R v Schwenke - [2004] NSWCCA 289

CITATION: R v SCHWENKE [2004] NSWCCA 289

HEARING DATE(S): 11 August 2004

JUDGMENT DATE:
11 August 2004

JUDGMENT OF: Hodgson JA at 1; Hulme J at 2; Smart AJ at 25

DECISION: Appeal dismissed

LEGISLATION CITED: s9 Crimes (Sentencing Procedure) Act

PARTIES :
Regina
George Francis Schwenke

FILE NUMBER(S): CCA 60193/04

COUNSEL: Crown: B Knox SC
Respondent: AP Cook

SOLICITORS: Crown: S Kavanagh
Respondent: Marsdens Law Group

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3318

LOWER COURT
JUDICIAL OFFICER : Marien DCJ

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60193/04

HODGSON JA
HULME J
SMART AJ

R v George Francis SCHWENKE

Judgment

1 HODGSON JA: I agree the Crown did not identify any particular error in the remarks on sentence so that the appeal depended on the contention that the sentence was manifestly inadequate. I agree with the Crown’s submission that offences of this nature are very serious offences that should generally attract sentences of imprisonment, although it may sometimes be appropriate to suspend the sentence. However, substantially for the reasons given by Hulme J, I am not satisfied that the sentence imposed in this case was so inadequate as to justify the upholding of a Crown Appeal.

2 HULME J: This is a Crown appeal against the imposition under s9 of the Crimes (Sentencing Procedure) Act of a 3 year good behaviour bond in respect of an offence of having sexual intercourse with a female aged 13 years. The offence arises pursuant to s66C of the Crimes Act and carries a maximum penalty of 16 years imprisonment.

3 It is convenient to refer to the female as “the complainant” although it was not she who complained at any time. The Respondent, then aged 22, was a friend of the complainant’s brother and was staying with their family at the time. While staying there, the Respondent and the complainant formed a boyfriend/girlfriend relationship.

4 According to the complainant, on the night of the offence the Respondent went to sleep in the lounge room watching television. She woke him up, walked him into his room, they started kissing, and then the Respondent asked if it would be alright if he had made the next move. She said “what do you mean by that” and he replied words to the effect “do you mind if I sleep with you”. She agreed. During the activity which followed, she said if hurt and asked him to stop. She said that he did so straight away.

5 At about that time the complainant became pregnant although she and the Respondent conceded intercourse occurred also on another two occasions, the dates of which are unclear. It is, accordingly, impossible to conclude that the particular act of intercourse which was the subject of the charge led directly to the pregnancy.

6 The Respondent gave evidence in the sentencing proceeding. Based on observations during that time and reports which were before him, his Honour found that the Respondent suffered “some cognitive and intellectual underdevelopment”. His Honour also…

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 Schwenke

Details

AGLC: R v Schwenke [2004] NSWCCA 289
Case: [2004] NSWCCA 289
Decision Date: 11 August 2004

CaseChat Overview and Summary

The case of R v Schwenke involved an appeal by the Crown against the sentence imposed on George Francis Schwenke by the District Court. Schwenke was convicted of having sexual intercourse with a 13-year-old girl, an offence under section 66C of the Crimes Act 1900. The Crown appealed the sentence of a 3-year good behaviour bond imposed by Judge Marien, arguing that it was manifestly inadequate. The appeal was heard by Hodgson JA, Hulme J, and Smart AJ of the New South Wales Court of Criminal Appeal.

The primary legal issues before the Court were whether the sentence imposed by the District Court was manifestly inadequate and whether the Judge had erred in considering certain mitigating factors, particularly the respondent’s intellectual and cognitive underdevelopment and lack of maturity. The Crown argued that the sentence did not appropriately reflect the seriousness of the offence, the breach of trust, and the absence of remorse shown by Schwenke. The Court had to determine if the sentence fell outside the range of appropriate penalties for the offence under consideration of all relevant factors.

In dismissing the appeal, the Court found that the sentence imposed by Judge Marien, while lenient, was within the legitimate exercise of his discretion. The Court acknowledged that offences under section 66C are very serious and generally attract custodial sentences, but noted that sentencing remains a discretionary exercise. The Court found that the District Court had appropriately considered Schwenke’s cognitive and intellectual underdevelopment, his troubled background, and his efforts towards rehabilitation, including employment and alcohol counselling. The judges concluded that the sentence, while lenient, was not so inadequate as to warrant an appeal. The appeal was unanimously dismissed by all three judges.

The final orders of the Court were that the appeal be dismissed, and the original sentence of a 3-year good behaviour bond imposed by the District Court be upheld.

Orders