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R v Scheeren

R v Scheeren

Case [2014] ACTSC 272 16 October 2014

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Scheeren
Citation:	[2014] ACTSC 272
Hearing Date(s):	24 September 2014, 16 October 2014
DecisionDate:	16 October 2014
Before:	Murrell CJ
Decision:	Effective sentence of 8 years imprisonment with a nonparole period of two years and eight months.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – offences of indecent assault and buggery – historical offences – delay in prosecution –prosecution previously statute barred – “current sentencing practice” – applicable sentencing pattern
Legislation Cited:	Crimes (Sentencing) Act2005 (ACT) ss 7, 33(1) Crimes Act 1900 (ACT) ss 79, 81, 92E, 92K, 441 Human Rights Act2004 (ACT) ss 25, 30 Crimes Act1900 (NSW) ss 61E, 61M Crimes (Sentencing Procedure) Act1999 (NSW) s 19 Sentencing Act 1991 (Vic) s 5(2)
Cases Cited:	AJB v The Queen (2007) 169 A Crim R 32 Dousha v The Queen [2008] NSWCCA 263 MJL v The Queen [2007] NSWCCA 261 Monfries v The Queen [2014] ACTCA 46 Pearce v The Queen (1998) 194 CLR 610 R v Blanco [1999] NSWCCA 121 R v King [2013] ACTCA 29 R v MJR (2002) 54 NSWLR 368 R v Moon (2000) 117 A Crim R 497 R v Roberts [2003] NSWCCA 309 R v Schumacher (Unreported, Supreme Court of the Australian Capital Territory, McGregor J, 15 January 1980) R v Shore (1992) 66 A Crim R 37 R v Wruck [2014] QCA 39 Stalio v The Queen (2012) 223 A Crim R 261
Parties:	The Queen (Crown) Willem Bowen Scheeren (Offender)
Representation:	Counsel Ms S Gul (Crown) Mr R Livingston (Offender)

Solicitors

Director of Public Prosecutions (ACT) (Crown)

Lander & Co (Offender)

File Number(s):

SCC 147 of 2014

MURRELL CJ:

Offences

The offender pleaded guilty at the earliest reasonable opportunity to 12 sexual offences that occurred between 1 December 1979 and 31 December 1980, when the offender was 23 to 24 years of age. The offences involved one victim, who was then aged between 11 and 12 years old. The 12 offences occurred during four separate incidents.

The offences are one count of buggery (contrary to s 79 of the Crimes Act 1900 (ACT) (Crimes Act) as in force at that time) and 11 counts of indecent assault on a male (contrary to s 81 of the Crimes Act as in force at that time). At the relevant time, all sexual assaults against a male apart from buggery were prosecuted as indecent assault, including fellatio.

In relation to the buggery count, the maximum available sentence is life imprisonment, and a sentence of not less than five years’ imprisonment must be imposed. In relation to the remaining counts, the maximum available sentence is five years’ imprisonment.

In recognition of the utilitarian value of the early pleas, the offender will receive the usual discount of 25%.

Facts

A detailed statement of facts is contained in Exhibit 1.

At the outset, I acknowledge the terrible impact that these offences must have had upon the victim. I do…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Scheeren

Details

AGLC: R v Scheeren [2014] ACTSC 272
Case: [2014] ACTSC 272
Decision Date: 16 October 2014

CaseChat Overview and Summary

The case before the court involved the respondent, Scheeren, who was convicted of offences of indecent assault and buggery that occurred over 20 years ago. The delay in prosecution led to the offences being statute-barred, but the application of the "current sentencing practice" principle allowed the case to proceed. Scheeren was ultimately convicted and sentenced by the Supreme Court of Victoria. The central issue the court had to resolve was the appropriate sentence for these historical offences, taking into account the delay in prosecution and the principle of "current sentencing practice."

The court considered the historical nature of the offences and the significant delay in prosecution. It was noted that while the offences were statute-barred, the "current sentencing practice" principle provided a legal pathway to address these historical crimes. The court acknowledged the importance of ensuring that the sentence reflects contemporary standards and the gravity of the offences, despite the passage of time. In determining the sentence, the court also considered the principle of proportionality and the need to balance the punishment with the delay in prosecution.

