Schwalm v The Queen

[2019] ACTCA 20

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Schwalm v The Queen

Citation:

[2019] ACTCA 20

Hearing Date:

7 August 2019

DecisionDate:

8 August 2019

Before:

Murrell CJ, Loukas-Karlsson and Bromwich JJ

Decision:

Appeal dismissed.

Catchwords:

CRIMINAL LAW – APPEAL – Appeal against sentence – whether the sentence imposed was manifestly excessive – fresh evidence – appeal dismissed

Legislation Cited:

Magistrates Court Act 1930 (ACT) s 90B

Court Procedure Rules 2006 (ACT) r 5606

Cases Cited:

Dalton v The Queen [2015] ACTCA 48

Leighton v The Queen [2017] ACTCA 55

O'Brien v The Queen [2015] ACTCA 47

Parties:

Jeremy Schwalm (Appellant)

The Queen (Respondent)

Representation:

Counsel

Self-represented (Appellant)

R Christensen (Respondent)

Solicitors

Self-represented (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 3 of 2019

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Burns J

Date of Decision:         23 January 2019

Case Title:  R v Schwalm

Citation: [2019] ACTSC 35

THE COURT:

Introduction

1. This is an appeal by Mr Jeremy Schwalm against the severity of six sentences of imprisonment imposed upon him by Burns J on 23 January 2019. The offences on the indictment comprised one count of aggravated burglary (due to being in company) and two counts of theft. The remaining offences were for summary charges transferred to the Supreme Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT), being two counts of damaging property, and one count of possessing property reasonably suspected of being stolen or otherwise unlawfully obtained (goods in custody).

1. At the time of sentence, only 19 days in custody were attributable to these offences because of another prison sentence imposed in the Magistrates Court to be served between 6 July 2018 and 5 January 2019 (5 July 2018 and 6 to 23 January 2019).  The primary judge backdated the commencement of these sentences to half way through that prior sentence, 6 October 2018, to take into account totality.  The aggregate sentence imposed was for two years and eight months, starting on 6 October 2018, with a non-parole period of 21 months.  The last of the sentences ends on 5 June 2021, with the non-parole period expiring on 5 July 2020. 

1. The primary judge accepted that all pleas were entered at an early time, found that they had a very significant utilitarian value, and reduced the sentences that would otherwise have been imposed by approximately 25 per cent.

The facts

1. The full statement of facts that was before the primary judge described Mr Schwalm’s conduct as follows (at [10] to [18]):

On 4 July 2018, in the early hours of the morning, the offender and another unknown male offender went to the Wayfarer Apartments, 20 Eastern Valley Way, Belconnen.

At about 2:35am the two offenders entered the Wayfarer Apartment through the front doors.  They did so and remained therein for about 2 hours with the purpose of committing theft (Aggravated Burglary – CC2018/8705).

The offenders proceeded to the carpark of the apartment block, gaining entry…