DPP v Schneider (Unreported, County Court of Victoria, Judge Stuart, 5 August 2015)
---
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.
---
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
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..
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.
For the reasons that follow, the appeal should be dismissed.
Circumstances of the offending
Card skimming involves a…
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 Schneider v The Queen
Sign in free to access the full text
Details
AGLC
Schneider v The Queen [2016] VSCA 76
Case
[2016] VSCA 76
Decision Date
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.