Schneider v The Queen

Case [2016] VSCA 76


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0164

DAN SCHNEIDER Applicant
v
THE QUEEN Respondent

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JUDGES: PRIEST,  COGHLAN and KYROU JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 19 April 2016
DATE OF JUDGMENT: 19 April 2016
MEDIUM NEUTRAL CITATION: [2016] VSCA 76
JUDGMENT APPEALED FROM: DPP v Schneider (Unreported, County Court of Victoria, Judge Stuart, 5 August 2015)

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CRIMINAL LAW — Sentence — Appeal — Conspiracy to cheat and defraud — Mitigating factors — Risk of deportation — Whether judge failed to take into account changes to Migration Act 1958 (Cth) — Whether judge failed properly to take into account risk of deportation — Whether sentencing judge mistook nature of prior conviction — Whether sentence manifestly excessive — Appeal dismissed — DPP v Zhuang [2015] VSCA 96, Konamala v The Queen [2016] VSCA 48, Da Costa v The Queen [2016] VSCA 49 — Migration Act 1958 (Cth), ss 501(3A), 501CA.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr R Melasecca (Solicitor) Melasecca, Kelly & Zayler
For the Crown Mr B Sonnett Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:               

Introduction

  1. Pursuant to leave granted by a judge of this Court, Dan Schneider has appealed against a sentence of five and a half years’ imprisonment, with a non-parole period of three and a half years, imposed upon him in the County Court following his plea of guilty to a charge of conspiracy to cheat and defraud.[1]

    [1]Conspiracy to cheat and defraud is a crime at common law punishable by imprisonment for 15 years: Crimes Act 1958, s 320. Spelling, grammar and syntax is as in the Notice of Application for Leave to Appeal..

  1. Leave was granted on three grounds as follows:[2]

    [2]For convenience, I have renumbered the grounds.  Spelling, grammar and syntax from the Notice of Application for Leave to Appeal has been preserved.

1.   The Learned Sentencing Judge gave insufficient consideration to the [appellant’s] prospect of deportation.

2.   The sentencing exercise is vitiated by factual errors in that … [the] Learned Sentencing Judge erred in finding that the [appellant] was involved in prior card skimming activities.

3.   The sentence is manifestly excessive having regard to:

(a)The availability of a sentence which combines imprisonment with a community correction order;

(b)The Learned Sentencing Judge’s acceptance that the sentence should be moderated having regards to the Applicant’s mental condition at the time of sentencing;

(c)The Learned Sentencing Judge’s acceptance that imprisonment would weigh heavily upon the Applicant having regards to the fact that he could not be there to support his loved ones;

(d)The effect of a possible deportation;

(e)The Learned Sentencing Judge’s acceptance of the valuable plea of guilty in this particular case;

(f)The Learned Sentencing Judge’s acceptance of the lesser role of the offending of the Applicant;

(g)Comparable sentences that have been applied by this Honourable court and other court’s in similar matters.

  1. For the reasons that follow, the appeal should be dismissed.

Circumstances of the offending

  1. Card skimming involves a…

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Schneider v The Queen [2016] VSCA 76
Case
[2016] VSCA 76
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CaseChat Overview and Summary

In the matter of Schneider v The Queen, the appellant, Schneider, sought to appeal his sentence for conspiracy to cheat and defraud. The appeal centred on the sentencing judge's handling of mitigating factors, including the risk of deportation, and whether the sentence was manifestly excessive. The case was heard by the Court of Appeal.

The primary legal issues addressed by the court were whether the sentencing judge had failed to consider changes to the Migration Act 1958 (Cth) in assessing the risk of deportation, whether the judge had correctly taken into account this risk, and if the sentencing judge had properly understood the nature of Schneider's prior conviction. Additionally, the court examined whether the sentence was manifestly excessive.

The court held that the sentencing judge had not erred in failing to consider changes to the Migration Act, as the risk of deportation was not a legally recognised mitigating factor at the time of sentencing. Furthermore, the court found that the judge had adequately taken into account the risk of deportation and had not mistaken the nature of Schneider's prior conviction. Finally, the court concluded that the sentence was not manifestly excessive, considering the seriousness of the offence and the need for general deterrence. Consequently, the appeal was dismissed.

No additional orders were made by the court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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