The court concluded that an effective sentence of eight years imprisonment, with a nonparole period of two years and eight months, was appropriate. This sentence was deemed necessary to reflect the seriousness of the offences, while also considering the substantial delay in prosecution. The court emphasised that the sentence should align with current sentencing practices, ensuring that justice is served in a manner consistent with contemporary standards. The judgment provided clear guidelines on how to approach sentencing for historical offences, balancing the need for deterrence and retribution with the realities of delayed prosecution.

ORDERS:
Effective sentence of 8 years imprisonment with a nonparole period of two years and eight months.

Orders

Orders of the court

Effective sentence of 8 years imprisonment with a nonparole period of two years and eight months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

R v Scheeren [2014] ACTSC 272

Most Recent Citation

R v Nona [2015] ACTSC 136

Cases Citing This Decision

The Queen v Ware (a pseudonym) [2022] ACTCA 14
Citation 1 (Para 1)

…terns at the time when the relevant offence was committed, where those patterns were more lenient than current sentencing patterns”: R v Scheeren [2014] ACTSC 272 at [57], applied in R v WR (no 5) [2015] ACTSC 258 at [36]-[38] and more recently in relation to an offence under s 56 of the Crimes Act in R v EN [2019]…
KC v The Queen [2021] ACTCA 10
Citation 2

…R v EN [2019] ACTSC 354 R v King [2013] ACTCA 29 R v Scheeren [2014] ACTSC 272 Tully v The Queen [2016] ACTCA 11…
The Police v AB [2020] ACTMC 16
Citation 3 (Para 1)

…I have had regard to the comparative sentences of R v EN [2019] ACTSC 354; R v Marsh [2019] ACTSC 251; R v Trezise [2018] ACTSC 135; and R v Scheeren [2014] ACTSC 272 and note that while they are relevant and useful, they have limitations.…
R v Cattle (No 3) [2020] ACTSC 135
Citation 4 (Para 1)

…In R v Scheeren [2014] ACTSC 272, the offender was sentenced for 11 offences of indecent assault and one of buggery, all of which were committed around 1980 against one victim, who was then aged between 11 and 12 years old. Through the Cubs Association, the offender had befriended the complainant’s family and they…
R v KC [2020] ACTSC 94
Citation 5 (Para 1)

…9] ACTSC 354, R v KN (No 2) [2019] ACTSC 5, R v Sirl (No 3) [2019] ACTSC 355, R v Degioannis [2019] ACTSC 47, R v Tully [2016] ACTCA 11, R v Scheeren [2014] ACTSC 272 and R v King [2013] ACTCA 29. None of these cases are identical to the present case but they do provide some assistance.…
R v EN [2019] ACTSC 354
Citation 6 (Para 1)

…The parties informed me that there were no relevant authorities on the point. There is however some relevant discussion in R v Scheeren [2014] ACTSC 272, in particular from [52]. At [56] and [57] the Chief Justice said this:…
R v Marsh [2019] ACTSC 251
Citation 7 (Para 1)

…The offender had two responses to my question. Firstly, it was said that I should follow the approach taken by Murrell CJ in R v Scheeran [2014] ACTSC 272 at [44]. It was submitted that the clear intent of the legislature in introducing s 34A should not surmount the statement of fundamental principle made by the Ch…
R v Bek (No 2) [2019] ACTSC 324
Citation 8 (Para 1)

…s in which sentences have been imposed for historical sexual offences including R v Djenadija [2015] ACTSC 207; R v KS [2018] ACTSC 220; R v Scheeren [2014] ACTSC 272; and, R v Trezise [2018] ACTSC 135.…
R v MC (No 2) [2019] ACTSC 61
Citation 9 (Para 1)

…ACTSC 207 ( Djenadija ) ; R v HI [2015] ACTSC 373 ( HI ) ; R v Trezise [2018] ACTSC 135 ( Trezise ) ; R v KS [2018] ACTSC 220 ( KS ) and R v Scheeren [2014] ACTSC 272 ( Scheeren ) by counsel for the offender.…
R v Trezise [2018] ACTSC 135
Citation 10 (Para 1)

…In R v Scheeren [2014] ACTSC 272 the offender faced 11 counts of indecent assault and one count of buggery. The offender had come into contact with the victim because he was a scout leader. He was aged 23 years at the time of the offending. He abused the victim in his shoe shop. The offences occurred during the yea…
R v Marsh [2017] ACTSC 405
Citation 11 (Para 1)

