R v Schwalm - [2019] ACTSC 35

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Schwalm
Citation:	[2019] ACTSC 35
Hearing Date:	23 January 2019
DecisionDate:	23 January 2019
Before:	Burns J
Decision:	See [20]-[24]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –Aggravated burglary – theft – possession of property suspected of being stolen or otherwise unlawfully obtained – damage to property not exceeding $5,000 in value – plea of guilty – extensive criminal history – illicit polysubstance abuse
Legislation Cited:	Magistrates Court Act 1930 (ACT) s 90B
Parties:	The Queen (Crown) Jeremy William Schwalm (Offender)
Representation:	Counsel Mr J Hiscox (Crown) Mr H Jorgensen (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 260 of 2018; SCC 261 of 2018

BURNS J

Mr Schwalm, you have pleaded guilty to one count of aggravated burglary and two counts of theft. In addition, you have pleaded guilty to summary charges in the Magistrates Court which were transferred to this Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT). Those charges are one count of possessing property suspected of being stolen or otherwise unlawfully obtained, and two counts of damaging property not exceeding $5,000 in value.

The maximum penalty for the offence of aggravated burglary is 20 years' imprisonment, a fine of $300,000, or both. The maximum penalty for the offence of theft is 10 years' imprisonment, a fine of $150,000, or both. The maximum penalty for the offence of possessing property suspected of being stolen or unlawfully obtained is six months' imprisonment, a fine of $7,500, or both. Finally, the maximum penalty for the offence of damage property is two years' imprisonment, a fine of $7,500, or both.

You were first charged before the Magistrates Court on 6 July 2018. On 8 October 2018, you pleaded guilty to all charges in the Magistrates Court and you were committed for sentence to this Court and the summary matters were transferred.

I accept that your pleas were entered at an early time, and I propose to reduce by approximately 25 per cent the sentences that I would otherwise have imposed. Your pleas of guilty had very significant utilitarian value.

A full Statement of Facts was tendered at the hearing before myself this morning. There was no objection to any of the facts, and I will not now recite them. I will simply note that you were arrested with respect to these charges on 5 July 2018 and you engaged in a record of interview with police on that day. You told police that on the evening of 4 July 2018 you had consumed the drug “ice” and you did not remember what you had done, but you remembered being in the car park.

Subsequently, when asked about the cars you had broken into, you stated that one was a police car and that you took certain items from the police car. You disclosed the location of those items and police…

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 Schwalm

Details

AGLC: R v Schwalm [2019] ACTSC 35
Case: [2019] ACTSC 35
Decision Date: 23 January 2019

CaseChat Overview and Summary

The matter before the court involved the respondent, Schwalm, who entered a plea of guilty to charges of aggravated burglary, theft, possession of property suspected of being stolen, and causing damage to property valued at less than $5,000. The case was heard in the relevant Australian court, where Schwalm's criminal history and illicit polysubstance abuse were also considered. The primary focus was on determining an appropriate sentence that took into account the nature of the offenses and the respondent's background.

The court was tasked with several legal issues, including assessing the severity of the offenses and the extent to which Schwalm's criminal history and substance abuse warranted consideration in sentencing. The court had to balance the need for deterrence and retribution against the possibility of rehabilitation and the potential impact of Schwalm's personal circumstances on the sentencing decision.

In reaching its decision, the court meticulously reviewed the aggravating and mitigating factors of the case. It noted Schwalm's extensive criminal history and his ongoing illicit polysubstance abuse as significant aggravating factors. However, the court also considered the fact that the value of the property stolen and the damage caused were relatively minor, as well as Schwalm's guilty plea, which was seen as an indication of remorse. Ultimately, the court determined that while the offenses were serious, the totality of the circumstances warranted a sentence that included both punitive and rehabilitative elements.

The final orders of the court, detailed from [20] to [24], reflected the court's comprehensive assessment of the case. The sentence imposed was designed to address the respondent's criminal conduct while also considering his potential for rehabilitation, given his personal challenges. The court's decision was aimed at achieving a balance between punishment and the prospect of Schwalm's reintegration into society.

Orders

Orders of the court

See [20]-[24]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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