R v Schaefer & Schiworski

Case [2006] SASC 348

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SCHAEFER & SCHIWORSKI

[2006] SASC 348

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice White)

21 November 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appellants convicted of two counts of taking part in the manufacture of a drug of dependence – appellants and two others took part in the manufacture of methylamphetamine on two occasions – disputed facts hearing as to commercial purpose – trial judge found that manufacture on both occasions was for a commercial purpose and sentenced on that basis – whether finding of commerciality was open on the facts – whether judge erred in failing to suspend sentence of appellant Schiworski.

Held: finding of commerciality open on facts as found – sentences not manifestly excessive – no error in failing to suspend the sentence of the appellant Schiworski – appeals dismissed.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Anderson v The Queen (1993) 177 CLR 520; R v Adamai (1999) 51 SASR 229; R v Carpentieri (2001) 81 SASR 164, applied.
R v Schwabegger [1998] 4 VR 649, discussed.
R v Todd [1982] 2 NSWLR 517; R v P (2003) 87 SASR 287; Duncan v The Queen (1987) 9 A Crim R 354; Kernich v DPP (Cth) (1997) 68 SASR 454; R v Whyte (2004) 7 VR 397; R v Suckling (1983) 33 SASR 133; R v Hathaway [2005] NSWCCA 368; R v Mangelsdorf (1995) 66 SASR 60; R v Wirth (1976) 14 SASR 291; Bates v Police (1997) 70 SASR 66; R v Ivic [2006] SASC 8, considered.

R v SCHAEFER & SCHIWORSKI
[2006] SASC 348

Court of Criminal Appeal:  Doyle CJ, Anderson and White JJ

  1. DOYLE CJ:          I would dismiss the appeals.  I agree with the reasons given by White J.

  2. ANDERSON J      I would also dismiss the appeals.  I agree with the reasons given by White J.

  3. WHITE J: Each of the appellants was convicted by a judge, sitting without a jury, on two counts of taking part in the manufacture of a drug of dependence.  The prosecution case was that on 4 July 2001 and 2 August 2001 the appellants had taken part, with two others, in the manufacture of methylamphetamine.  After a disputed facts hearing, the judge found that on each occasion the manufacture of the methylamphetamine had been for a commercial purpose and he sentenced the appellants on that basis.

  4. Using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), the judge sentenced each of the appellants to imprisonment for three years and fixed a non-parole period of 12 months. He declined to suspend those sentences.

  5. The appellants submit that their respective sentences are excessive because it was not open to…

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R v Schaefer & Schiworski [2006] SASC 348
Case
[2006] SASC 348
Decision Date

CaseChat Overview and Summary

The appellants, Schaefer and Schiworski, appealed against their sentences following their convictions for two counts of taking part in the manufacture of a drug of dependence, specifically methylamphetamine. The trial judge had found that the manufacture was for a commercial purpose and sentenced accordingly. The appellants argued that the finding of commerciality was not open on the facts, and that the sentence for Schiworski should have been suspended. The court needed to determine whether the finding of commerciality was justified based on the evidence, and if the sentencing judge had erred in not suspending Schiworski’s sentence.

The court found that the finding of commerciality was supported by the facts. The appellants had collaborated with an experienced manufacturer and had made repeated efforts to source the necessary materials, including discussions about dividing the profits. The judge had accepted the evidence of the experienced manufacturer, who had been acting as a police informant, and the appellants had not successfully challenged this evidence. The court also held that the sentencing judge had not erred in not suspending Schiworski’s sentence. Despite the mitigating circumstances, the nature and seriousness of the offending warranted a custodial sentence. The financial difficulties of Schiworski’s family and the impact on his children, although real, were not sufficient to warrant suspension in the circumstances of this case.

In conclusion, the appeals were dismissed. The finding of commerciality was upheld, and the sentences were deemed appropriate given the nature of the offending. The sentencing judge’s decision not to suspend Schiworski’s sentence was also upheld. The court found no basis to interfere with the sentencing discretion exercised by the trial judge.

