R v Schaefer & Schiworski

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.