R v Schwalm - [2015] ACTSC 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Schwalm

Citation:

[2019] ACTSC 35

Hearing Date:

23 January 2019

Decision Date:

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

1. 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.
2.        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.
3.        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.
4.        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.
5.        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.
6.        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…

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: [2015] ACTSC 16
Decision Date: 23 January 2019

CaseChat Overview and Summary

The case of R v Schwalm arose from an incident of aggravated burglary, theft, and possession of property suspected of being stolen or otherwise unlawfully obtained, as well as causing damage to property not exceeding $5,000 in value. The matter was heard in the relevant Australian court. Schwalm pleaded guilty to the charges. The court was tasked with determining an appropriate sentence for the defendant, who had a significant criminal history and a history of illicit polysubstance abuse.

The court had to consider several legal issues, including the appropriate weight to be given to Schwalm’s extensive criminal history and the extent to which his illicit polysubstance abuse was a mitigating factor. The court also needed to assess the seriousness of the offence and the need for the sentence to serve as a deterrent to the defendant and others in similar circumstances.

The court delivered a comprehensive judgment, acknowledging the seriousness of the offences committed by Schwalm. It recognised the defendant's extensive criminal history and his ongoing struggle with polysubstance abuse. However, the court emphasised the importance of holding Schwalm accountable for his actions and the need for the sentence to reflect the gravity of the crimes. After weighing all the relevant factors, the court imposed a sentence that balanced the need for punishment, deterrence, and rehabilitation.

Orders