Schembri v The Queen - [2022] VSCA 40

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0057

JASON SCHEMBRI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BEACH and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 February 2022
DATE OF JUDGMENT:	30 March 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 40
JUDGMENT APPEALED FROM:	[2021] VCC 464 (Judge Murphy)

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CRIMINAL LAW – Appeal – Conviction – Aggravated burglary (charge 1) – Whether applicant was a co-tenant and not a trespasser – Whether judge gave erroneous direction about termination of implied co-tenancy agreement – No co-tenancy agreement on evidence – No reversal of onus of proof – No evidence that applicant entered through front door – Leave to appeal refused – Residential Tenancies Act 1997 ss 217, 220.

CRIMINAL LAW – Appeal – Sentence – Whether individual sentence of 4 years 6 months’ imprisonment on charge 1, total effective sentence of same length and non-parole period of 2 years and 3 months manifestly excessive – Serious offending – Applicant carried axe and baseball bat, knew confrontation was likely – No manifest excess – No specific error – Leave to appeal refused – Brown v The Queen [2021] VSCA 204 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A J Bates	Bayside Solicitors
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
BEACH JA
SIFRIS JA:

Introduction

On 29 March 2021, following a six day trial in the County Court before Judge Murphy, the applicant was found guilty by a jury of one charge of aggravated burglary, two charges of criminal damage and one charge of threat to damage property.[1]
[1]The applicant was acquitted of intentionally causing injury and the alternative, recklessly causing injury.

On 22 April 2021, the applicant was sentenced as follows:[2]
[2]DPP v Schembri [2021] VCC 464 (‘Reasons for Sentence’).

Charge Offence Max penalty Sentence Cumulation

1. Aggravated burglary 25 years 4 years 6 months Base

4. Criminal damage 10 years 1 month –

5. Threat to damage property 5 years 6 months –

6. Criminal damage 10 years 1 months –

Total Effective Sentence: 4 years and 6 months

Non-Parole Period: 2 years and 3 months

Pre-Sentence Detention Declared: 243 days

The applicant seeks leave to appeal against his conviction on the charge of aggravated burglary and also seeks leave to appeal against sentence.

For the reasons that follow, leave to appeal against both conviction and sentence is refused.

Background[3]

[3]This summary is primarily taken from the Reasons for Sentence and the parties’ written cases.

The offending occurred at a premises in Carrum Downs (the ‘premises’) on 21 May 2016.

In mid-May 2014, the complainant, KT, signed a Residential Tenancy Agreement (the ‘Original Agreement’) to lease the premises for a period of two years. The rental was $390 per week. KT paid the bond in the sum of $3,380. Around that time, the applicant had commenced a relationship with KT. Sometime in 2014, he commenced living with KT at…

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 Schembri v The Queen

Details

AGLC: Schembri v The Queen [2022] VSCA 40
Case: [2022] VSCA 40
Decision Date: 30 March 2022

CaseChat Overview and Summary

The applicant, Schembri, sought leave to appeal his conviction and sentence for aggravated burglary, as well as other related charges. The matter was heard in the Court of Appeal of the Supreme Court of Victoria. Schembri had been convicted of aggravated burglary, along with other charges, following an incident where he, along with others, confronted the occupants of a residence, armed with various weapons including an axe and a baseball bat. The appeal challenged the sufficiency of the evidence to establish that Schembri was a trespasser at the time of the offence, as well as the appropriateness of his sentence.

The court was required to determine whether the evidence supported a finding that Schembri was not a co-tenant of the property, and thus a trespasser, at the time of the incident. Additionally, the court needed to decide if the trial judge had provided an erroneous direction regarding the termination of any implied co-tenancy agreement. The appeal also challenged the severity of the sentence imposed, arguing it was manifestly excessive.

The court found that there was no evidence of an implied co-tenancy agreement, and therefore, Schembri was a trespasser. It was also determined that the judge did not give an erroneous direction regarding the termination of any such agreement. The court held that the onus of proof was not reversed, and there was insufficient evidence to conclude that Schembri entered through the front door. Regarding the sentence, the court found that it was not manifestly excessive, given the seriousness of the offence and Schembri's involvement. The appeal was dismissed, and leave to appeal was refused.

No further orders were made by the court.

Orders