R v Schmalz [2019] NSWDC 775

R v Schmalz [2019] NSWDC 775

The objective seriousness of the aggravated break, enter and steal, the escalated confrontation with the occupants, use of a broomstick and chain with padlock, resistance to police, and the offender's serious criminal antecedents required full-time imprisonment, separate indicated sentences and some accumulation. However, his early guilty plea, remorse, Aboriginal background, childhood deprivation and abuse, mental health problems, institutionalisation, and need for staged supervised rehabilitation reduced moral culpability and justified special circumstances. Applying totality, the Court imposed an aggregate sentence of four years imprisonment with a non-parole period of two years.

Jurisdiction
Australia
Judgment Date
20 September 2019
Procedural Posture
Criminal Sentence / Sentence Following Guilty Pleas
Outcome
Aggregate sentence of four years imprisonment with a non-parole period of two years.
Legal Topics
['aggravated Break, Enter and Steal' 'armed With Intent to Commit Indictable Offence' 'resist Officer in Execution of Duty' 'goods in Custody' 'form 1 Offence' 's 166 Certificate' 'standard Non Parole Period' 'special Circumstances' 'aboriginal Offender' 'mental Health' 'drug Dependence' 'institutionalisation' 'community Protection' 'rehabilitation']
['criminal Law' 'sentencing'] ['aggravated Break, Enter and Steal' 'armed With Intent to Commit Indictable Offence' 'resist Officer in Execution of Duty' 'goods in Custody' 'form 1 Offence' 's 166 Certificate' 'standard Non Parole Period' 'special Circumstances' 'aboriginal Offender' 'mental Health' 'drug Dependence' 'institutionalisation' 'community Protection' 'rehabilitation']

Case Brief

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Procedural Posture

Criminal Sentence / Sentence Following Guilty Pleas

Legal Issues

  1. 1 ['What sentence should be imposed for aggravated break, enter and steal, armed with intent to commit an indictable offence, resist officer in execution of duty, and goods in custody.' "How the Court should assess the objective seriousness of the home entry, confrontation with occupants, use of items as weapons, resistance to police, and possession of another person's licence." "How the offender's Aboriginal background, childhood disadvantage, sexual abuse, mental health problems, drug use, institutionalisation, remorse, and early guilty plea should affect sentence." 'Whether special circumstances should be found to allow a longer period of supervised parole and support on release.']

Ratio Decidendi

The objective seriousness of the aggravated break, enter and steal, the escalated confrontation with the occupants, use of a broomstick and chain with padlock, resistance to police, and the offender's serious criminal antecedents required full-time imprisonment, separate indicated sentences and some accumulation. However, his early guilty plea, remorse, Aboriginal background, childhood deprivation and abuse, mental health problems, institutionalisation, and need for staged supervised rehabilitation reduced moral culpability and justified special circumstances. Applying totality, the Court imposed an aggregate sentence of four years imprisonment with a non-parole period of two years.

Court Disposition

Aggregate sentence of four years imprisonment with a non-parole period of two years.

Orders

  • ['The offender is convicted in relation to each matter.' 'Count 1, aggravated break, enter and steal: taking into account the matter on the Form 1, an indicated sentence of 3 years 4 months with a non-parole period of 1 year 8 months.' 'Count 2, armed with intent commit indictable offence: an indicated sentence of 1...