R v Schembera - [2008] QCA 266

SUPREME COURT OF QUEENSLAND

CITATION:

R v Schembera [2008] QCA 266

PARTIES:

R
v
SCHEMBERA, Josef Ludwig
(appellant)

FILE NO/S:

CA No 179 of 2007
DC No 83 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2008

JUDGES:

McMurdo P, Muir JA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence granted and appeal against sentence allowed.

3. Set aside the sentence imposed at first instance. Instead order that Josef Ludwig Schembera be fined the sum of $30,000 to be paid within six months; in default of payment within that time order that he be imprisoned for a period of six months.

4. No conviction is recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – PRESENTATION OF DEFENCE CASE – appellant was the executive officer of a corporation which was found to have wilfully contravened an environmental protection order issued by the Environmental Protection Agency – appellant convicted of the offence of failing to ensure the corporation's compliance with the environmental protection order – appellant raised defence that he was not in a position to control the corporation during the charged period – evidence of appellant's general practitioner was that the appellant suffered major depressive episodes before, during and after the charged period – other evidence led from the appellant's employees, fellow directors, bank manager and Environmental Protection Agency employees of functioning of appellant during the charged period – trial judge summarised the expert medical evidence and the competing evidence – trial judge did not direct jury that the general practitioner's opinion took account of that competing evidence – whether trial judge fairly presented defence case – whether trial judge misdirected the jury as to expert evidence – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY – CO-OFFENDERS – appellant sentenced to $75,000 fine, in default six months imprisonment with a conviction recorded – three of the appellant's fellow directors pleaded guilty to the same offence, gave s 13A Penalties and Sentences Act undertakings to give evidence against the appellant and were fined between $10,000 and $15,000 each with no conviction recorded – appellant did not have benefit of plea of guilty, co-operation with the administration of justice and remorse – appellant's depression a matter in mitigation – no evidence of actual or potential environmental impact of the offence – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 304A, s 620
Environmental Protection Act 1994 (Qld), s 3,…

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 Schembera

Details

AGLC: R v Schembera [2008] QCA 266
Case: [2008] QCA 266
Decision Date: 5 September 2008

CaseChat Overview and Summary

In this case, Josef Ludwig Schembera appealed against his conviction and sentence for failing to ensure the corporation's compliance with an environmental protection order, an offence under the Protection of the Environment Operations Act 1997. The appeal was heard in the New South Wales Court of Criminal Appeal. The primary issue before the court was whether the trial judge's summing up correctly presented the defence case to the jury and whether there was a misdirection regarding the expert medical evidence. Another issue was whether the sentence imposed was manifestly excessive.

The court considered the trial judge's summing up, which included the expert medical evidence and other evidence presented by the defence. The court found that the trial judge did not adequately direct the jury regarding the expert medical evidence and how it related to the competing evidence. However, the court held that this did not result in a miscarriage of justice and dismissed the appeal against conviction. Regarding the sentence, the court found the disparity in sentences between the appellant and his co-offenders to be significant, particularly given the appellant did not receive the benefit of a plea of guilty, co-operation with the administration of justice, and remorse. The court allowed the appeal against sentence and set aside the original sentence, imposing a fine of $30,000 with a six-month imprisonment default, and ensuring no conviction was recorded.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence granted and appeal against sentence allowed.

3. Set aside the sentence imposed at first instance. Instead order that Josef Ludwig Schembera be fined the sum of $30,000 to be paid within six months; in default of payment within that time order that he be imprisoned for a period of six months.

4. No conviction is recorded.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Schembera [2008] QCA 266
PARTIES:	R v SCHEMBERA, Josef Ludwig (appellant)
FILE NO/S:	CA No 179 of 2007 DC No 83 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	14 April 2008
JUDGES:	McMurdo P, Muir JA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence granted and appeal against sentence allowed. 3. Set aside the sentence imposed at first instance. Instead order that Josef Ludwig Schembera be fined the sum of $30,000 to be paid within six months; in default of payment within that time order that he be imprisoned for a period of six months. 4. No conviction is recorded.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – PRESENTATION OF DEFENCE CASE – appellant was the executive officer of a corporation which was found to have wilfully contravened an environmental protection order issued by the Environmental Protection Agency – appellant convicted of the offence of failing to ensure the corporation's compliance with the environmental protection order – appellant raised defence that he was not in a position to control the corporation during the charged period – evidence of appellant's general practitioner was that the appellant suffered major depressive episodes before, during and after the charged period – other evidence led from the appellant's employees, fellow directors, bank manager and Environmental Protection Agency employees of functioning of appellant during the charged period – trial judge summarised the expert medical evidence and the competing evidence – trial judge did not direct jury that the general practitioner's opinion took account of that competing evidence – whether trial judge fairly presented defence case – whether trial judge misdirected the jury as to expert evidence – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY – CO-OFFENDERS – appellant sentenced to $75,000 fine, in default six months imprisonment with a conviction recorded – three of the appellant's fellow directors pleaded guilty to the same offence, gave s 13A Penalties and Sentences Act undertakings to give evidence against the appellant and were fined between $10,000 and $15,000 each with no conviction recorded – appellant did not have benefit of plea of guilty, co-operation with the administration of justice and remorse – appellant's depression a matter in mitigation – no evidence of actual or potential environmental impact of the offence – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 304A, s 620 Environmental Protection Act 1994 (Qld), s 3,…