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Schembri v The Queen

Schembri v The Queen

Case [2020] VSCA 217 1 September 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0227

NATHAN SCHEMBRI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 August 2020
DATE OF JUDGMENT:	1 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 217
JUDGMENT APPEALED FROM:	[2019] VCC 1774 (Judge Hampel)

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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 (3 composite charges) – Drug trafficking (6 charges) – Total effective sentence 5 years’ imprisonment, non-parole period 2 years, 6 months – Sexual penetration sentences from 3 years to 3 years 6 months – Whether manifestly excessive – Difference in age and maturity – Applicant was 18, victim 13 – Distinct episodes – Persistent offending – Applicant aware sexual activity unlawful – Whether sufficient weight given to guilty pleas, prior good character, youth, good prospects of rehabilitation, remorse and delay – Sentence within range – Leave refused – Clarkson v The Queen (2011) 32 VR 361; [2011] VSCA 157 considered.

CRIMINAL LAW – Trial – Procedure – Pleading – Indictments - Charging practices – Use of ‘composite charges’ deprecated – Holland (a Pseudonym) v The Queen [2018] VSCA 241 followed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr D Swan	Victoria Legal Aid
For the Respondent:	Mr P L Bourke	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P

NIALL JA:

The applicant, who applies for leave to appeal against sentence, pleaded guilty in the County Court to charges contained on two indictments. The first indictment contained six charges of trafficking in various drugs of dependence between 21 October 2015 and 19 July 2016. Messages on the applicant’s phone showed widespread trafficking activity in MDMA, GHB, methylamphetamine, ketamine, cocaine and amphetamine over that period, although it was not possible to quantify the total amount of any of the drugs he trafficked. The judge observed that it was a regular, continuing business, in which the applicant was actively involved, and that the bulk of the applicant’s business seemed to be in trafficking MDMA, followed by, in descending scale, methylamphetamine and amphetamine, with lesser quantities of GHB, ketamine and then cocaine.[1]
[1]DPP v Schembri [2019] VCC 1774, [20] (‘Reasons’).

The second indictment contained three charges of sexual penetration of a child under 16 years of age. Those charges were committed against a young girl who was 13 at the time of the offending.[2] The applicant was then 18 years of age. They occurred on the evening of 20 December 2015 at the applicant’s home, where he was living with his mother.
[2]K was born on 22 December 2001 and turned 14 the day after the offending.

The applicant was sentenced as set out in the following table.

The first indictment

Charge

Offence

Maximum

Sentence

Cumulation

1. Traffic a drug of dependence (MDMA)[3] 15 years 18 months (aggregate) 12 months cumulation upon the sentence on the second indictment

2. Traffic a drug of dependence (GHB)

3. Traffic a drug of dependence (methylamphetamine)

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 [2020] VSCA 217
Case: [2020] VSCA 217
Decision Date: 1 September 2020

CaseChat Overview and Summary

In Schembri v The Queen, the appellant was convicted of multiple charges including sexual penetration of a child under 16 and drug trafficking. The appellant was sentenced to a total effective term of five years' imprisonment, with a non-parole period of two years and six months. The court was tasked with determining whether this sentence was manifestly excessive. The appellant, who was 18 years old at the time, was convicted of engaging in sexual activity with a 13-year-old victim. The court was required to consider various factors in sentencing, including the difference in age and maturity between the appellant and the victim, the distinct episodes of offending, the persistent nature of the offences, and whether sufficient weight had been given to the appellant's guilty pleas, prior good character, youth, good prospects of rehabilitation, remorse and the delay in bringing the case to trial.

The court examined whether the sentence imposed was within the appropriate range, taking into account the severity of the offences and the need for general deterrence. The court noted that the appellant was aware that the sexual activity was unlawful, and that the sentences for the sexual penetration charges ranged from three years to three years and six months. The court also considered the appellant's age, prospects of rehabilitation, and remorse. The court concluded that the sentence was within the appropriate range and that sufficient weight had been given to the mitigating factors. The court also noted that the use of composite charges was deprecated, in line with the decision in Holland (a Pseudonym) v The Queen [2018] VSCA 241. The court refused leave to appeal.

The court's decision in Schembri v The Queen highlights the importance of considering all relevant factors in sentencing, including the age and maturity of the offender, the distinct episodes of offending, and the need for general deterrence. The court also emphasised the need for appropriate charging practices, including the avoidance of composite charges. The final orders of the court were that the appeal against sentence was dismissed, and leave to appeal was refused.

Orders