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ACTACTCA

Schwalm v R [2012] ACTCA 43

[2012] ACTCA 43

Court of Appeal (ACT)|2012-10-30|Before: Refshauge ACJ, Burns JJ, Nield AJ

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At a glance

Source facts

Court

Court of Appeal (ACT)

Decision date

2012-10-30

Before

Refshauge ACJ, Burns JJ, Nield AJ

Source

Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

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:

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

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.
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.
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.
On 2 April 2012, he was granted bail pending the hearing of the appeal. On 27 July 2012, his appeal was heard by Nield AJ. His Honour dismissed the appeal. He noted that the prosecutor advised that Mr Schwalm’s sentence would continue until 14 December 2012.
Mr Schwalm has now appealed to this Court against the dismissal of the appeal. Again, he has prepared the matter himself and has represented himself on the appeal.
Mr Schwalm appeared for himself on the hearing of the appeal in the Supreme Court. He seemed somewhat confused about what was happening. He said to the learned judge, “I didn’t commit the offence, so why should I go to jail?”. He had pleaded not guilty in the Magistrates Court but the learned magistrate had found him guilty.
The learned judge asked him whether he was appealing against his conviction, but he said clearly, “I was going to originally but then I’ve been advised not to, just appeal against the severity of the sentence.” Ultimately he said, “I do believe the burglary is appropriate” and it appears he was ultimately only appealing against the sentence for theft.
He relied on the fact that, since he had been sentenced for other matters on 15 July 2011, he had been “behaving himself”. His argument seemed to be that “[e]very time I’m released and I’m behaving myself they come along and snap me up for an old charge”. That the charge was “an old charge” did not mean that an appropriate sentence for it should not be imposed. He had, however, a large number of prior convictions, which, of course, denied him much leniency.
He also noted that his father was ill. He has severe back pain requiring analgesics, and Mr Schwalm assists him in various ways. No Pre-Sentence Report was prepared in this case. Ordinarily, of course, it is appropriate that a Pre-Sentence Report be prepared when there is a real risk that an offender will be sentenced to imprisonment.
The learned judge indicated that in his view the sentences were appropriate. Indeed, he considered they were lenient and dismissed the appeal. Again, Mr Schwalm prepared his own notice of appeal to this Court. It is not entirely clear on what basis the appeal was made. In argument before us, however, he did raise some of the issues that he had raised before Nield AJ.
I am sympathetic to the challenges that the sentence presents in relation to Mr Schwalm’s father, but the Court is only entitled to intervene if error is shown, and it is not simply a matter of revisiting the sentence in the light of the facts as now known.
The offences were serious offences. Burglary is a common offence and theft deprives people of their property, for which they have worked hard to gain money to purchase. It is unfortunate that these offences are old offences and that Mr Schwalm is now paying the penalty at a time when, as he says, he has been dealt with for other offences and has been “behaving himself”, but that is not in itself an error.
Mr Schwalm also complained that he was charged with theft under s 308 of the Criminal Code 2002 (ACT) and not minor theft. The Federal Court in Lawson v Gault (2002) 125 FCR 1 has made it clear that the prosecution has a discretion in relation to which charge to prefer, and that the Court has no role to intervene in those circumstances. See also s 321(3) of the Criminal Code which makes the position quite clear.
Accordingly, in my view no error has been made out in the way in which Nield AJ approached the matter.
There is one matter, however, that calls for appellate intervention. When Mr Schwalm filed his notice of appeal from the sentences of the Magistrates Court, his sentences were, by operation of s 216 of the Magistrates Court Act 1930 (ACT), stayed, even though he remained in custody until he was granted bail on 2 April 2012.
Despite the appeal having been dismissed, the Court has power to direct that the time spent in custody is to count as imprisonment served under the sentence: see Hadba v The Queen (2004) 146 A Crim R 291. This is regularly done: see Re Osman (2010) 244 FLR 397 at 400; [17]–[19]. The learned appeal judge did not make an express order to that effect, but it would appear from his acceptance of the prosecutor’s statement of the end date of the sentence, which takes into account that period, that he did not intend that the relevant period not be taken into account.
It is important, however, that there be an order that the period be taken into account so that the statutory effect of s 216 of the Magistrates Court Act not apply. Accordingly, I would allow the appeal to the extent of ordering that the period of 22 January 2012 to 2 April 2012, during which Mr Schwalm was in custody on remand, be taken to be part of the serving of the sentence of imprisonment. Otherwise I would dismiss the appeal.
Mr Schwalm, the effect of that is that you will finish your sentence on, I understand, 14 December 2012, and then you will be released.

Schwalm v R [2012] ACTCA 43 | Case summary | Zoe