R v Schroedl [2001] ACTSC 76 (15 August 2001)

Last Updated: 4 May 2002

The Queen v Frank Joseph Schroedl

[2001] ACTSC 76 (15 August 2001)

CATCHWORDS

SENTENCING - Co-offenders sentenced separately after pleas of guilty - agreed statement of facts about offender sentenced first casts blame on other offender - other offender when sentenced gives acceptable evidence blaming offender sentenced first - court obliged to sentence each offender on inconsistent factual bases.

SENTENCING - parity of sentence - co-offender gets discount for promising to give evidence against offender - offender pleads guilty - offender not entitled to discount.

Crimes Act 1900, ss 429, 429A, 451

Nos. SCC 213 of 2000 and SCC 15 of 2001

Judge: Miles CJ

Supreme Court of the ACT

Date: 15 August 2001

IN THE SUPREME COURT OF THE )

) No. SCC 213 of 2000

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 15 of 2001

THE QUEEN

v

FRANK JOSEPH SCHROEDL

ORDER

Judge: Miles CJ

Date: 15 August 2001

Place: Canberra

THE COURT ORDERS THAT:

1. On the first indictment the offender is sentenced to four years' imprisonment to date from 4 November 2000.

2. On the second indictment the offender is also sentenced to four years' imprisonment, two years of which are to be concurrent, and two years of which are to be cumulative on the sentence on the first indictment.

3. A non-parole period of two and a half years which will also date from 4 November 2000 is fixed.

1. On 14 August 2001 Frank Joseph Schroedl pleaded guilty to a count on an indictment dated 26 March 2001 that he committed an armed robbery on 2 October 2000. He also pleaded guilty to a count on another indictment dated 26 June 2001 that he was knowingly concerned in another armed robbery committed by Anna Jabas on 1 November 2000.

2. The facts of the offences are, on the face of it, similar to many of the armed robberies with which this Court is sadly familiar; the use of a knife to force a young sales assistant in a suburban supermarket to hand over the contents of the cash till for the purpose of purchasing heroin.

3. The first robbery was committed by the offender on his own in broad daylight. It yielded $830 which was used to buy heroin which he shared with Ms Jabas.

4. The second robbery was also committed in broad daylight but this time it was his partner, Ms Jabas, who went in with the knife. The sales assistant was alone and during the robbery she was cut with the knife and afterwards shut in a storeroom. The present offender had previously gone into the shop in the pretence of wanting to buy a loaf of bread, and then telling the assistant that he had no money, and in effect acting as a scout for Ms Jabas. He had earlier than that removed, and later replaced, the number plates on her car. He also hid the scarf and jacket used by Ms Jabas to disguise herself in a drain. That robbery yielded $341. Again they used it to buy heroin that day, after which Ms Jabas took her son to school, and the offender went knocking on doors to offer his services for the mowing of lawns.

5. Ms Jabas made disclosure to the police, I think on 1 November, or soon after. The offender was arrested on 4 November, he made no admissions and was charged and ultimately committed for trial on 15 December 2000. His trial was fixed for 27 June 2001, but two days before that he indicated his intention to plead guilty.

6. In the meantime Ms Jabas had been convicted and sentenced to a wholly suspended term of 3 years' imprisonment. During the sentencing proceedings she indicated her willingness to give evidence for the prosecution in this offender's prospective trial and she was given some discount for that willingness.

7. The present offender is a 39 year old man with a record of no particular significance, except an offence of assault in the Children's Court and another on 9 September 1996, for which he was fined, in the Magistrates Court. He was a heroin addict at the time of the present offences, but as is not unusual, he has no record for the use of illicit drugs at all.

8. According to his own account he had a somewhat disturbed childhood and that no doubt had something to do with his use of alcohol and cannabis in his school years. It may also have had something to do with the break-up of his marriage after 9 years. There are four children of that marriage with whom he is in sporadic contact. I understand that his former wife and one or more of those children were present in court during these proceedings and he has apologised to them for what he perceives as letting the team down.

9. Despite his personal troubles he qualified as a spray painter and ran his own business for several years until, following a personal development course, he studied for and attained a diploma in welfare science. He has worked in that area as well and it is quite possible that in due course he can put his experiences to the use of the general community. Despite the late plea, I am convinced that there is genuine contrition on his part. He appears in some respects to be a complicated personality, emotionally and psychologically.

