Schuelein v The Queen

Case [2016] NTCCA 7

Schuelein v The Queen [2016] NTCCA 7

PARTIES:  SCHUELEIN, Joseph

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 8 of 2016 (21531453)

DELIVERED:  23 December 2016

HEARING DATE:  21 October 2016

JUDGMENT OF:  SOUTHWOOD, BLOKLAND and HILEY JJ

APPEALED FROM:  KELLY J

CATCHWORDS:

CRIMINAL LAW – Appeal against sentence – whether the sentencing Judge failed to give sufficient weight to the applicant’s rehabilitation – whether the sentence imposed was manifestly excessive in all the circumstances – sentence within range and not plainly unjust – period of actual imprisonment ordered unlikely to undo rehabilitation – ground of appeal dismissed by Southwood and Hiley JJ, Blokland J dissenting – appeal dismissed

CRIMINAL LAW – Appeal against sentence – whether the sentencing Judge made an unavailable conclusion of fact – principles in De Simoni v The Queen do not arise – ground of appeal dismissed unanimously – appeal dismissed

CRIMINAL LAW – Appeal against sentence – error in statutory maximum penalty – error found not to amount to a miscarriage of justice – ground of appeal dismissed unanimously – appeal dismissed

Crimes Act 1914 (Cth)

Misuse of Drugs Act (NT) s 5, s 6, s 37

Sentencing Act (NT) s 5

McDonald v The Queen (1992) 110 FLR 232, applied

R v RAAD (2006) 15 VR 338, followed

Daniels v The Queen (2007) 20 NTLR 147; Fisher v The Queen [2014] NTCCA 19; Liddy v R [2005] NTCCA 4; R v De Simoni (1981) 147 CLR 383; R v Pogson; R v Lapham; and R v Martin 2012) 82 NSWLR 60; R v Syrch and Burns (2006) 18 NTLR 160; The Queen v Cavanagh – Novelli [2014] NTCCA 21; The Queen v Indrikson [2014] NTCCA 10; Truong v The Queen [2015] NTCCA 5; Yardley v Betts (1979) 22 SASR 108, referred to

REPRESENTATION:

Counsel:

Applicant:I Read SC

Respondent:  D Dalrymple

Solicitors:

Applicant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  33

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Schuelein v The Queen [2016] NTCCA 7

No. CA 8 of 2016 (21531453)

BETWEEN:

JOSEPH SCHUELEIN

Applicant

AND:

THE QUEEN

Respondent

CORAM:     SOUTHWOOD, BLOKLAND and HILEY JJ

REASONS FOR JUDGMENT

(Delivered 23 December 2016)

SOUTHWOOD and HILEY JJ:

  1. On 23 May 2016 the applicant pleaded guilty to two counts on an indictment dated 18 May 2016. Count 1 pleaded that contrary to s 5(1) and (2)(b)(iii) of the Misuse of Drugs Act (NT) on 25 June 2015 at Katherine the applicant supplied 4,848.79 grams of cannabis which is a commercial quantity of the dangerous drug. Count 2 pleaded that contrary to s 6(1) of the Misuse of Drugs Act on 25 June 2015 at Katherine the applicant received $40,000 obtained indirectly from the commission of an offence…

Continue reading Schuelein v The Queen

Sign in free to access the full text

Details
AGLC
Schuelein v The Queen [2016] NTCCA 7
Case
[2016] NTCCA 7
Decision Date

CaseChat Overview and Summary

The applicant, Schuelein, appealed against his sentence for drug trafficking offences. The appeal was heard by Southwood, Blokland, and Hiley JJ of the Court of Criminal Appeal of the Northern Territory. The applicant had been convicted of obtaining a significant quantity of cannabis for commercial gain and for demanding repayment of a drug debt through coercion, which led to the victim's family transferring substantial sums of money.

The Court was required to determine whether the sentencing judge erred in failing to give sufficient weight to the applicant's rehabilitation efforts, rendering the sentence manifestly excessive. Additionally, the Court considered whether the sentencing judge made an unavailable conclusion of fact that improperly elevated the objective seriousness of the offending, and whether an error regarding the statutory maximum penalty for one of the offences constituted a miscarriage of justice.

