R v Schipp

Case [2013] QCA 197

SUPREME COURT OF QUEENSLAND

CITATION:

R v Schipp [2013] QCA 197

PARTIES:

R
v
SCHIPP, Michael Troy
(applicant)

FILE NO/S:

CA No 36 of 2013
DC No 1531 of 2012
DC No 87 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2013

JUDGES:

Holmes and Fraser JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – PLEAS – GENERAL PLEAS – PLEA OF GUILTY – EFFECT – where the applicant pleaded guilty to one count of malicious act with intent and one count of wilful damage – where the allocutus was administered and sentence adjourned until after the trial of a co-accused  – where the Crown entered a nolle prosequi on the wilful damage count against the co-accused – where the applicant made an application to vacate the pleas, but later abandoned the application – whether the entry of a nolle prosequi against a co-accused after the verdict against the applicant could apply to the applicant – whether a nolle prosequi can be entered on an indictment after verdict – whether there has been a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of malicious act with intent and one count of wilful damage – where applicant was sentenced to five and a half years imprisonment – where the applicant planned to attack the complainant with two others – where the applicant was intoxicated – where the complainant was lured to a remote location – where the applicant’s co-accused attacked the complainant with a steel bar, whereupon the complainant ran and hid – where the applicant attended upon the complainant’s home and damaged the complainant’s vehicle – where the applicant asserted that a supposed lack of remorse was, in fact, a lack of memory of the event – whether the sentence was manifestly excessive in all the circumstances

Criminal Code 1899 (Qld), s 563, s 648, s 649, s 650

Beckett v New South Wales (2013) 87 ALJR 602; (2013) 297 ALR 206; [2013] HCA 17, followed
Gilchrist v Gardner (1891) 12 LR (NSW) 184; [1891] NSWLawRp 53, cited
R v Brown[1996] QCA 251, considered
R v Cooney [1988] 1 Qd R 464, cited
R v Mitchell[2006] QCA 240, cited
R v Sneesby [1951] St R Qd 26, followed
R v Verrall [2013] 1 Qd R 587; [2012] QCA 310, followed
Van Wyk v Police [2002] SASC 248, cited

COUNSEL:

The applicant appeared on his own behalf
P J McCarthy for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. HOLMES JA:  I agree with the reasons of Douglas J and the order he proposes.

  1. FRASER…

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Details
AGLC
R v Schipp [2013] QCA 197
Case
[2013] QCA 197
Decision Date

CaseChat Overview and Summary

In the case of R v Schipp, the applicant was convicted of one count of malicious act with intent and one count of wilful damage. Following the entry of a guilty plea and after the allocutus, the sentence was adjourned pending the outcome of a trial for a co-accused. Subsequently, the Crown entered a nolle prosequi on the wilful damage charge against the co-accused, prompting the applicant to seek to vacate their guilty plea. However, the application was later abandoned. The court was tasked with determining whether the entry of a nolle prosequi against a co-accused post-verdict could affect the applicant's plea and sentence, as well as whether a nolle prosequi can be entered on an indictment after a verdict has been delivered and whether there was a miscarriage of justice.

The court addressed the legal issues by first considering the procedural implications of the nolle prosequi entered against the co-accused after the applicant's verdict. It was held that the entry of a nolle prosequi by the Crown against a co-accused after the applicant's verdict did not impact the applicant's plea or sentence. The court also noted that a nolle prosequi could be entered on an indictment even after a verdict, as the decision to prosecute lies within the Crown's discretion. However, the court found no miscarriage of justice in the proceedings as the applicant had pleaded guilty voluntarily and was fully aware of the consequences of their plea. The court also dismissed the applicant's challenge to the sentence, finding it was not manifestly excessive given the circumstances of the offence and the applicant's role in the events leading to the conviction.

The final orders of the court were to refuse the application to vacate the pleas and to maintain the original sentence imposed on the applicant. The court's decision highlighted the procedural flexibility available to the Crown in managing criminal prosecutions, while also affirming the principles of fairness and voluntariness in the plea process.

Orders

Orders of the court

Application refused.

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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