R v Schulz; Ex parte

Case [2023] QCA 150

SUPREME COURT OF QUEENSLAND

CITATION:

R v Schulz; Ex parte Director of Public Prosecutions (Cth) [2023] QCA 150

PARTIES:

R
v
SCHULZ, Brendan Curt
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 332 of 2021
SC No 10 of 2021
SC No 13 of 2021
SC No 14 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Director of Public Prosecutions (Cth)

ORIGINATING COURT:

Supreme Court at Mount Isa – Date of Sentence: 23 November 2021 (Henry J)

DELIVERED ON:

28 July 2023

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2022

JUDGES:

McMurdo and Bond and Dalton JJA

ORDERS:

1.   Appeal allowed.

2.   The sentences imposed on 23 November 2021 are set aside.

3.   The respondent is resentenced as identified in the table below, convictions recorded in each case:

Count

Sentence
State indictment
Count 1 15 months’ imprisonment to commence on 23 November 2021
Count 2 18 months’ imprisonment to commence on 23 November 2021
Count 3 2 years’ imprisonment to commence on 23 November 2021
Count 4 12 months’ imprisonment to commence on 23 November 2021
The imprisonment for State counts 1 to 4 is to be served concurrently.
State summary charges
Charges 1 and 2 Convicted and not further punished
Commonwealth indictment
Count 8 9 years’ imprisonment to commence on 24 November 2022
Count 21 6 years’ imprisonment to commence on 24 November 2022
Count 12 5 years’ imprisonment to commence on 24 November 2022
Count 10 4 years’ imprisonment to commence on 24 November 2022
Count 24 7 years’ imprisonment to commence on 24 November 2026
Count 25 2 years’ imprisonment to commence on 24 November 2026
Counts 11, 14 and 17 5 years’ imprisonment to commence on 24 May 2029
Count 9, 19, 20 and 28 4 years’ imprisonment to commence on 24 May 2029
Counts 1, 2, 4, 5, 6,7, 13, 22, 23 and 26 3 years’ imprisonment to commence on 24 May 2029
Count 18 2 years’ imprisonment to commence on 24 May 2029
Count 29 3 years’ imprisonment to commence on 24 May 2029
Counts 15, 16 and 27 12 months’ imprisonment to commence on 24 November 2033
A single non-parole period for the federal offences of 6½ years is fixed to commence on 24 November 2022.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –  APPEAL AGAINST SENTENCE – APPEALS BY CROWN – PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS – where the respondent was convicted in the Supreme Court of Queensland on his own plea of guilty and sentenced in respect of 28 counts of various types of child sex offending against the Criminal Code (Cth) and four counts of offending against the Criminal Code (Qld) – where the respondent was sentenced to a total effective sentence of 9 years’ imprisonment with a non-parole period of 4½ years – where the appellant appealed against the sentence on the ground that the individual sentences, the total effective sentence and the non-parole period were manifestly inadequate…

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Details
AGLC
R v Schulz; Ex parte [2023] QCA 150
Case
[2023] QCA 150
Decision Date

CaseChat Overview and Summary

The appellant has appealed against the sentence imposed on the respondent, who was convicted on his own plea of guilty in the Supreme Court of Queensland on 23 November 2021. The respondent was convicted on 28 counts of various types of child sex offending against the Criminal Code (Cth) and four counts of offending against the Criminal Code (Qld). The Court of Appeal was required to determine whether the appellant could demonstrate error in the exercise of the sentencing discretion of the kind identified in House v The King, and whether the appellant could persuade the Court not to exercise its residual discretion not to interfere with the sentence imposed below.

The Court of Appeal considered the principles identified in Harrison and the authorities referred to in CMB v Attorney-General (NSW). The Court noted that once a finding of manifest inadequacy is made, an appellate court must consider whether or not to interfere with the sentence, and has a discretion whether or not to do so. The principles governing the exercise of the appellate court’s discretion to grant permission to appeal in a Crown appeal against sentence were recently discussed by Doyle JA in the South Australia Court of Appeal. The Court found that the sentences imposed below were manifestly inadequate and that the appeal fell within the rare and exceptional cases where allowing the appeal is desirable in order to address an error of principle, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, or to establish and maintain adequate standards of sentence.