…arises is whether the minimum penalty of five years' imprisonment remains a requirement when sentencing for such an historic offence. In R v Scheeren [2014] ACTSC 272 Murrell CJ accepted that the five year minimum sentence continued to apply but there does not appear to have been any argument addressed on the issue…
R v Goold (No 2) [2016] ACTSC 228
Citation 12 (Para 1)

…I think it clear from the decision of the Chief Justice in R v Scheeren [2014] ACTSC 272, taking into account the Human Rights legislation in the ACT, that the sentencing process should be conducted on the basis of the trends in sentencing existing at the time of the offence, 1993, provided offences were not then b…
R v NC [2016] ACTSC 111
Citation 13 (Para 1)

…prevailed at the time the offences were committed, to the extent that that practice can be established ( R v WR (No 5) [2015] ACTSC 258; R v Scheeren [2014] ACTSC 272 ( Scheeren ); R v Nona [2015] ACTSC 136) ( Nona ). In the case of Nona , Murrell CJ noted at [49], after considering submissions from counsel, that s…
R v WR (No 5) [2015] ACTSC 258
Citation 14 (Para 1)

…In the case of R v Scheeren [2014] ACTSC 272 ( Scheeren ), Murrell CJ concluded that if sentencing patterns at the time of an offence showed more leniency than current patterns, this should be taken into account in sentencing, especially having regard to the similar (although not identical) principle relating to re…
R v WR (No 4) [2015] ACTSC 211
Citation 15 (Para 1)

…umber of cases, all of which I have read and for which I thank them for their assistance. Of particular utility to me is the decision of R v Scheeren [2014] ACTSC 272, 16 October 2014, a decision of the Chief Justice in which she comprehensively looked at sentencing patterns in 1980 and 1981 concluding that there w…
R v Djenadija [2015] ACTSC 207
Citation 16 (Para 1)

…dressed by s 33(1)(za) of the Sentencing Act ) and "sentencing patterns": see Monfries v The Queen [2014] ACTCA 46 at [82] – [84], R v Scheeren [2014] ACTSC 272 at [44] – [57] (where the distinction was better expressed) and R v Nona [2015] ACTSC 136 at [48] – [50]. “Current sentencing practice” refers to the sente…
R v Nona [2015] ACTSC 136
Citation 17 (Para 1)

…The pattern in relation to the setting of non‑parole periods has not been ascertained. However, in R v Scheeren [2014] ACTSC 272 research was done into the pattern of non-parole periods in the 1980s, and it was found that non-parole periods were generally lower than those that are currently set. I infer that, if an…

See all citing cases →

Cases Cited

Monfries v The Queen [2014] ACTCA 46
Citation 1 (Para 1)

…n current sentencing practice or practices and current sentencing patterns, although the distinction has often been confused. In Monfries v The Queen [2014] ACTCA 46, the Court of Appeal considered s 33(1)(za). The Court adopted the approach that has been taken in Victoria to a similar provision, s 5(2)(b) of the…
R v Wruck [2014] QCA 39
Citation 2 (Para 1)

…mitted. However, referring to R v MJR (2002) 54 NSWLR 368, AJB v The Queen (2007) 169 A Crim R 32, MJL v The Queen [2007] NSWCCA 261, R v Wruck [2014] QCA 39, the Court held that sentencing practices (patterns) at the time when the offence was committed could also be relevant; such practices (patterns) may illum…
R v King [2013] ACTCA 29
Citation 3 (Para 1)

…The Court was referred to R v King [2013] ACTCA 29, in which the Court of Appeal upheld a Crown appeal against the inadequacy of sentences imposed for 25 sexual offences committed on 5 boys aged between 10 and 16 years. The offences occurred between 1989 and 1997. They involved different offence provisions (releva…
Stalio v The Queen [2012] VSCA 120
Citation 4 (Para 1)

…the Sentencing Act 1991 (Vic), which provides that, in sentencing an offender, a court “must have regard to … current sentencing practices”. In Stalio v The Queen (2012) 223 A Crim R 261, Neave and Osborn JJA and King AJA decided that s 5(2)(b) means that a sentencing judge must have regard to sentencing practices (patterns…
Dousha v R [2008] NSWCCA 263
Citation 5 (Para 1)

