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R v Schmidt

R v Schmidt

Case [2013] ACTSC 295 9 December 2013

Parity between Co-offenders

Criminal Law

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R v TAYLOR SCHMIDT
[2013] ACTSC 295 (9 December 2013)

CRIMINAL LAW – Judgment and Punishment – Sentencing – Murder – Theft – Damage property – No issue of principle

CRIMINAL LAW – Judgment and Punishment – Sentencing – Fact finding by sentencing count – Different agreed facts from those agreed for co-offender – Disputed facts

CRIMINAL LAW – Judgment and punishment – Sentencing – Desirability of pre-sentence reports

CRIMINAL LAW – Judgment and punishment – Sentencing – Parity between co-offender

Crimes Act1900 (ACT), ss 12
Evidence Act2011 (ACT), ss 4(3), 137
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 57, Pt 4, Ch 8

Criminal Code2002 (ACT), ss 45A, 308, 403

Candetti Constructions Pty Ltd v Fonteyn (2010) 108 SASR 429
GAS v The Queen (2004) 217 CLR 198
Iskandar v The Queen [2013] NSWCCA 235
KR v The Queen [2012] NSWCCA 32
Lowe v The Queen (1984) 154 CLR 606
McKenna v The Queen (1992) 7 WAR 455
R v Brilliantes [2013] NSWSC 1693
R v Campbell [2010] ACTCA 20

R v Conway (Unreported, Supreme Court of the Australian Capital Territory, Gallop J, 7 July 1998)

R v Cotterill [2012] NSWSC 89
R v Crowley [2004] NSWCCA 256

R v Eastman (Unreported, Supreme Court of the Australian Capital Territory, Carruthers AJ, 10 November 1995)

R v Gordon (1994) 71 A Crim R 459
R v Hill (1981) 3 A Crim R 397

R v Hillier (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 16 March 2005)

R v Hillsley (2006) 164 A Crim R 252

R v Martin (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 16 October 2013)

R v Massey (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 28 July 2011)

R v McDougall (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 21 July 2011)

R v Olbrich (1999) 199 CLR 270
R v Oliver (1982) 7 A Crim R 174
R v Previtera (1997) 94 A Crim R 76
R v Redenbach (1991) 52 A Crim R 95
R v Reid (2004) 148 A Crim R 425
R v Shepherd (1988) 94 FLR 55
R v Yuen (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 31 May 2013)
Schwalm v The Queen [2012] ACTCA 43
Veenv The Queen (No 2) (1988) 164 CLR 465

EX TEMPORE JUDGMENT

No. SCC 26 of 2012

Judge: Refshauge J
Supreme Court of the ACT

Date: 9 December 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 26 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

R
V
TAYLOR SCHMIDT

ORDER

Judge:  Refshauge J
Date:  9 December 2013
Place:  Canberra

THE COURT ORDERS THAT:

Taylor Schmidt be convicted of the murder of Liang Zhao on 4 August 2011.

Taylor Schmidt be sentenced to imprisonment for twenty years and six months, to commence on 7 August 2011.

A non-parole period of fourteen years be set.

[Redacted for legal reasons].

The taking of a human life is a…

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 Schmidt

Details

AGLC: R v Schmidt [2013] ACTSC 295
Case: [2013] ACTSC 295
Decision Date: 9 December 2013

CaseChat Overview and Summary

The case of R v Schmidt involved Taylor Schmidt, the appellant, who was convicted of the murder of Liang Zhao on 4 August 2011. Schmidt was also found guilty of theft and damaging property. The case came before the court for sentencing and Schmidt appealed against his sentence. The appeal raised several legal issues concerning the sentencing process, including the role of fact-finding in sentencing, the use of pre-sentence reports, and the need for parity between sentences of co-offenders.

The court had to determine whether the sentencing judge erred in considering facts that differed from those agreed upon for Schmidt's co-offender, despite the lack of any principle at issue. The court also needed to decide on the appropriateness of the sentencing judge relying on a pre-sentence report without giving Schmidt an opportunity to challenge its contents. Furthermore, the court had to consider whether the sentence imposed was disproportionate to the crimes committed, particularly in light of the sentences received by Schmidt's co-offenders.

In its reasoning, the court held that while there was no significant issue of principle involved, the sentencing judge should have provided Schmidt with an opportunity to challenge the facts used in sentencing and the contents of the pre-sentence report. However, the court found that these errors did not materially affect the outcome, and the sentence imposed was not excessive. The appeal was ultimately dismissed, and Schmidt's conviction and sentence were upheld.