The Court of Appeal allowed the appeal, set aside the sentences imposed on 23 November 2021 and resentenced the respondent as identified in the table below, convictions recorded in each case. The Court fixed a single non-parole period for the federal offences at 6½ years, commencing on the commencement date of the first sentence imposed for a federal offence, namely 24 November 2022. The imprisonment for State counts 1 to 4 is to be served concurrently.

Orders

Orders of the court

1. Appeal allowed.

2. The sentences imposed on 23 November 2021 are set aside.

3. The respondent is resentenced as identified in the table below, convictions recorded in each case:

Count

Sentence

State indictment

Count 1

15 months’ imprisonment to commence on 23 November 2021

Count 2

18 months’ imprisonment to commence on 23 November 2021

Count 3

2 years’ imprisonment to commence on 23 November 2021

Count 4

12 months’ imprisonment to commence on 23 November 2021

The imprisonment for State counts 1 to 4 is to be served concurrently.

State summary charges

Charges 1 and 2

Convicted and not further punished

Commonwealth indictment

Count 8

9 years’ imprisonment to commence on 24 November 2022

Count 21

6 years’ imprisonment to commence on 24 November 2022

Count 12

5 years’ imprisonment to commence on 24 November 2022

Count 10

4 years’ imprisonment to commence on 24 November 2022

Count 24

7 years’ imprisonment to commence on 24 November 2026

Count 25

2 years’ imprisonment to commence on 24 November 2026

Counts 11, 14 and 17

5 years’ imprisonment to commence on 24 May 2029

Count 9, 19, 20 and 28

4 years’ imprisonment to commence on 24 May 2029

Counts 1, 2, 4, 5, 6,7, 13, 22, 23 and 26

3 years’ imprisonment to commence on 24 May 2029

Count 18

2 years’ imprisonment to commence on 24 May 2029

Count 29

3 years’ imprisonment to commence on 24 May 2029

Counts 15, 16 and 27

12 months’ imprisonment to commence on 24 November 2033

A single non-parole period for the federal offences of 6½ years is fixed to commence on 24 November 2022.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Pursuant to s 19AB, the Court must fix a single non-parole period for the federal offences. Having regard to s 19AJ of the Crimes Act, the Court is not authorised to fix a single non-parole period in respect both of federal sentences of imprisonment and State sentences of imprisonment. Further, a non-parole period for one or more federal offences cannot be fixed to commence earlier than the commencement date of the head sentence(s).[39] Having regard to the relevant considerations and applying the principles identified in Harrison, I would fix the non-parole period for the federal offences at 6½ years, commencing on the commencement date of the first sentence imposed for a federal offence, namely 24 November 2022. Fixing that non-parole period for the federal offences will give rise to an aggregate effective non-parole period of 7½ years.[39]R v TW (No 2) [2014] ACTCA 37.Conclusion I would make the following orders:(a)Appeal allowed.(b)The sentences imposed on 23 November 2021 are set aside.(c)The respondent is resentenced as identified in the table below, convictions recorded in each case: DALTON JA: I agree with the orders proposed by Bond JA and with his reasons. I would draw attention to two particular passages in CMB v Attorney-General (NSW).[40]All the judges in that case commented on the use of the term “residual discretion”. French CJ and Gageler J said:“The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised.” – [33].[40](2015) 256 CLR 346. Kiefel, Bell and Keane JJ said:“The law reposes a wide discretion in the sentencing judge as to the determination of the appropriate sentence for the offender and the offence (61). Appeals against sentence, whether by the offender or the prosecution, require demonstration of error in one or more of the respects identified in House v The King (62). Where error of that kind is established in an appeal by the offender, it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh (63). Where error of that kind is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient (64). This is sometimes described as ‘the residual discretion’. As French CJ and Gageler J explain (65), the discretion is residual only in that its exercise does not fall to be considered unless House error is established.” – [54]. The linguistic label “residual discretion” leads to the type of thinking which was found to be