Scholte v Rex

[2023] NSWCCA 318

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Scholte v Rex [2023] NSWCCA 318

Hearing dates:

1 December 2023

Date of orders:

12 December 2023

Decision date:

12 December 2023

Before:

Simpson AJA at [1];
Button J at [35];
Weinstein J at [36]

Decision:

1. Leave granted to appeal against the sentence imposed on 20 September 2022;

2. Appeal allowed; sentence quashed;

3. In lieu thereof the applicant sentenced to imprisonment made up of a non-parole period of 2 years, commencing on 29 July 2022, and expiring on 28 July 2024, and a balance of term of 2 years which will expire on 28 July 2026.

Catchwords:

CRIME – appeals – appeal against sentence – aggregate sentences – where aggregate sentence not reconcilable with the sentencing judge’s stated intentions as to the accumulation of the indicative sentences – error conceded by the Crown

SENTENCING – firearms offences – where offender convicted of possession, use and unsafe storage of a firearm – general need for some degree of accumulation – where subjective circumstances justified minimal accumulation

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A, 166

Criminal Procedure Act 1986 (NSW), ss 33B, 61

Firearms Act 1996 (NSW), ss 7A, 39

Cases Cited:

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

Category:

Principal judgment

Parties:

Shane Nathan Scholte (Applicant)
The Crown

Representation:

Counsel:
L Brasch (Applicant)
J Styles (Respondent/Crown)

Solicitors:
WM Lloyd & Associates (Applicant)
Solicitor for Public Prosecutions NSW (Respondent/Crown)

File Number(s):

2020/316366
2021/37688

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

20 September 2022

Before:

Arnott SC DCJ

File Number(s):

2020/316366
2021/37688

JUDGMENT

1. SIMPSON AJA: The applicant (Shane Scholte) seeks leave to appeal against a sentence imposed on him in the District Court in Goulburn on 20 September 2022, in relation to four offences, all committed on 31 October 2020. The offences were:

Count 1: possess unauthorised firearm, an offence against s 7A of the Firearms Act 1996 (NSW), which prescribes a maximum penalty of imprisonment for 5 years;

Count 2: common assault, an offence against s 61 of the Crimes Act 1900 (NSW) for which a maximum sentence of imprisonment for 2 years is prescribed; and

Count 3: use offensive weapon in company with intent to commit an indictable offence (intimidation), an offence against s 33B(2) of the Crimes Act, for which a maximum penalty of imprisonment for 15 years is prescribed.

The final offence (“the s 166 offence”), which was before the sentencing judge by way of a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), was of failing to take all reasonable precautions to ensure the safe keeping of a firearm, an offence against s 39(1)(a) of the Firearms Act, for which a maximum penalty of imprisonment for 12 months is prescribed.

2. On 18 February 2022 the applicant entered pleas of guilty to counts 1 and 2. He entered a plea of not guilty to count 3, and was convicted after a jury trial concluding on 29 July 2022. The applicant admitted his guilt of the s 166 offence.

3. On 20 September 2022, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), Arnott SC DCJ imposed an aggregate sentence of imprisonment of 5 years with a non-parole period of 2 years and 6 months, to date from 29 July 2022. As required by s 53A(2) his Honour nominated the sentences he would have imposed in respect of each offence had he been sentencing separately for those offences.

4. The applicant’s application for leave to appeal is based on a single ground, which will be explained below, and which the Crown concedes.

The facts of the offending

5. The facts relevant to counts 1 and 2 were put before the sentencing judge in an agreed statement. The facts relating to count 3 and the s 166 offence are drawn from the evidence in the applicant’s trial.