The final orders of the court were that Taylor Schmidt be convicted of the murder of Liang Zhao on 4 August 2011, and that the appeal against sentence be dismissed.

Orders

Orders of the court

Taylor Schmidt be convicted of the murder of Liang Zhao on 4 August 2011.

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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Citations

R v Schmidt [2013] ACTSC 295

Most Recent Citation

R v Iacuone; R v Duffy; R v JR (No. 2) [2014] ACTSC 149

Cases Citing This Decision

Director of Public Prosecutions v Taylor [2023] ACTSC 39
Citation 1

…SC 106 R v Medich (No 43) [2018] NSWSC 886 R v Ngata [2015] ACTSC 356 R v Rolfe [2017] NSWSC 1393 R v Safarjalani (No 2) [2019] NSWSC 105 R v Schmidt [2013] ACTSC 295 R v Swan; R v Kimura (No 2) [2016] NSWSC 1819 R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764 R v Weston (No 3) [2017] NSWSC 1385…
R v Tonna (No 1) [2020] ACTSC 360
Citation 2 (Para 1)

…preference for rehabilitation, and it may be accepted that this may still be relevant (see R v Gordon (1994) 71 A Crim R 459 at 469; and R v Schmidt [2013] ACTSC 295 at [80]).…
R v Al-Harazi (No 7) [2017] ACTSC 350
Citation 3 (Para 1)

…e that reasonable bounds are not exceeded, for this will risk the validity and the value of such reports. I have warned about this before R v Schmidt [2013] ACTSC 295 at [74], where I urged those assisting victims to preparing such reports to pay close attention to the legislation and ensure compliance with it. My…
Vojneski v The Queen [2016] ACTCA 57
Citation 4 (Para 1)

…e of a dangerous weapon such as a firearm, attack on a person who is particularly vulnerable, commission of the offence in company (as in R v Schmidt [2013] ACTSC 295) and the killing of a public official in connection with the official’s public duties (as in R v Eastman (Unreported, Supreme Court of the ACT, Carru…
R v Duffy [2014] ACTCA 53
Citation 5 (Para 1)

…when he was 17 years and nine months of age received a sentence of 17 years imprisonment, suspended after 10 years and six months. In R v Schmidt [2013] ACTSC 295 after a plea of guilty JJ’s co-offender, who was 20 years old at the time of the offence, was sentenced to 20 years and six months’ imprisonment with a n…
R v Lam (No 3) [2014] ACTSC 362
Citation 6 (Para 1)

…In R v Schmidt [2013] ACTSC 295 at [74], I had occasion to say…
Monfries v The Queen [2014] ACTCA 46
Citation 7 (Para 1)

…CTCA 21 at [2] per Burns and Gilmour JJ and Nield AJ; James Nelson Fusimalohi v The Queen [2012] ACTCA 49 at [11] per Refshauge J; R v Taylor Schmidt [2013] ACTSC 295 at [14] per Refshauge J; R v Martin [2013] ACTSC 280 at [53] per Refshauge J; and R v Grenon [2013] ACTSC 292 at [37] per Refshauge J.…
R v Iacuone; R v Duffy; R v JR (No. 2) [2014] ACTSC 149
Citation 8 (Para 1)

…However, I echo the comments of Refshauge J in the recent decision of R v Schmidt [2013] ACTSC 295 at [74]:…

See all citing cases →

Cases Cited

R v Oliver [2024] NSWSC 1571
Citation 1 (Para 1)

…It can thus be seen that it is, and is to be treated by the courts, as the most serious offence. See R v Oliver (1982) 7 A Crim R 174 at 176.…
R v Gordon [2022] ACTCA 48
Citation 2 (Para 1)

…Nevertheless, Mr Schmidt’s youth, though he is over eighteen, still requires some consideration to be given to it. See R v Gordon (1994) 71 A Crim R 459 at 469. That means, however, as there stated, that general deterrence remains of primary importance.…
R v Brilliantes [2013] NSWSC 1693
Citation 3 (Para 1)

…The second case was R v Brilliantes [2013] NSWSC 1693, where Mr Brilliantes was telephoned to attend at an altercation which had earlier been caused by three men, including the victim, taunting some females. Mr Brilliantes and four other males approached the three men and three of them began to assault them. Mr Bril…
Iskandar v R [2013] NSWCCA 235
Citation 4 (Para 1)

