R v Schneider - [2007] VSCA 103

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 261 of 2006

THE QUEEN
	v
MARK STEWART SCHNEIDER

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JUDGES:	BUCHANAN, ASHLEY and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 May 2007
DATE OF JUDGMENT:	18 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 103

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Criminal law – Sentence – Aggravated burglary – Armed robbery – Attempting to obtain property by deception – Obtaining property by deception – Home invasion and its aftermath – Youthful offender – Whether judge failed to give adequate weight to prospect of rehabilitation – Whether judge over-emphasized general deterrence – Whether error in extent of cumulation for offence of obtaining property by deception – No errors disclosed – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr T Kassimatis	Stephen Andrianakis & Associates

BUCHANAN JA:

I will ask Ashley JA to deliver the first judgment.

ASHLEY JA:

I would refuse the application for leave to appeal. These are my reasons.

In August 2006, the applicant, Mark Schneider, pleaded guilty in the County Court to single counts of the following offences: aggravated burglary (count 1),[1] armed robbery (count 2),[2] attempt to obtain property by deception (count 3),[3] obtain property by deception (count 4),[4] possession of a drug of dependence (count 5).[5] He admitted some 18 prior convictions from four previous court appearances over the period February 2004 to September 2005. Most of those offences related, in one way or another, to the misuse of motor vehicles. Once he was sentenced to a period of imprisonment wholly suspended, which order he breached and then breached again by committing the instant offences. Once he was sentenced to be released on an intensive correction order, and the instant offences occurred within the period of the operation of that order.
[1]Crimes Act 1958, s 77(1). The maximum penalty is 25 years’ imprisonment.
[2]Ibid, s 75A. The maximum penalty is 25 years’ imprisonment.
[3]Ibid, s 321M. The maximum penalty is 5 years’ imprisonment.
[4]Ibid, s 81(1). The maximum penalty is 10 years’ imprisonment.
[5]Drugs, Poisons and Controlled Substances Act 1981, s 73. The maximum penalty is a fine of five penalty units.

On 17 August, the applicant was sentenced as follows:
count 1: two years and six months' imprisonment;
count 2: two years and six months' imprisonment;
count 3: six months' imprisonment;
count 4: 12 months' imprisonment;
count 5: a fine of $200.
The learned judge cumulated three months of the sentence on count 3 and nine months of the sentence on count 4 on the sentence passed on count 2, this resulting in a total effective sentence of three years and six months' imprisonment. He fixed a non-parole period of two years and made certain consequential orders.

The applicant applied for leave to appeal against sentence. On 8 December 2006, Callaway JA refused the leave sought. Thereafter the applicant elected to have his application for leave to appeal determined by the Court of…

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 Schneider

Details

AGLC: R v Schneider [2007] VSCA 103
Case: [2007] VSCA 103
Decision Date: 18 May 2007

CaseChat Overview and Summary

The case of R v Schneider involved the appellant, who had pleaded guilty to various offences including aggravated burglary, armed robbery, and obtaining property by deception. The sentencing and appeal process took place in the Supreme Court of Victoria. The appellant argued that the trial judge failed to adequately consider the prospect of rehabilitation, overemphasised general deterrence, and erred in the extent of cumulation for the obtaining property by deception charge.

The primary legal issues the court had to address were whether the trial judge made errors in sentencing by not giving sufficient weight to the appellant's potential for rehabilitation, by overemphasising general deterrence, and by incorrectly calculating the extent of cumulation for the obtaining property by deception charge. The appellant's legal team contended that the trial judge should have focused more on the appellant's prospects for rehabilitation, given his young age at the time of the offences. They also argued that the judge's emphasis on general deterrence was disproportionate given the circumstances of the case. Lastly, the appellant's counsel contended that the extent of cumulation applied for the obtaining property by deception charge was excessive.

The court examined the trial judge's sentencing remarks and concluded that no errors were disclosed. The court found that the trial judge had considered the appellant's prospects for rehabilitation and appropriately balanced this with the need for general deterrence. The court also found that the trial judge had correctly applied the principles of cumulation. The appeal was dismissed, and the appellant's sentence was upheld. The court found that the trial judge had properly exercised their discretion in sentencing the appellant, taking into account all relevant factors and appropriately balancing the interests of the community with the appellant's prospects for rehabilitation.

Orders