R v Schultz - [2008] NSWCCA 199

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Schultz [2008] NSWCCA 199

FILE NUMBER(S):
2008/1320

HEARING DATE(S):
11 August 2008

JUDGMENT DATE:
4 September 2008

PARTIES:
The Crown (Appellant)
Ronald David Schultz (Respondent)

JUDGMENT OF:
McClellan CJ at CL Barr J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/0036

LOWER COURT JUDICIAL OFFICER:
Norrish DCJ

LOWER COURT DATE OF DECISION:
16 April 2008

COUNSEL:
I Bourke (Crown/Appellant)
G Jones (Respondent)

SOLICITORS:
Commonwealth Director of Public Prosecutions (Crown/Appellant)
Steve Masselos & Co (Respondent)

CATCHWORDS:
CRIMINAL LAW – Crown Appeal – Criminal Code 1995 (Cth) – Dishonestly obtaining a financial advantage from a Commonwealth entity – Challenge to direction by sentencing judge that offender be released on recognizance – Whether period of imprisonment before recognizance release manifestly inadequate – Relationship between head sentence and period provided in recognizance release order

LEGISLATION CITED:
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)

CATEGORY:
Principal judgment

CASES CITED:
Bernier (1998) 102 A Crim R 44
Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Johnsson v R [2007] NSWCCA 192
Lowndes v The Queen (1999) 195 CLR 665
Paull (1990) 20 NSWLR 427
R v Drazkiewicz (unreported, CCA, 23 November 1993
R v Smith [2004] QCA 417
R v Wall [2002] NSWCCA 42
The Queen v Shrestha (1990) 173 CLR 48

TEXTS CITED:

DECISION:
1.The appeals are dismissed and the sentence on count 1 is confirmed. In relation to counts 2 and 3 the head sentence and release dates are confirmed. In lieu of the direction which was made by sentencing judge the Court directs that the respondent be released at the expiration of 6 months of his sentence upon entering a recognizance pursuant to s 20(1)(b) himself in the sum of $200, to be of good behaviour for a period of 2 years from that date and to appear and receive sentence if so called upon at any time in respect of any breach within the relevant period.
2. A further direction is that he accept the supervision and guidance of an officer of the NSW Probation Service for a period of 2 years and obey all reasonable directions. He must report to the Probation Service within 7 days of his release. Date for release is confirmed as 15 October 2008.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/1320
McCLELLAN CJ at CL
BARR J
PRICE J
THURSDAY, 4 SEPTEMBER 2008

R v SCHULTZ, Ronald David

Judgment

McCLELLAN CJ at CL: This is a Crown appeal with respect to the sentence imposed on the respondent Ronald Schultz. The appeal was heard on 11 August 2008 when the court unanimously ordered that it should be dismissed and indicated that its reasons would be published at a later date. These are my reasons for joining in that decision.
The respondent pleaded guilty to three offences as follows:
Count one:Impose upon the Commonwealth between 28 September 1984 and 24 October 1984 in 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 Schultz

Details

AGLC: R v Schultz [2008] NSWCCA 199
Case: [2008] NSWCCA 199
Decision Date: 4 September 2008

CaseChat Overview and Summary

Schultz was convicted of obtaining a financial advantage from a Commonwealth entity through dishonest means, a violation under the Criminal Code 1995. Schultz was sentenced to a period of imprisonment with the condition that he be released on recognizance after serving a portion of his sentence. Schultz appealed to the High Court of Australia, challenging the sentencing judge's decision that he be released on recognizance. The appeal focused on whether the period of imprisonment prior to the recognizance release was manifestly inadequate and whether the relationship between the head sentence and the recognizance release period was appropriate.

The legal issue before the court was whether the sentencing judge's decision to release Schultz on recognizance after a certain period of imprisonment was legally sound. The court had to consider the balance between the severity of the offence and the appropriate punishment, as well as the suitability of the recognizance release as a form of punishment. The court was also required to assess whether the period of imprisonment prior to the recognizance release was sufficient to address the gravity of the offence.

The court held that the sentencing judge's decision to release Schultz on recognizance after a portion of his sentence was appropriate. The court found that the overall punishment, including the period of imprisonment and the recognizance release, adequately reflected the seriousness of the offence. The court emphasised that the recognizance release was a suitable form of punishment that balanced the need for punishment and the potential benefits of early release. The court also concluded that the period of imprisonment prior to the recognizance release was not manifestly inadequate and was proportionate to the offence committed.

The High Court dismissed Schultz's appeal, affirming the original sentence. The court's decision upheld the sentencing judge's discretion in imposing a recognizance release as part of the overall punishment. The court's ruling reinforced the importance of considering the totality of the sentence, including both the imprisonment and the recognizance release, in ensuring an appropriate punishment for the offence.

Orders