10. There are two major difficulties in sentencing in this case. The first is that Ms Jabas was sentenced on the basis of a statement of facts which has this man as the dominating force in the later robbery. In contrast, the offender gave evidence before me to the effect that he and Ms Jabas shared a heroin habit and that he tried to dissuade her from carrying out the robbery. He claimed in his evidence that he told her that he entered the shop so that what he did could be captured on video, and if she went ahead they would be caught. As it turned out that is exactly what happened, and once arrested she informed the police of what she knew of his role in both robberies.

11. I am, in the circumstances, inclined to accept his evidence. That means that each of the two offenders is sentenced on a contradictory factual basis in which each gets the benefit of the less inculpatory version of the facts. That is not entirely satisfactory for the public perception of the administration of justice, but where proceedings are split, as they were inevitably as between these two offenders, it is virtually inevitable.

12. The other difficult matter which is not unconnected is the matter of parity of sentence. Jabas entered a plea earlier than this offender, and she also had the benefit of a discrete discount of one year from her sentence for her previous co-operation with the authorities and her promise to give evidence against this offender, which as it has turned out has become unnecessary. Jabas retains the advantage of having got in first with her plea of guilty.

13. These pragmatic factors apart, I would have judged the culpability of each offender as roughly equal as far as the later offence is concerned. As I have said, the discount for the late plea of guilty would be less than would have been the case if it had been entered early. The young victims have been waiting, not knowing whether they would be required to give evidence. They were both clearly terrified, and the effect of the offences on them may last well into the future. Ironically, the offender's evidence of how he has come to consider how his own daughter could be exposed to similar dangers goes to show, I think, the genuineness of his remorse regardless of the lateness of the plea of guilty.

14. What distinguishes the sentence imposed on Ms Jabas is that it was wholly suspended. Such an outcome in the present case against this offender is not possible, as I think Mr Doig who appears for him, realistically accepts.

15. Mr Doig submitted that the sentence for the present offender who has been in custody since 4 November 2000 should be suspended after a relatively short period in order to enable him to be released on recognizance and in order to undergo a residential treatment program for his heroin addiction. Mr Doig further submitted that effectual supervision by the Court is preferable to supervision by the parole board. I am not convinced that this is so, and in the case of serious offences and lengthy sentences, supervision by the parole board should be, and is, the norm. And after all, it must be remembered that this offender committed not one but two serious offences, and the overall outcome must reflect the total seriousness of his criminal conduct.

16. I agree that the chances of rehabilitation are positive, and that will be reflected in the relationship between the sentences for the two offences, and in the non-parole period. The first sentence will be backdated for the purpose of reckoning under s 451 of the Crimes Act, and no further reckoning by the Sheriff or the prison authority is required. In my view there is no need to discuss any of the other sentencing principles, or the requirements of the Crimes Act such as s 429 and s 429A. I am aware of them, and I apply them.

17. Stand Frank Joseph Schroedl. On the first indictment you are sentenced to four years' imprisonment to date from 4 November 2000. On the second indictment you are also sentenced to four years' imprisonment, two years of which are to be concurrent, and two years of which are to be cumulative on the sentence on the first indictment. I fix a non-parole period of two and a half years which will also date from 4 November 2000.

18. I am required to explain that to you. It means that there is effectively a total of six years, but you can be released after two and a half years. That is backdated to 4 November 2000. I haven't worked out the exact date of when you could be eligible for parole, it will be actually less than two years from now. Mr Doig can give you some advice about that.

19. When released on parole you will be under the supervision of the parole board. If you commit any further offence your parole will be revoked and you will have to serve the unexpired remainder of the six years, so that's a long time. You must remember that. And if you are in breach of any of your other parole conditions, parole may be revoked in that case also.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Remarks on Sentence herein of his Honour, Chief Justice Miles.

Associate:

Date: 15 August 2001

Counsel for the Prosecution: Mr C Todd

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Mr A Doig

Solicitor for the Defence: Baxter & O'Keeffe - Lawyers

Date of hearing: 14 August 2001

Date of remarks on sentence: 15 August 2001