…e decisions do not reveal any distinct pattern of sentencing, the decisions cannot be relied upon to show a pattern of sentencing: Dousha v The Queen [2008] NSWCCA 263.…
MJL v R [2007] NSWCCA 261
Citation 6 (Para 1)

…time when the offence was committed. However, referring to R v MJR (2002) 54 NSWLR 368, AJB v The Queen (2007) 169 A Crim R 32, MJL v The Queen [2007] NSWCCA 261, R v Wruck [2014] QCA 39, the Court held that sentencing practices (patterns) at the time when the offence was committed could also be relevant; such pract…
R v Roberts [2003] NSWCCA 309
Citation 7 (Para 1)

…bjective and subjective features and maximum penalty: R v Moon (2000) 117 A Crim R 497 per Howie J at [41], R v MJR per Sully J at [107], R v Roberts [2003] NSWCCA 309 per Howie J at [20]. Where limited decisions are available and those decisions do not reveal any distinct pattern of sentencing, the decisions cannot…
R v MJK [2001] NSWCCA 325
Citation 8 (Para 1)

…impose a sentence appropriate not only to the then applicable statutory maximum penalty but also to the then appropriate sentencing pattern: R v MJR (2002) 54 NSWLR 368 at [31], [69], [71] and [105] (a five-judge bench of the Court of Criminal Appeal, Mason P dissenting) approving R v Shore (1992) 66 A Crim R 37 per…
R v Blanco [1999] NSWCCA 121
Citation 9 (Para 1)

…In R v Blanco [1999] NSWCCA 121 at [16] and [17] Wood CJ at CL said that delay may be relevant to a sentencing exercise first, because of the “uncertain suspense” in which an offender may have been left, second, because the offender may have demonstrated progress toward rehabilitation during the intervening period,…
Siganto v the Queen [1998] HCA 74
Citation 10

…liament manifests an intention that a new sentencing regime operate retrospectively, the courts will give effect to that intention (see Siganto v The (1998) 194 CLR 656 at 662). It may also be the case that the purpose to be served by a change in sentencing practice would require the court to take into account the ne…
Pearce v The Queen [1998] HCA 57
Citation 11 (Para 1)

…The Court is required to sentence in an appropriate manner having regard to the decisions in Pearce v The Queen (1998) 194 CLR 610 and Mill v The Queen (1988) 166 CLR 59, considering the correct sentence for each offence and accumulating sentences so as to properly reflect the totality of the criminal behaviour.…
Mill v The Queen [1988] HCA 70
Citation 12 (Para 1)

…e Court is required to sentence in an appropriate manner having regard to the decisions in Pearce v The Queen (1998) 194 CLR 610 and Mill v The Queen (1988) 166 CLR 59, considering the correct sentence for each offence and accumulating sentences so as to properly reflect the totality of the criminal behaviour.…
[1944] KB 68 [1944] KB 68
Citation 13

…ecisions held that the maximum at the date of the conviction is applicable ( DPP v Lamb [1941] 2 KB 89; Buckman v Button [1943] KB 405 and R v Oliver [1944] KB 68). These decisions have been subject to criticism in England and would now be inconsistent with Article 7 of the European Convention of Human Rights —…
[1941] 2 KB 89 [1941] 2 KB 89
Citation 14

…the commission of the offence and trial. A number of English decisions held that the maximum at the date of the conviction is applicable ( DPP v Lamb [1941] 2 KB 89; Buckman v Button [1943] KB 405 and R v Oliver [1944] KB 68). These decisions have been subject to criticism in England and would now be inconsistent…
[1943] KB 405 [1943] KB 405
Citation 15

…trial. A number of English decisions held that the maximum at the date of the conviction is applicable ( DPP v Lamb [1941] 2 KB 89; Buckman v Button [1943] KB 405 and R v Oliver [1944] KB 68). These decisions have been subject to criticism in England and would now be inconsistent with Article 7 of the European…

Legislation Cited

Crimes Act 1900 (ACT) 441, 61E, 61M, 79, 81, 92E, 92K
8 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW) 19
3 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT) 33(1), 7
3 mentions (from Para 1)
Human Rights Act 2004 (ACT) 25, 30
3 mentions (from Para 1)
Sentencing Act 1991 (Vic) 5(2)
2 mentions (from Para 1)