Legal Research
Cases
Schaeffer v The Queen

Schaeffer v The Queen

Case [2021] VSCA 171 18 June 2021

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0217

IAN SCHAEFFER	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST, KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 June 2021
DATE OF JUDGMENT:	18 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 171
JUDGMENT APPEALED FROM:	[2020] VCC 1502 (Judge O'Connell)

---

CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to seven charges and four related summary offences – Home invasion (intent to steal), theft, prohibited person possess firearm, prohibited person possess imitation firearm, cultivate narcotic plant, possess drug of dependence – Total effective sentence seven years three months’ imprisonment with non-parole period of five years – Whether sentencing judge failed to take into account heightened utilitarian value of guilty plea during COVID-19 pandemic – Whether sentence manifestly excessive – Appeal dismissed – Worboyes v The Queen [2021] VSCA 169 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C A Boston	Sarah Tricarico Lawyers Pty Ltd
For the Respondent	Ms K Judd QC, DPP with Mr E S Dober	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA
T FORREST JA:

The applicant pleaded guilty before a judge of the County Court to one charge of home invasion, two charges of theft, one charge of being a prohibited person in possession of a firearm, one charge of being a prohibited person in possession of an imitation firearm, one charge of cultivating a narcotic plant and one charge of possession of a drug of dependence. He also pleaded guilty to four summary charges. Following a plea presented on his behalf, he was sentenced to a total effective sentence of seven years and three months’ imprisonment with a non-parole period of five years.

The sentence was constituted as follows:

Charge on Indictment

L10368446
Offence Maximum Sentence Cumulation

1 Prohibited person possess firearm [s 5 of the Firearms Act 1996] 1200 penalty units or imprisonment for 10 years 8 months 2 months

2 Home Invasion (Intent to Steal) [s 77A of the Crimes Act 1958] 25 years’ imprisonment 6 years and 6 months BASE

3 Theft [s 74 of the Crimes Act 1958] 10 years’ imprisonment 9 months Nil

4 Theft [s 74 of the Crimes Act 1958] 10 years’ imprisonment 9 months 6 months

5 Prohibited person possess an imitation firearm [s 5AB of the Control of Weapons Act 1990] 1200 penalty units or imprisonment for 10 years 1 month Nil

6 Cultivate Narcotic Plant [s 72B of the Drugs, Poisons and Controlled Substances Act 1981] 15 years’ imprisonment 4 months 1 month

7 Possess a drug of dependence [s 73 of the Drugs, Poisons and Controlled Substances Act 1981] 400 penalty units and/or imprisonment of 1 year Fine $150 N/A

Summary Charge 3 Commit indictable offence whilst on bail [s 30B of the Bail Act 1977] 30 penalty units or imprisonment of 3 months Convicted and discharged N/A

Summary Charge 10 Possess cartridge ammunition without…

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 Schaeffer v The Queen

Details

AGLC: Schaeffer v The Queen [2021] VSCA 171
Case: [2021] VSCA 171
Decision Date: 18 June 2021

CaseChat Overview and Summary

In the matter of Schaeffer v The Queen, the appellant was convicted of multiple criminal offences, including home invasion, theft, and possession of firearms and narcotics. The appellant had pleaded guilty to these charges and four related summary offences. The court imposed a total effective sentence of seven years and three months in imprisonment, with a non-parole period of five years. The appellant appealed against the sentence, arguing that the sentencing judge failed to take into account the heightened utilitarian value of his guilty plea during the COVID-19 pandemic and that the sentence was manifestly excessive.

The legal issues before the court were whether the sentencing judge erred in failing to consider the utilitarian value of the guilty plea and whether the sentence was manifestly excessive. The court noted that while the appellant's guilty plea may have had some utilitarian value, it was not so significant as to warrant a substantial reduction in sentence. Furthermore, the court found that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the need to deter similar conduct. The court applied the principles set out in Worboyes v The Queen, which held that a sentence is manifestly excessive if it is so disproportionate to the offence that it shocks the conscience of the court.

The court dismissed the appeal, holding that the sentencing judge had not erred in failing to consider the utilitarian value of the guilty plea to the extent argued by the appellant. The court also found that the sentence was not manifestly excessive, given the seriousness of the offences and the need to deter similar conduct. The court noted that the appellant had a history of criminal behaviour and had shown no remorse for his actions. The appeal was therefore dismissed, and the original sentence was upheld.

No further orders were made by the court. The appellant's sentence of seven years and three months in imprisonment, with a non-parole period of five years, remains in place.

Orders