The Court dismissed the ground relating to rehabilitation, finding that while the applicant had made efforts towards rehabilitation, the period of actual imprisonment imposed was unlikely to negate these advancements. Regarding the alleged unavailable conclusion of fact, the Court held that the sentencing judge had merely rejected a submission in mitigation and had not made a finding of fact that amounted to an aggravating circumstance, thus the principles in *R v De Simoni* were not engaged. The Court also found that while the sentencing judge initially misstated the statutory maximum penalty for one count, this error was corrected immediately after sentencing and did not amount to a miscarriage of justice.

Consequently, the appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In this case the applicant abandoned two proposed grounds of appeal which were clearly not arguable and persisted in arguing two proposed grounds of appeal which were also not arguable. Counsel are encouraged to exercise proper discernment in formulating grounds of appeal and not raise footling arguments. Poor grounds of appeal detract from good grounds of appeal.The facts The facts of the offending are as follows. The applicant and Robin Sands were acquaintances. Mr Sands owed the applicant $40,000 for drug sales that occurred before June 2015. Sometime before 19 June 2015 the applicant flew to Sydney where he obtained 4,848.79 grams of cannabis which is almost 10 times the commercial quantity of the dangerous drug. The cannabis was packed in cryovac bags and hidden in a large black duffle bag. After obtaining the cannabis the applicant hired a campervan and drove from Sydney to the Northern Territory. He arrived at Mataranka on 25 June 2015 where he met Mr Sands and demanded payment of the $40,000 that Mr Sands owed him. The applicant then drove Mr Sands from Mataranka to Katherine. Before reaching Katherine, Mr Sands telephoned his mother and told her that he was in serious trouble and needed $30,000 to be transferred to his Westpac Bank account if he was to remain safe. After reaching Katherine Mr Sands made further contact with his mother and she transferred $30,000 to his bank account. The applicant drove him to Westpac Bank on Katherine Terrace and he withdrew the $30,000. Mr Sands then returned to the campervan and gave the applicant the money. The applicant drove Mr Sands to a local park and told him the $30,000 was not enough. He said Mr Sands needed to pay him another $10,000. Mr Sands then telephoned his sister and asked her to deposit $10,000 into his bank account. She did so and the applicant again drove Mr Sands to the Westpac Bank in Katherine. Mr Sands withdrew the $10,000 and gave it to the applicant who dropped him off at the BP Service Station and Travel Centre in Katherine. The police became aware of Mr Sands’ situation. They obtained a statement from him and arrested the applicant at the Beagle Motel. The police searched the applicant’s room at the motel and found the money and the cannabis in his room.Objective seriousness The offending is objectively serious. The maximum penalty for count 1 is imprisonment for 14 years. The maximum penalty for count 2 is imprisonment for 25 years. Such offences are prevalent and the supply and use of cannabis causes great harm in the community. Cannabis is even more harmful when supplied in remote communities. The offending occurred in the context of the applicant engaging in drug dealing for commercial gain. He had sold a significant and very lucrative amount of the dangerous drug to Mr Sands and he was engaging in further drug supply at the time he recovered the money from him. $40,000 is a significant amount of money and the applicant deliberately travelled interstate and imported almost 10 times the commercial quantity of cannabis into the Northern Territory. The obtaining and supply of the cannabis was a planned activity and the applicant made arrangements in advance to recover the money from Mr Sands. As a result of the pressure he placed on Mr Sands to repay the money both his mother and sister were at risk of losing a significant amount of money. Fortunately, most of the money was recovered by the police.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