6. All offences were committed on a rural property outside Goulburn in NSW. The applicant lived with his father (Hendrickus Scholte) and the applicant’s nephew (Isaac Sutton) in one of two houses erected on the property. The other house was occupied by Melissa Russell and her son Chris King. Until his death on 14 October 2020 Terry Price also lived in that house. After Terry Price’s death his son Timothy Price attended the property in order to collect some of his possessions. At about 10.30 pm on 31 October 2020 Timothy Price, with his girlfriend Kimberly Andrew, attended the property for the purpose of taking possession of a Toyota Hilux vehicle and a dog. He drove to the property in a Mazda Bravo, which he intended to exchange for the Toyota. There had been disputes between Ms Russell and Timothy Price over ownership of the Toyota. About 10 minutes later the applicant’s father arrived at the scene, as Timothy Price and Ms Andrew were attempting to put the dog into the Toyota. Hendrickus Scholte began hitting Timothy Price in the lower legs with a pickaxe handle. The dog became agitated. The applicant arrived on the scene in another vehicle, with Isaac Sutton. He was in possession of a shotgun (giving rise to count 1) which he loaded with one round of ammunition. Hendrickus Scholte and Isaac Sutton approached Timothy Price and shouted at him to get off the property. Hendrickus Scholte swung the pickaxe handle at Timothy Price’s legs. The applicant pointed the shotgun at Timothy Price (giving rise to count 3). Isaac Sutton took the shotgun from the applicant. Timothy Price opened the door of the Mazda; the applicant punched him in the mouth. (This gave rise to count 2). There followed a wrestle and a tussle between the applicant and Timothy Price, during which Timothy Price punched the applicant three or four times, causing the applicant to fall to the ground. Hendrickus Scholte continued hitting Timothy Price. Isaac Sutton discharged the shotgun and shouted that he had another one and issued a number of threats.

7. A subsequent search of the property (on 4 November 2020) revealed that the shotgun was concealed under a mattress on the verandah of the house occupied by the applicant, his father, and Isaac Sutton. This was the basis for the s 166 offence.

The applicant’s personal circumstances

8. The sentencing judge had the benefit of a Sentencing Assessment Report, a detailed psychological report prepared by Ms Susan Homeh Hawil, a letter from the applicant’s aunt, Ms Carol Dyball (who described herself as an experienced registered nurse of 42 years and a nurse educator with post-graduate qualifications in emergency nursing and education), a medical report by Dr Grant Shalaby (a consultant cardiologist who had been treating the applicant for about 14 years). That evidence disclosed the following.

9. The applicant was born in October 1976 and was 44 years of age at the time of offending. He was then single but had a 16 year old daughter from a former relationship, with whom he maintained contact. He was living on the Goulburn property as a carer for his father. He had qualifications as a panel beater, but was not working in that role, and was in receipt of a disability pension. He told the author of the Sentencing Assessment Report that he took the shotgun to the scene with the aim of shooting the dog if it appeared to him that the dog was a threat to anybody. The author of the Sentencing Assessment Report considered that the applicant showed no insight into the impact of the offence on Timothy Price or the broader community, but nevertheless assessed him as “medium to low risk of reoffending”.

10. The applicant has a criminal record dating back to 1995, which includes offences of assaulting and resisting or hindering police officers in the execution of duty; possessing implements to enter and drive a conveyance; taking and driving a conveyance without the consent of the owner; and driving while his licence was cancelled. For these last three offences he was sentenced to imprisonment for 6 months, the sentence to be served by way of periodic detention.

11. In 2003 the applicant was convicted of supplying not less than the indictable quantity of a prohibited drug (other than cannabis), for which he was sentenced to imprisonment for 18 months with a non-parole period of 9 months, the sentence suspended subject to conditions. No further information was provided in relation to these offences. It appears that the applicant has never previously served a sentence of full-time imprisonment.

12. Ms Homeh Hawil’s report was principally based on information provided to her by the applicant, none of which was put in issue. She recorded that the applicant had experimented with amphetamines recreationally between the ages of 19 and 27, but denied using other substances and reported no history of alcohol abuse or gambling problems. This was in contrast to the Sentencing Assessment Report, the author of which asserted that the applicant had a “history of criminal behaviour with mostly drug related convictions”.

