Schwalm v The Queen

[2012] ACTCA 43

JEREMY SCHWALM v THE QUEEN
[2012] ACTCA 43 (30 October 2012)

APPEAL AND NEW TRIAL – appeal against order of the Supreme Court dismissing appeal against sentence – manifest excess – need to demonstrate error – sentence within range – appeal dismissed.
CRIMINAL LAW – dishonesty offences – where alternative offences available for theft –prosecutorial discretion to prefer charges.
CRIMINAL LAW – sentencing – appropriate circumstances for Pre-Sentence Report order – Magistrates Court Act 1930 (ACT) s 216 – where sentence stayed pending outcome of appeal – time spent remanded in custody may count as imprisonment served under sentence – order required to displace statutory effect of s 216 – appellate intervention justified.

Criminal Code 2002 (ACT), ss 308, 321(3)
Magistrates Court Act 1930 (ACT), s 216

Hadba v The Queen (2004) 146 A Crim R 291
Lawson v Gault (2002) 125 FCR 1
Re Osman (2010) 244 FLR 397

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 30 – 2012
No. SCA 9 of 2012

Judges:            Refshauge ACJ, Penfold and Burns JJ
Court of Appeal of the Australian Capital Territory

Date:               30 October 2012

IN THE SUPREME COURT OF THE       )          No. ACTCA 30 – 2012
  )          No. SCA 9 of 2012
AUSTRALIAN CAPITAL TERRITORY    )
  )
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JEREMY SCHWALM

Appellant

AND:THE QUEEN

Respondent

ORDER

Judge:  Refshauge ACJ, Penfold and Burns JJ
Date:  30 October 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed to the extent that the period of 22 January 2012 to 2 April 2012, during which the appellant was in custody on remand, be taken into account as time served.  Thus, the sentence will end on 14 December 2012.

IN THE SUPREME COURT OF THE       )          No. ACTCA 30 – 2012
  )          No. SCA 9 of 2012
AUSTRALIAN CAPITAL TERRITORY)
  )
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JEREMY SCHWALM

Appellant

AND:THE QUEEN

Respondent

REASONS FOR JUDGMENT

REFSHAUGE ACJ:

1. On 11 January 2012, Jeremy William Schwalm was convicted in the Magistrates Court of offences of burglary and theft alleged to have been committed between 9 and 10 February 2011.  He was sentenced to nine months imprisonment for the offence of burglary and for the theft offence to 12 months imprisonment, to be concurrent with the sentence for the offence of burglary.

2. The sentences were directed to commence on 21 August 2011 to take into account 143 days of pre-sentence custody.  He was also on that date sentenced for another matter, but that has not featured in the subsequent appeals.

3. Mr Schwalm appealed against the sentences on the ground of the severity of the sentences.  He prepared the notice of his appeal himself and, quite properly, it was accepted as claiming that the sentence was manifestly excessive.

4. On…