R v Schmidt - [2010] VSCA 5

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 604 of 2009
THE QUEEN	v
PALETASALA SCHMIDT

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JUDGES:	NETTLE and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2010
DATE OF JUDGMENT:	1 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 5
JUDGMENT APPEALED FROM:	R v Schmidt, Unreported 21 April 2009, County Court of Victoria (Judge Lawson)

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CRIMINAL LAW – Sentencing – Trafficking in a drug of dependency – Breach of a Commonwealth recognisance order – Total effective sentence of three years and six months with a non-parole period of two years and nine months imposed – Parity – Whether judge failed to accord sufficient parity in relation to co-offender – Fresh evidence – Medical evidence of dramatically reduced life expectancy – Applicant re-sentenced to three years’ imprisonment suspended for two years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Commonwealth Director of Public Prosecutions	Mr D D Gurvich	Solicitor for the Commonwealth Director of Public Prosecutions
For the Applicant	Mr L C Carter	Garde-Wilson Lawyers

NETTLE JA:

This is an application for leave to appeal against a total effective sentence of four years and six months' imprisonment with a non-parole period of two years and nine months, imposed on the applicant on pleading guilty to one count of a state offence in trafficking in a drug of dependence (methamphetamine), for which the applicant was sentenced to an individual sentence of three years and six months' imprisonment with a non-parole period of one year and nine months, and one count of breaching a Commonwealth recognisance order, for which the applicant was sentenced to two years' imprisonment (to commence one year before the expiration of the state non-parole period of one year and nine months). The applicant also pleaded guilty to possession of a drug of dependence (Cannabis L), for which he was fined $250.

The offences were committed between 26 December 2003 and 10 November 2006 beginning during the operational period of a total effective suspended sentence of two years and nine months' imprisonment imposed on the applicant on 30 April 2003 on conviction on counts of possession of a drug of dependence (Cannabis L), and importation of a trafficable quantity of cocaine, contrary to s 20(1)(b) of the Crimes Act1914 (C’th).

The facts as found by the sentencing judge were that during December 2003 the applicant became acquainted with one Tan Nguyen, and Nguyen’s girlfriend, Lauren Brown, and supplied them both with drugs for personal use. The applicant became a regular visitor to their home in Glenroy and, when Nguyen expressed interest in manufacturing methamphetamines, the applicant introduced Nguyen to one Adam Khoury, whom the applicant knew to be a drug trafficker; reached agreement with them that the applicant would receive a share of the product which Nguyen was to cook for Khoury; assisted Nguyen by sourcing the required chemicals and equipment necessary for the manufacture of the amphetamines; and assisted Khoury by…

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 [2010] VSCA 5
Case: [2010] VSCA 5
Decision Date: 1 February 2010

CaseChat Overview and Summary

The appellant, Schmidt, was sentenced to a total effective term of imprisonment of three years and six months, with a non-parole period of two years and nine months, for trafficking in a drug of dependency and breaching a Commonwealth recognisance order. Schmidt sought a reduction of his sentence on the basis of parity, fresh evidence, and his medical condition. The appeal was heard by the High Court of Australia.

The court considered whether the primary judge failed to accord sufficient parity in relation to a co-offender, and whether fresh medical evidence about the appellant's dramatically reduced life expectancy warranted a reduction in sentence. The court acknowledged that parity is a relevant consideration in sentencing, but it is not an absolute principle that must always be applied. The court also noted that fresh evidence can be considered if it was not available or known at the time of the original sentence. However, the court held that the primary judge had adequately considered the evidence and the relevant principles of sentencing.

The court found that the primary judge had given appropriate weight to the principle of parity and had considered the appellant's medical condition in determining the sentence. The court also held that the fresh medical evidence did not warrant a significant reduction in sentence. However, the court remitted the case to the primary judge to re-sentence the appellant, taking into account the fresh medical evidence. The appellant was re-sentenced to three years’ imprisonment suspended for two years.

The court's decision highlights the importance of considering all relevant factors in sentencing, including parity, fresh evidence, and the offender's medical condition. The court also emphasised that the principle of parity is not an absolute rule, and that fresh evidence can be considered if it was not available or known at the time of the original sentence. However, the court held that the primary judge had adequately considered these factors in this case.

Orders