Schneider v The Queen

[2019] NSWCCA 292

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Schneider v R [2019] NSWCCA 292
Hearing dates:	27 November 2019
Decision date:	16 December 2019
Before:	Hoeben CJ at CL at [1] R A Hulme at [2] Button J at [3]
Decision:	Extension of time to give notice of application for leave to appeal against sentence is refused
Catchwords:	CRIMINAL LAW – Application for extension of time – Notice of application for leave to appeal against sentence – Obtaining a financial advantage by deception – Quantum over $1.4 million – Self-represented applicant – Newborn grandchild with difficult medical conditions – Recently discovered psychological conditions of son – Whether sentence manifestly excessive – Grounds doomed to failure – Necessary extension refused
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited:	Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
Category:	Principal judgment
Parties:	Jodi Louise Schneider (Applicant) Regina (Respondent)
Representation:	Counsel: Self-represented (Applicant) D Patch (Respondent)   Solicitors: Solicitor for the Public Prosecutions (Respondent)
File Number(s):	2017/248136
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 7 September 2018 Before: Ellis SC DCJ File Number(s): 2017/248136

Judgment

1. HOEBEN CJ AT CL: I agree with Button J and the order which he proposes.

2. R A HULME J: I agree with Button J.

3. BUTTON J:

Introduction

4. This is an application for an extension of time to give notice of an application for leave to appeal by Ms Jodie Louise Schneider (the applicant) against a sentence imposed by Ellis SC DCJ in the District Court at Newcastle on 7 September 2018. That is an aggregate head sentence of imprisonment for 5 years 6 months to date from 7 September 2018 and expire on 6 March 2024, with an aggregate non-parole period of 3 years to expire on 6 September 2021. The aggregate sentence was imposed for two counts of obtaining a financial advantage by deception. The total amount of money involved was well over $1.4 million.

5. In my opinion, the application for an extension of time should be refused, not because of any chronological or logistical difficulty, but simply because the grounds of appeal are doomed to failure. In order to give efficacy to my proposed order, I shall be briefer in my analysis than I would be if I believed that leave to appeal should be granted.

Objective and subjective features

6. The following short summary is largely derived from the remarks on sentence of the learned sentencing judge, though I have also had reference to all of the written and oral evidence in the proceedings on sentence.

7. Objectively, the applicant was employed at a freight distribution company for many years as an accounts clerk in Newcastle. She was in a position of trust and some responsibility.

8. Over a period of seven years between February 2010 and January 2017, the applicant fraudulently transferred sums of money from the company to her own benefit. The applicant effected over 500 separate dishonest transfers. Although there was really only one ongoing course of criminal conduct, two charges were laid because the applicant utilised two separate accounts as repositories of the funds.

9. All the money was spent by the applicant on herself and her family. The corporate victim recovered only $70,000 (that is, something in the order of 5% of its total loss) when the proceeds of sale of real property owned by the applicant were distributed by her trustee in bankruptcy.

10. Subjectively, the applicant was aged between 44 and 51 years during the commission of the offences. At the time of imposition of sentence, she was 52 years of age.

11. She had pleaded guilty in the Local Court and an orthodox utilitarian discount of 25% was applied to each indicative sentence.

12. She was found by his Honour to be genuinely remorseful.

13. She had not previously been in custody with regard to these or any other matters, and indeed had no criminal record whatsoever.

14. As for motive, the applicant had neither been addicted to gambling nor suffering from any other compulsive dependency at the time of the offences. Rather, the explanation for her conduct was that she had suffered the distressing experience of being treated for cancer in 2006. The following year, she and her husband separated, leaving her with the three children. At the time, two of them were teenagers and one was a toddler; by the time of imposition of sentence they were aged 24, 23 and 15. In order to impress her husband, and to make him believe that she was surviving very well without him, the applicant proceeded to steal and spend large amounts of money on herself and her children, two of whom were suffering from significant psychological issues.

15. In the remarks on sentence, the sentencing judge quoted from a psychological report to the effect that the applicant had experienced stressful circumstances in her life that she felt had been beyond her control, and had developed “maladaptive coping strategies” to give the impression that she was nevertheless in control. The author of the report expressed the opinion that the applicant had adopted behaviour “aimed at controlling her anxiety and emotional suppression”.

16. The sentencing judge recounted and implicitly accepted those matters. Having said that, his Honour also found that there was no “causal link between mental health and the offending”.

17. Apart from the extent to which the matters that I have recounted can perhaps be characterised as a psychological condition, the applicant suffered from no frank mental illness, or intellectual disability.

Aspects of sentence

18. As I have said, the aggregate sentence featured a head sentence of 5 years 6 months and a non-parole period of 3 years, to date from the day of its imposition.

19. The indicative sentences (after application of the discount) were imprisonment for 4 ½ years and 3 years, no doubt because of the difference in quantum between the two counts.

20. It can be seen that special circumstances were found, and the ratio between the aggregate non-parole period and head sentence is just under 55%.

Grounds of appeal

21. The following grounds of appeal were notified and pressed by the applicant, who was represented by counsel in the proceedings on sentence but appeared for herself before this Court.