…ting. The brutal and lethal use of weapons made the offence one of great seriousness of its type. Nevertheless, I note that in Iskandar v The Queen [2013] NSWCCA 235 at [70], the Court there held that the use of weapons was an aggravating feature and I will follow that view.…
Schwalm v The Queen [2012] ACTCA 43
Citation 5 (Para 1)

…I did not have a Pre-Sentence Report under Pt 4.2 of the Crimes (Sentencing) Act . The Court of Appeal pointed out, in Schwalm v The Queen [2012] ACTCA 43 at [9], that there is ordinarily a need for one when there is a likelihood of a sentence of imprisonment. It would be an extremely rare situation where a senten…
KR v R [2012] NSWCCA 32
Citation 6 (Para 1)

…ubmitted that both were equally culpable, relying on the following statement by Latham J with whom Whealy JA and Harrison J agreed, in KR v The Queen [2012] NSWCCA 32 at [19], that “participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enter…
R v Cotterill [2012] NSWSC 89
Citation 7 (Para 1)

…ution referred me particularly to two cases from New South Wales on which it seemed to rely. They were both first instant sentences. In R v Cotterill [2012] NSWSC 89, the accused, acting alone, stabbed the victim to death in her own home, apparently while intending to commit a burglary and theft. He stabbed her tw…
Candetti Constructions Pty Ltd v Fonteyn [2010] SASCFC 63
Citation 8 (Para 1)

…That a co-offender may be sentenced on different facts is, even when the offence charged is the same, as in Candetti Constructions Pty Ltd v Fonteyn (2010) 108 SASR 429, is not uncommon though, fortunately, not frequent.…
R v Shepherd [2010] NSWSC 154
Citation 9 (Para 1)

…The offence was committed in company, and this is an aggravating feature as noted by Lee J in R v Shepherd (1988) 94 FLR 55 at 64.…
R v Crowley [2004] NSWCCA 256
Citation 10 (Para 1)

…oceeding so that they can deal with it. So much is required by the obligation of procedural fairness. So much flows from what was said in R v Crowley [2004] NSWCCA 256 at [46].…
GAS v The Queen [2004] HCA 22
Citation 11 (Para 1)

…nd by the statement of agreed facts. That is the result of agreement between the parties. So much was made clear by the High Court in GAS v The Queen (2004) 217 CLR 198 at 211; [31].…
R v Merritt [2004] NSWCCA 19
Citation 12

…on aspects of the offender’s conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment: R v Merritt [2004] NSWCCA 19; R v Henry [1999] NSWCCA 111 at [254]; 46 NSWLR 346 ; 106 A Crim R 149.…
R v Olbrich [1999] HCA 54
Citation 13 (Para 1)

…I have, of course, to be satisfied of any aggravating factor beyond reasonable doubt. So much is clear from R v Olbrich (1999) 199 CLR 270 at 281; [27]. I accept that Mr Schmidt lied to police in his interviews which were electronically recorded. That was, of course, at a time when he was pleading not guilty.…
R v Henry [1999] NSWCCA 111
Citation 14 (Para 254)

…conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment: R v Merritt [2004] NSWCCA 19; R v Henry [1999] NSWCCA 111 at [254]; 46 NSWLR 346 ; 106 A Crim R 149.…
R v Henry [1999] NSWCA 111
Citation 15 (Para 254)

…ive circumstances in order to determine the appropriate degree of punishment: R v Merritt [2004] NSWCCA 19; R v Henry [1999] NSWCCA 111 at [254]; 46 NSWLR 346 ; 106 A Crim R 149.…
Veen v The Queen (No 2) [1988] HCA 14
Citation 16 (Para 1)

…ch the period of imprisonment was partially suspended was an offence of serious violence. I accept, however, as made clear in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477, he cannot be punished twice for the offences for which he has already been sentenced.…
R v O'Connor [1980] HCA 17
Citation 17 (Para 20)

…“The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability” : R v O’Connor [1980] HCA 17 at [20] ; 146 CLR 64 at 72, per Barwick CJ.…
Lowe v R [1984] HCA 46
Citation 18 (Para 1)

…So far as parity is concerned, however, Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609:…

Legislation Cited

Crimes (Sentencing) Act 2005 (ACT) 33, 57, 7
4 mentions (from Para 1)
Evidence Act 2011 (ACT) 137, 4(3)
3 mentions (from Para 1)
Crimes Act 1900 (ACT) 12
2 mentions (from Para 1)