Schwalm v R [2012] ACTCA 43

Schwalm v R [2012] ACTCA 43 - ACTCA 2012 case summary — Zoe

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

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