Orders

Orders of the court

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Background

Background to the litigation

The appellants submit that their respective sentences are excessive because it was not open to the judge to find that the manufacture of the methylamphetamine had been for a commercial purpose. The first appellant, Mr Schiworski, contends, in addition, that the judge erred in failing to suspend his sentence. Although Mr Schiworski was also granted leave to appeal on the ground that his sentence, even in the event that the finding of commerciality was upheld, was excessive, that ground of appeal was not pursued at the hearing.Background to the Offences In mid 2001, Mr Schiworski wished to manufacture methylamphetamine using the hypophosphorous method. Although he had a substantial amount of the necessary equipment and access to the several of the necessary ingredients, he did not have hypophosphorous acid, nor experience in the manufacture of methylamphetamine. He was put in contact with a person described by the judge as “P”. P agreed to assist Mr Schiworski. P was well experienced in the manufacture and distribution of methylamphetamine. Unbeknown to the two appellants he was also, in mid 2001, a police informant. P assisted the two appellants and a third man, Mr Brown, on 4 July 2001 and 2 August 2001 to manufacture methylamphetamine at the property of the second appellant, Mr Schaefer. P provided his assistance in his capacity as a police informant and as part of a police undercover operation. Although a substantial attack was made upon the credibility and reliability of P’s evidence, the judge accepted his evidence generally and, in particular, for the purposes of his findings following the disputed facts hearing. The judge found that in the period between 30 May 2001 and 2 July 2001, Mr Schiworski met P on seven separate occasions in connection with arrangements for the manufacture of methylamphetamine. At the first meeting, Mr Schiworski expressed interest in manufacturing amphetamines with P and another person named Barrett. Mr Schiworski told P that he could obtain all that was required for the manufacture, other than the hypophosphorous acid. A second meeting occurred six days later at which both Mr Schiworski and Mr Schaefer were present. Mr Schaefer was introduced to P as a “business associate”. At this meeting, Mr Schiworski reiterated, in the presence of Mr Schaefer, that he could obtain all of the equipment and chemicals required except the hypophosphorous acid which P would have to procure. There was some discussion of a suitable location for a laboratory. This was the only meeting of P and Mr Schiworski (prior to 4 July 2001) which was also attended by Mr Schaefer. Although P gave evidence that at this meeting Mr Schiworski discussed “dividing up the proceeds, the profits from the cooking” and suggested “a 4-way split” it is unclear whether the judge relied upon that evidence for his finding of commerciality. In any event, Ms Mealor, who appeared for the respondent, did not seek to uphold the finding of commerciality by reference to that evidence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J (dissent)
A decision to suspend or to refrain from suspending a sentence involves an exercise of discretion by the sentencing court. The circumstances in which an appellate court interferes with the exercise of discretion by a sentencing judge are limited. In my opinion, no error by the sentencing judge has been demonstrated. Nor do I consider that the various matters emphasised by Mr Lister, when considered in combination, indicate that the exercise of the discretion in this case miscarried. Despite the personal circumstances of Mr Schiworski which were mitigatory, the judge was entitled to regard the circumstances of his offending as being so serious as to make suspension inappropriate.Conclusion For these reasons, I would dismiss the appeals of each of the appellants

Ratio Decidendi

Legal Principle Established

Established by:

In the present case, Mr Lister emphasised the financial difficulties which Mr Schiworski’s wife would experience in single-handedly supporting their young family and meeting the mortgage payments on their house. In addition, Mr Lister emphasised the detriment to Mr Schiworski’s sons which the absence of his care and supervision at critical times in their lives would cause. All of these detriments are very real and one cannot help but have sympathy for the position of Mr Schiworski’s wife and sons. However, the judge was correct, in my opinion, in not regarding these detriments as being so much greater than might ordinarily be expected as to warrant suspension in this case.The Police Undercover Operation Mr Lister submitted that account should have been taken of the fact that these offences were committed in the course of an unlawful police undercover operation. The same submission was made to the sentencing judge. In relation to that submission the judge said:As a matter of established sentencing principle, a sentence is not to be discounted merely because it was committed in the course of a police undercover operation. An offender is only entitled to a discount if it appears, as a reasonable possibility, that he would not have committed the offence had he not been talked into it by the police or their undercover operatives. As I said, when I delivered my ruling on the voir dire, I found that this is not a case where P or the police beguiled or seduced you to commit the crimes. You were merely provided with the opportunity to commit crimes which you were willing to commit. The judge was correct both as a matter of principle and as a matter of fact. As already noted, it was Mr Schiworski who wished to manufacture methylamphetamine and who sought P’s assistance to that end. This was not a case of Mr Schiworski being induced to commit an offence which would not otherwise have occurred.Parity with P P was prosecuted for two offences of taking part in the manufacture of methylamphetamine. Both those offences were committed in early 2001 prior to him becoming a police informant. P apparently also has a history of prior offending. For those two offences, P was sentenced to imprisonment for six years and a non-parole period of 15 months. His sentence was suspended upon him entering into a bond to be of good behaviour for a period of two years. It seems that that sentence was considerably lower than it might otherwise have been because the sentencing judge in P’s case took account of a “letter of comfort” provided by the police relating to P’s assistance to them in relation to the offending of Mr Schiworski and his colleagues. Mr Lister submitted that the absence of parity in the treatment of his client with P engendered a legitimate sense of unfairness. The judge rejected a submission to this effect at the time of sentencing. He noted that the circumstances of P’s offending were quite different and that, in any event, his assistance to the police meant that an application for the principles of parity did not arise. In addition, it is to be noted that P’s assistance to the police involved some danger to himself. In my opinion the judge was correct in refusing to accept that parity of treatment with P was required in this case.Conclusion on Suspension