13. The applicant has an extensive and serious medical history. At the age of 30 years he was diagnosed with cardiomyopathy, confirmed by Dr Shalaby. He reported having suffered at least one stroke (also confirmed by Dr Shalaby). He has also been diagnosed with Type 2 diabetes which Dr Shalaby said is poorly controlled. He has undergone many surgical procedures with little apparent benefit.

14. Ms Homeh Hawil considered that the applicant meets the criteria for “Major Depressive Disorder with Anxious Distress, Recurrent, Severe”.

15. Dr Shalaby essentially confirmed and expanded on the applicant’s account of his medical history, and that provided by Ms Dyball. Dr Shalaby recorded that the applicant suffers from, inter alia:

• cardiomyopathy;

• congestive cardiac failure;

• morbid obesity;

• poorly controlled diabetes;

• osteomyelitis of foot;

• chronic kidney disease;

• severe depression;

• likely cognitive impairment secondary to previous stroke;

• recurrent severe gout.

16. Ms Dyball itemised 19 medications that are prescribed for the applicant, which, she said, with his medical regime and appointments, need to be managed by herself, the applicant’s mother and his ex-partner.

17. An important aspect of Ms Homeh Hawil’s report was the assertion (unchallenged by the Crown) that, since his incarceration following the jury verdict, the applicant has not had access to podiatry services and medical reviews and has not been prescribed some of the medication that he requires.

The remarks on sentence

18. The sentencing judge recorded, uncontroversially, the facts of the offences and of the applicant’s personal circumstances. His Honour accepted that the applicant’s life expectancy is shortened due to his cardiac condition. He found that the applicant’s time in custody will be more difficult due to his various medical conditions, and has also been more difficult due to COVID-19 restrictions. His Honour found that the applicant’s prospects of rehabilitation and not reoffending were reasonable, because, at the age of 45, his criminal history is limited.

19. The sentencing judge allowed a reduction in the sentence for the utilitarian value of the pleas of guilty to the counts 1 and 2 and the s 166 offences, although, obviously, no such reduction could be allowed in relation to the count 3 offence, the most serious of the offences. His Honour found special circumstances pursuant to s 44(2) of the Sentencing Procedure Act, justifying departure from the statutory proportion between the head sentence and the non-parole period. The resultant non-parole period was 50% of the head sentence, a significant reduction in the statutory proportion of 75%.

20. The sentencing judge considered and assessed the objective gravity of each of the offences. He assessed the objective gravity of the count 1 offence (unauthorised possession of a firearm) as “towards the lower end of the range of seriousness for offences of this type”; of the count 2 offence (assault) as towards the bottom end of the range of seriousness for offences of its type; and of the s 166 offence as below the middle of the range of seriousness (because of the limited time in which the firearm was not kept safely). His Honour found the count 3 offence (use offensive weapon in company with intent to commit an indictable offence) to be “grave” but “a little below the middle of the range of seriousness for offences of this type”.

21. His Honour then nominated the individual sentences he would, if sentencing separately, have imposed. These were:

• Count 1:   imprisonment for 14 months;

• Count 2:   imprisonment for 6 months;

• Count 3:   imprisonment for 4 years;

• S 166 offence:   imprisonment for 3 months.

22. In nominating those notional sentences his Honour stated that, if sentencing separately for the offences, he would have made each of sentences in respect of counts 1 and 3 and the s 166 offence wholly concurrent, and would have allowed “a moderate degree of accumulation” for the count 2 (assault) offence, which he saw as constituting “a separate act of criminality”.

The application for leave to appeal

23. It is the combination of the stated notional sentences and the stated intention that three of the sentences should be wholly concurrent and one the subject of “a moderate degree of accumulation” that gives rise to the single (conceded) ground of appeal. The applicant contends that the aggregate sentence imposed (imprisonment for 5 years) did not give effect to the sentencing judge’s clearly stated intention.

