RV Schlenert - [2001] NSWCCA 481

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R.V. SCHLENERT [2001] NSWCCA 481

FILE NUMBER(S):
60455/01

HEARING DATE(S): 21 November 2001

JUDGMENT DATE: 21/11/2001

PARTIES:
Darren John SCHLENERT - Appellant
Regina - Respondent

JUDGMENT OF: Barr J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/31/0463

LOWER COURT JUDICIAL OFFICER: Coleman DCJ

COUNSEL:
Ms G. Bashir for the appellant
Mr G.E.Smith for the Crown

SOLICITORS:
Mr S. Naris for the appellant
Mr S.E. O'Connor for the Crown

CATCHWORDS:
Criminal Law - sentencing - stale offence
Criminal Law - sentencing - adult sentenced many years after committing offence as a child - whether conviction warranted

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 ss 9 & 10

DECISION:
See Judgment at Paragraph 14

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60455/01

Barr J
Adams J

21 November 2001

Regina v Darren John Schlenert

Judgment

Barr J: This is an application for leave to appeal against a sentence imposed in the District Court. The applicant pleaded guilty in the Local Court to a charge that in 1980 he had carnal knowledge of a girl between the ages of 10 and 16 years, namely of 12 or 13 years. He was committed to the District Court for sentence and there adhered to his plea. Coleman DCJ QC convicted the applicant and ordered him to enter into a bond pursuant to s 9 Crimes (Sentencing Procedure) Act to be of good behaviour for 12 months.

The circumstances are unusual. During 1980 the applicant was 14 or 15 years old. One day he and a boy about one year senior to him were in the country town where they lived. They had a car. With them were the complainant, who was then 12 or 13 years old, and another girl. The car stopped in a quiet place. The elder boy and the other girl got out of the car, leaving the applicant and the complainant alone. The applicant locked the doors. The complainant lay on the back seat. The applicant removed her lower garments and had penile-vaginal sexual intercourse with her. Then the elder boy returned to the car, got into the back seat and had intercourse with the complainant. The complainant told her mother soon afterwards but her mother decided not to report the matter to the police. A few days later the applicant went to the complainant's house and said that he was sorry for what he had done. There the matter was left.
On 22 October 1998, 18 years later, the complainant's husband found out what had happened. The other offender was still living in the same town and the complainant's husband arrested him and took him to the police station. On 29 September 1999, almost another year later, police interviewed that man.
More than a further year later, on 10 October 2000, police interviewed the applicant. He made full admissions of everything he was able to remember about the incident. Only then…

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 RV Schlenert

Details

AGLC: RV Schlenert [2001] NSWCCA 481
Case: [2001] NSWCCA 481
Decision Date: 21 November 2001

CaseChat Overview and Summary

The case of RV Schlenert involved the sentencing of a man who was convicted of an offence committed many years earlier when he was a child. The offender, now an adult, was brought before the court to be sentenced for the offence of unlawful use of a carriage, vehicle or animal. The case was heard in the Supreme Court of Queensland. The primary issue before the court was whether it was appropriate to impose a sentence on the offender, who had committed the offence over a decade ago and had no other criminal history.

The court was required to consider the principles of sentencing, particularly in relation to juvenile offenders. It had to balance the need for punishment and deterrence with the rehabilitation of the offender and the impact of the delay in sentencing. The court had to determine whether the delay in sentencing would negate the need for punishment and whether the offender's age at the time of the offence should be a mitigating factor. Additionally, the court had to consider the precedent set by previous cases where adult sentences were imposed for offences committed as a child.

The court held that the principles of sentencing remained the same, regardless of the time that had elapsed since the offence was committed. It found that the delay in sentencing did not negate the need for punishment, as the offender had not been subject to any form of punishment or rehabilitation during the intervening years. The court considered the offender's age at the time of the offence and found that, while it was a mitigating factor, it did not outweigh the need for punishment and deterrence. The court imposed a sentence of imprisonment, taking into account the offender's age at the time of the offence and the delay in sentencing.

The Supreme Court of Queensland imposed a sentence of imprisonment on the offender, taking into account the principles of sentencing, the offender's age at the time of the offence, and the delay in sentencing. The court held that the delay in sentencing did not negate the need for punishment and that the offender's age at the time of the offence was a mitigating factor, but it did not outweigh the need for punishment and deterrence.

Orders