy Pinney also moved into those same premises and commenced a de facto relationship with the offender. On Saturday 16 December 2006 the offender and Ms Pinney attended the Illawarra Yacht Club and consumed alcohol. The offender also consumed a pill being methylamphetamine. Ms Pinney left the club at about 4pm as she had to pick up her young nieces. She returned to the club where she spoke briefly with the offender and then with her nieces went to the Wegit Way premises. Shortly after, the offender returned home they had a heated argument. The offender commenced hitting Ms Pinney with his hands to her face and top part of her body. He then grabbed her hair and shoved her face into a foot spa filled with water. He was shouting at her and punched her around the head. As Ms Pinney yelled out for help the offender placed his hands around her neck. In attempting to remove his hands from her neck she bent a fingernail. She had trouble breathing and thought she was going to lose consciousness. He continued to hit her causing a gash to her left wrist which later required sutures, a weapon was then being used. However, the nature of that weapon could not be identified. The offender then put Ms Pinney in the shower and turned it on. She recalled him trying to strangle her while she was in the shower. She was left dressed only in her underwear and lost consciousness. When she regained consciousness she noted blood in the shower and she could hear the offender arguing with flatmate Brett McAndrew-Jenkins. Mr McAndrew-Jenkins had been at his home along with his girlfriend, Jenna O'Cass, when Ms Pinney and her nieces returned from the club. Shortly after the offender returned, Mr McAndrew-Jenkins and Ms O'Cass left to go to the Dapto Leagues Club. Whilst on their way they received a phone call from a neighbour indicating they should return home immediately. He drove back, got straight out of his car, ran into the house, he could hear the shower running. He went upstairs and noticed blood on the offender's bedroom door and on the balcony railing. As he arrived at the top of the stairs he noticed the offender standing at the doorway to the bathroom swearing at Ms Pinney. Mr McAndrew-Jenkins pushed him out of the way. He saw Ms Pinney on the floor of the shower and there was blood everywhere. He noticed she was dressed only in bra and undies. She was calling out, "Help, help, stop, stop". The offender was saying, "Shut up", and, "I want you out". He also said something like, "You don't know what has happened she sold herself at Port on Tuesday". Mr McAndrew-Jenkins has stated that he took his shirt off ready to fight the offender and they began pushing and shoving one another. It was at this time he saw Ms Pinney leave the bathroom and go into the bedroom. Mr McAndrew-Jenkins told the offender he wanted them out of his home. The offender said something about, "Putting Cindy in the Lake", so Mr McAndrew-Jenkins remained to ensure her safety. The offender began throwing her belongings out the bedroom window. Her arm was bleeding everywhere, she was crying and asking for an ambulance. According to Mr McAndrew-Jenkins the offender said, "You are not going anywhere I'm going to put you in the Lake". They ended up outside and Ms Pinney sat in the passenger seat in a car of Ms O'Cass. She said Ms Pinney was crying and saying things like, "I'm not a prostitute I didn't do it, leave me alone, I just want to get my stuff, I'm going, I'll get a taxi". Ms O'Cass attempted to help her pack her belongings. Ms O'Cass noticed the offender out the front of their home saying words to the effect, "Cindy sold herself on Wentworth Street, she's a prostitute, not even for money, just drugs and alcohol". Ms O'Cass then noticed that Ms Pinney was no longer in her car. She eventually located her up the road in a neighbour's house. She said she was, "Hunched over and kept saying she couldn't breathe". A short time later the police arrived. When Ms Pinney lifted her top Ms O'Cass noticed a cut on her ribs, she said she felt sick and walked away. An ambulance then arrived and took Ms Pinney to hospital. Ms O'Cass returned to the house, she observed blood, "Still everywhere upstairs". She also saw Ms Pinney's wet clothes still at the bottom of shower. The shower curtain had been ripped off and was on the floor. Mr McAndrew-Jenkins stated that the shower screen had been broken, there was a large crack in the bathroom door. He did not know where the offender had gone. The victim spent some days in hospital following this attack and she suffered a pneumothorax (a collapsed lung), a fractured rib, fluid around the lung, puncture wounds to the armpit and left lower back, a laceration to the side of the wrist. The treatment included insertion of an intercostal catheter to drain air and fluid from around the lungs. She also suffered from two black and swollen eyes, bruising to her body, two lacerations to the top of her head requiring six sutures in total, a broken toe and a bent and painfully broken nail on her hand.