Ground 1

New Evidence not available at sentence Hardship/3rd Party

Ground 2

New Evidence - Special Circumstances

Ground 3

Error not being able to receive Rehabilitation

Ground 4

Lesser sentence warranted in Law

Ground 5

Manifest Excess

Brief discussion of each ground for the purposes of leave

22. In written and oral submissions, the applicant explained that ground 1 has two bases. The first is the difficult medical conditions of her granddaughter, who was born some months ago, well after the imposition of sentence. The second is the psychological condition of her teenage son, in support of which the applicant relied upon a number of medical reports (all dated after the imposition of sentence) that show that he has recently been diagnosed with, and treated for, depression, anxiety, and post-traumatic stress disorder (PTSD)). The point was made that it has been discovered that he had been suffering from those conditions for quite some time.

23. Without doubting the sincerity of the applicant in her anxiety whilst in custody about her child and grandchild, or the reliability of the medical reports upon which she relies, in my opinion this ground is incapable of success. That is because neither of the matters upon which the applicant relies falls within the exceptional principles for intervention explained in Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118.

24. With regard to the granddaughter of the applicant, patently her medical conditions that developed after birth could not be taken into account at the time of sentence, because she had not yet been born. In my opinion, a matter that wholly develops after the imposition of sentence cannot be the subject of subsequent intervention by this Court.

25. With regard to the son of the applicant, it is true that the proposed evidence now speaks of his conditions having existed prior to the date of imposition of sentence. But In her oral evidence in the proceedings on sentence, the following exchange occurred between the applicant and her counsel:

“Q. Who’s going to look after [the son] while you’re away?

A. My two eldest children.

Q. Does he have any disabilities or issues with his health?

A. He doesn’t have any issues. The most heart breaking thing was this morning he had to - wouldn’t let go of me and I feel so guilty.”

26. Thereafter, entirely as one would expect, although the sentencing judge recounted some of the circumstances of other members of the family of the applicant in the remarks on sentence, his Honour made no finding at all about any psychological condition of the son in question.

27. Without delving deeply into the parameters of the exceptional doctrine that permits revisitation of such matters in this Court, I accept that the mere fact that a matter now found to have pre-existed the imposition of sentence was not brought at all to the attention of the sentencing judge is not fatal to such an application. But here the proposed evidence is of psychological difficulties, not some compelling physical illness; it relates not to the applicant herself, but rather someone close to her; and the new evidence could only increase by degree the distress already suffered by the applicant and her son as a result of her incarceration.

28. In my opinion, the discretion to permit such evidence spoken of in Khoury v R at [110] – [121] should not be exercised in those circumstances.

29. For those reasons, I consider that ground 1 must fail.

30. Ground 2 was based on the same matters, and must fail for the same reasons. Separately, if it is intended to be an indirect complaint about the topic of special circumstances, they were found, and the degree of reduction from the statutory ratio was substantial, indeed marked.

31. Ground 3 was based on the proposition that the sentencing judge had only received the report of the psychologist referred to above on the morning of the hearing, and had only had the morning tea break to read it. It was said that those logistical difficulties meant that it was impossible for the judge to give it due regard. It was also said that the brief conspectus of such matters in the remarks on sentence corroborates the thesis.

32. This ground should, in my opinion, fail as well. My own experience as counsel and judge is that one can and must develop a very effective ability to read, understand, reflect upon, and apply the contents of complex documents in a short amount of time. Whilst it is true that the sentencing judge spoke concisely in these ex tempore remarks, there is nothing to suggest that the import of the subjective case for the applicant was not understood or not taken into account. And in any event, as I have said, the mature applicant was neither mentally ill, nor intellectually disabled, nor acting under any compulsion arising from addiction or anything else when she stole this huge sum of money.

33. A separate part of this ground was the complaint of the applicant that she is receiving little psychological help in custody. But disappointment and frustration about that on the part of this offender cannot found a ground of appeal in this case.

34. Ground 4 is a misunderstanding of the basis of resentence pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW), and need not be discussed as a substantive ground.

35. Ground 5 is, in my opinion, untenable. And that would be the case even if – for the sake of argument only, and contrary to what I have written above – one took into account the whole of the new evidence upon which the applicant now seeks to rely.

36. By any measure (and giving full weight to the good character, plea of guilty, and remorse of the applicant), in light of the very large amount of money dishonestly taken; the net loss to the victim after comparatively meagre recompense; the literally hundreds of separate acts of criminality; the chronicity of the offending over many years; the significant breach of trust; and the absence of any form of compulsion arising from dependence or otherwise on the part of the applicant, this aggregate sentence – and, in particular, its non-parole period – must be seen as quite lenient.

37. Finally, and again for the sake of argument and completeness only, if all of the evidence sought now to be relied upon were admitted, and if it were able to establish any other form of error, re-exercising the sentencing discretion afresh, I would not impose any sentence less than that to which the applicant is currently subject.

Proposed order

38. For those brief reasons, the order I propose is:

1. Extension of time to give notice of application for leave to appeal against sentence is refused.

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Decision last updated: 17 December 2019