24. The contention (and the Crown’s concession) must be accepted. Had all sentences (including the sentence for the assault) been made wholly concurrent, the aggregate sentence would have imprisonment for 4 years. Had the sentence for the assault offence been wholly accumulated (contrary to his Honour’s stated intention) the sentence imposed could not have been more than 4 years and 6 months. Had the assault offence been accumulated by 50%, the aggregate sentence would have been imprisonment for 4 years and 3 months.

25. The parties agreed that the error is not of the kind that can be corrected by simple mathematical adjustment. That is because the sentencing judge did not specify what he intended by “a moderate degree of accumulation” for the assault offence. The result is that this Court must set aside the sentence imposed and exercise afresh the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255.

26. Against the reasonable possibility that the appeal is upheld, the applicant provided updating evidence, in the form of an affidavit sworn by him on 23 November 2023. He said that due to his various health conditions he has been unable to work whilst incarcerated. He said that he has been admitted to hospital on at least four occasions since he was sentenced, on three of which he remained in hospital for approximately ten days. In about August 2023 he was admitted to Prince of Wales hospital where he remained an in-patient for about three weeks. He said that prior to that admission he had passed out on two occasions in the gaol. On the first occasion he was monitored in the nurse’s unit for about half an hour and returned to his “yard”. On the second he was taken to hospital.

27. He is now held in the Metropolitan Special Programs Centre at the Long Bay Prison Complex where he is unable to complete any courses and there is no work available to him. This is despite his ambition to complete some courses such as one giving rise to a forklift qualification in order to improve his post-incarceration prospects of employment.

Resentence

28. No issue was taken with the notional sentences nominated by the sentencing judge, nor, indeed, was it contended that the aggregate sentence imposed was manifestly excessive. Nor was any issue taken by either party with the sentencing judge’s assessment of the objective seriousness of any of the offences. Although, for my part, I might have considered that the assessment in relation to count 3 as a little below the mid-range to be somewhat generous to the applicant, this Court was not asked to depart from those findings.

29. It remains the duty of this Court to bring a fresh mind and a fresh eye to the sentencing of the applicant.

30. The medical evidence before the sentencing judge was powerful. No further medical evidence was provided to this Court but the applicant’s account of his medical history since incarceration was not challenged and should be taken into account in the selection of the aggregate sentence.

31. Absent the significant medical evidence and the applicant’s affidavit, I would not have adopted the sentencing judge’s view on accumulation and concurrency. In my opinion, aggregate sentences imposed for the possession of an unauthorised firearm and its use (counts 1 and 3) should, ordinarily, recognise the different aspects of criminality involved in those offences, which should be reflected by some degree of accumulation. I agree with the sentencing judge that the assault was a separate offence, also warranting some degree of accumulation. Similarly, in my opinion, the failure to keep the firearm safely is indicative of a different (and more prolonged) aspect of criminality warranting some degree of accumulation.

32. I would propose the following notional sentences, some of which exceed the notional sentences nominated by the sentencing judge:

Count 1:   imprisonment for 15 months;

Count 2:   imprisonment for 4 months;

Count 3:   imprisonment for 4 years;

The s 166 offence:   imprisonment for 6 months.

33. It is in the compression of those notional sentences into an aggregate sentence that the applicant’s personal circumstances may, and should, carry significant weight. Wholly accumulated, the notional sentences that I propose would result in an aggregate sentence of 6 years and 1 month. The aggregate sentence I propose is imprisonment for 4 years with a non-parole period of 2 years.

34. The orders I propose are:

1. Leave granted to appeal against the sentence imposed on 20 September 2022;

2. Appeal allowed; sentence quashed;

3. In lieu thereof the applicant sentenced to imprisonment made up of a non-parole period of 2 years, commencing on 29 July 2022, and expiring on 28 July 2024, and a balance of term of 2 years which will expire on 28 July 2026.

   35. BUTTON J: I agree with Simpson AJA.

   36. WEINSTEIN J: I agree with Simpson AJA.

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Decision last updated: 12 December 2023