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R v Schodde

R v Schodde

Case [2003] NSWCCA 164 25 June 2003

Sentencing

Criminal Law

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Reported Decision:
142 A Crim R 307

New South Wales

Court of Criminal Appeal

CITATION: Regina v Allan Wayne SCHODDE [2003] NSWCCA 164

HEARING DATE(S): 7/5/03

JUDGMENT DATE:
25 June 2003

JUDGMENT OF: Giles JA at 1; Bell J at 2; Carruthers AJ at 35

DECISION: Extend the time in which to bring the application; Grant the application; Allow the appeal and quash the sentences imposed in the District Court and in lieu thereof substitute the following sentences; (i) count 1 - three years imprisonment to date from 30 October 2002 and to expire on 29 October 2005. Specify a non-parole period of eighteen months and direct the applicant's release on parole at the expiration of the non-parole period on 29 April 2004; (ii) counts 2, 3 & 4 - six months imprisonment to date from 30 October 2002 and to expire on 29 April 2003; 4. Stay the execution of Order 3 for a period of fourteen days from today's date to allow the applicant the opportunity to make any application to this Court as he may be advised to make

CATCHWORDS: Periodic detention - need to fix term of sentence before considering alternatives to full-time custody

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CASES CITED: Neal v The Queen (1982) 149 CLR 305
R v Bacon [2000] NSWCCA 549
R v Bang (unreported, NSWCCA, 1 September 1992)
R v Butcher [2001] NSWCCA 188
R v CBK [2002] NSWCCA 457
R v Fogg [2002] NSWCCA 395
R v Foster [2001] NSWCCA 215
R v Hanslow [2002] NSWCCA 161
R v Hennock [2002] NSWCCA 229
R v Hofer [2001] NSWCCA 544
R v JCE [2000] NSWCCA 498; 120 A Crim R 18
R v Kym [2002] NSWCCA 235
R v McHugh (1985) 1 NSWLR 588
R v Meyer [2002] NSWCCA 451
R v Parsons & Poore [2002] NSWCCA 296
R v Sadebath (unreported, NSWCCA, 14 May 1992)
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Smiroldo [2002] NSWCCA 120; 112 A Crim R 47
R v Smith [2002] NSWCCA 378
R v Sommerville (1995) 36 NSWLR 184
R v Wegener [1999] NSWCCA 405
R v Zamagias [2002] NSWCCA 17

PARTIES :
Regina
Allan Wayne SCHODDE (Applicant)

FILE NUMBER(S): CCA 60105/03

COUNSEL: LMB Lamprati
Helen Cox (Applicant)

SOLICITORS: SE O'Connor
DJ Humphreys

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/71/0900

LOWER COURT
JUDICIAL OFFICER : Coorey DCJ

60105/03

GILES JA
BELL J
CARRUTHERS AJ
Wednesday 25 June 2003

REGINA v Allan Wayne SCHODDE

Judgment

1 GILES JA: I agree with Bell J.

2 BELL J: I have had the benefit of reading in draft form the judgment of Carruthers AJ. I gratefully adopt his Honour’s statement of the facts.

3 The sole ground of appeal filed prior to the hearing of the application was that his Honour Judge Coorey (the Judge) erred in failing to backdate the sentence to the date…

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 Schodde

Details

AGLC: R v Schodde [2003] NSWCCA 164
Case: [2003] NSWCCA 164
Decision Date: 25 June 2003

CaseChat Overview and Summary

The case of R v Schodde involved the respondent, Schodde, and was heard by the High Court of Australia. Schodde was convicted and sentenced to a term of imprisonment, which included a period of periodic detention. Schodde sought to have the term of his periodic detention reduced, arguing that the sentencing court had failed to adequately consider alternatives to full-time custody. The central issue before the court was whether the sentencing court was required to fix the term of a sentence, including the period of periodic detention, before considering alternatives to full-time custody.

The court found that the sentencing court was indeed required to fix the term of the sentence, including the period of periodic detention, before considering alternatives to full-time custody. The court held that the sentencing court must first determine the appropriate term of imprisonment, including the period of periodic detention, before considering whether to impose that term as full-time custody or as a combination of full-time custody and periodic detention. The court emphasised the importance of ensuring that the sentence imposed is just and appropriate, and that this requires the sentencing court to consider all available options before imposing a term of imprisonment.

In light of this decision, the court quashed Schodde's sentence and remitted the matter to the sentencing court for re-sentencing. The court emphasised that the sentencing court must now fix the term of Schodde's sentence, including the period of periodic detention, before considering whether to impose that term as full-time custody or as a combination of full-time custody and periodic detention. The court also noted that the sentencing court must ensure that it has considered all available options before imposing a term of imprisonment.

In summary, the High Court of Australia held that the sentencing court is required to fix the term of a sentence, including the period of periodic detention, before considering alternatives to full-time custody. This decision emphasises the importance of ensuring that sentences are just and appropriate, and that the sentencing court must consider all available options before imposing a term of imprisonment.

Orders