erroneous in CMB. That is, it is supposed that once a finding of manifest inadequacy is made, an appellate court will resentence the offender unless the offender shows a reason otherwise. As explained in CMB, once error has been demonstrated (including the House v The King error of manifest inadequacy), an appellate court must consider whether or not to interfere with the sentence. It has a discretion whether or not to do so, and there are well-established considerations to take into account. These matters were recently discussed by Doyle JA in the South Australia Court of Appeal:“68.Having formed the view that the sentence imposed was manifestly inadequate, it remains to determine whether this is an appropriate case in which to grant permission to appeal. The principles governing the exercise of the appellate court’s discretion to grant permission to appeal in a Crown appeal against sentence are well known and have been considered in a number of decisions of this Court.69.In short, manifest inadequacy in the sentence imposed below does not, of itself, justify permission to appeal. The circumstances in which permission to appeal will be granted on a Crown appeal are often said to be confined to rare and exceptional cases.[41] The rationale for confining permission to such cases is the concern with double jeopardy; that is, the concern not to unnecessarily subject a defendant to the distress and anxiety of being twice vexed as a result of facing resentencing by an appeal court.[42]70.The rare and exceptional case is one where allowing the appeal is desirable in order to address an error of principle, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, or to establish and maintain adequate standards of sentence. It also extends to correcting a sentence which is so inadequate that it bespeaks error of principle, or would undermine public confidence in the administration of justice.[43]71.The phrase ‘rare and exceptional’ does not direct attention to the number or proportion of Crown appeals in which the appellate court’s intervention might be appropriate, for these are matters which depend upon the sentencing practices of first instances judges, and the number and nature of the appeals brought by the Director. Rather, it requires a qualitative assessment. It directs attention to the nature of the error that is required to justify intervention. In this way, it is intended to distinguish the circumstances in which it might be appropriate to intervene to correct a manifestly inadequate sentence in a Crown appeal from the circumstances in which it might be appropriate to intervene to correct a manifestly excessive sentence in a defence appeal.72.The line between a sentence which is ‘merely’ manifestly inadequate, and a sentence which is so far below the appropriate standard as to warrant a grant of permission in a Crown appeal is not a bright one. It involves questions of degree,[44] and, in a case such as the present, requires a balancing of the public interest in maintaining appropriate sentencing standards against the hardship to a defendant associated with being twice vexed.[45]”[46][41]Everett v The Queen (1994) 181 CLR 295 at 299-300 (Brennan, Deane, Dawson & Gaudron JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [8]-[21] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [1]-[2] (French CJ, Crennan and Kiefel JJ); Cumberland v The Queen (2020) 94 ALJR 656 at [4]-[6], [33] (Bell, Gageler and Nettle JJ).[42]Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at [14] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).[43]R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ); R v Nemer (2003) 87 SASR 168 at [23]‑[27] (Doyle CJ); R v Harkin (2011) 109 SASR 334 at [19] (Gray & Sulan JJ), [77] (White J); R v Buttigieg (2020) 352 FLR 170; [2020] SASCFC 38 at [39] (Lovell J, Kourakis CJ and Nicholson J agreeing); R v McIntyre (2020) 138 SASR 17 at [90]-[92] (Doyle J, Stanley and Hughes JJ agreeing); R v Jacques [2021] SASCA 94 at [29] (Kourakis CJ, Lovell and Bleby JJA).[44]R v Nemer (2003) 87 SASR 168 at [27] (Doyle CJ).[45]R v Harkin (2011) 109 SASR 334 at [19] (Gray & Sulan JJ).[46]R v Yaroslavceff [2022] SASCA 123, (original footnotes included but re-numbered). Note that unlike South Australia, there is no requirement for the Attorney to seek leave (or permission) to appeal a sentence – s 669A Criminal Code (Qld).

Ratio Decidendi

Legal Principle Established

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