While it is true that as a result of his advancement while on bail the applicant may find prison harder, the period of actual imprisonment ordered by the sentencing Judge is unlikely to undo any advancement and rehabilitation that the applicant has achieved.Ground 3 – unavailable conclusion of fact When sentencing the applicant her Honour the sentencing Judge made the following remarks.I do not accept that you did not realise the damage that [cannabis] was doing to you and other people. Perhaps you did not realise the damage that your habit was doing to you but you most certainly realised that you getting money from Mr Sands was putting him in fear and was causing severe financial damage to members of his family. So I simply do not accept that you did not realise that you were causing damage. Her Honour then went on to state:Your conduct in encouraging Mr Sands to obtain money from his family in the fashion that he did saying that he needed to ensure his safety, reflects badly on you. The applicant submitted that these findings went beyond what was open on the facts and elevated the objective seriousness of the offending in a way that potentially infringed the principle in R v De Simoni.[4] In our opinion, this ground of appeal cannot be sustained because there was no finding of fact of the kind contended by the applicant and no finding of fact that quantitatively affected the length of the sentence. In the sentencing remarks set out at [34] her Honour rejects the applicant’s contention that he did not realise he was causing harm by committing these crimes. That is, her Honour does no more than reject a matter put in mitigation on behalf of the applicant. She does not make a finding amounting to an aggravating circumstance. In the passage referred to at [35] her Honour the sentencing Judge is not referring back to the passage set out at [34]. She is referring to the following admitted facts.He arrived at Mataranka on 25 June 2015 where he met Mr Sands and demanded payment of the $40,000 that Mr Sands owed him. The applicant then drove Mr Sands from Mataranka to Katherine. Before reaching Katherine, Mr Sands telephoned his mother and told her that he was in serious trouble and needed $30,000 to be transferred to his Westpac bank account if he was to remain safe. The remarks set out at [35] are little more than a throwaway line about the nature of the applicant’s character as demonstrated by him ‘standing by’ while Mr Sands obtained money from his mother and sister in the way that he did. His conduct reflects how callous and commercially driven his offending was. In the circumstances, the De Simoni principles do not arise for consideration by this Court.Ground 6 – Statutory maximum penalty When sentencing the applicant the sentencing Judge was under the mistaken apprehension that the maximum penalty for count 1 was 25 years when it was 14 years. This error was drawn to her Honour’s attention immediately after her Honour passed sentence by counsel who appeared on behalf of the applicant in the Court below.

Ratio Decidendi

Legal Principle Established

In a case such as this where the offender has made significant efforts prior to being sentenced to facilitate rehabilitation, such efforts are usually, within the appropriate limits having regard to the overall gravity, taken into account or recognised in the sentence in a meaningful way. Upon being sentenced, the applicant was required to return to prison for a significant period after engaging substantially in meaningful rehabilitation. Sentencing considerations of the learned sentencing Judge The learned sentencing Judge set out the charges and the agreed facts. Those have already been summarised and will not be repeated here. When setting out the charges, the learned sentencing Judge stated the maximum penalty for count 1 was 25 years, when it is 14 years. This was corrected after the sentence was pronounced and after counsel for the applicant drew her Honour’s attention to the mistake. As will be seen below, in my view, this was unlikely to have had a specific bearing on the sentence actually passed. The sentencing Judge noted the subjective factors that have been outlined, including the applicant’s efforts at rehabilitation and education. Her Honour did not accept the submission that the applicant did not realise he was causing damage, specifically pointing out that the applicant realised he was getting money from Sands, putting him in fear and causing severe financial damage to members of his family. This observation primarily related to the facts relevant to count 2. Her Honour also correctly in my view made it clear that the applicant would be dealt with as a principal. She noted that the conduct comprised in count 2 reflected badly on the applicant and set out the reasons for the need for general deterrence and the significant social harms in Aboriginal communities that occur as a result of cannabis supply, however acknowledged that the applicant was not charged with an aggravated form of offending involving an allegation of supply intended for Aboriginal communities. The prominence of general deterrence was also acknowledged:The courts have said many times that general deterrence is the most important thing to consider in these sorts of drug offences. I must impose a sentence that will discourage other people from doing what you have done. I also have to impose a sentence that will discourage you from doing something like this again. In relation to rehabilitation, her Honour said:I also however need to consider rehabilitation. I accept for the purposes of this sentencing exercise that you were a drug dependent individual. However, the Crown does not accept that your drug dependency was causally related to your offending and neither do I. This was clearly an ongoing commercial drug dealing business generating large amounts of money. Later in the sentencing remarks her Honour stated: And I think the seriousness of your offending warrants a period of actual imprisonment which is substantially longer than that. I do take into account that you have a job. I do take into account that you have made substantial efforts to get off the drug yourself but, as I say, I do not consider that was causally related to your offending in any event.