R v Taylor Schmidt

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 09 December 2013
• Date: 09 December 2013
• Docket Number: No. SCC 26 of 2012

[2013] ACTSC 295

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SCC 26 of 2012

R

and

Taylor Schmidt

Counsel for the prosecution: Mr J Lundy

Counsel for the defendant: Mr S Gill

Candetti Constructions Pty Ltd v Fonteyn (2010) 108 SASR 429

GAS v The Queen (2004) 217 CLR 198

Iskandar v The Queen [2013] NSWCCA 235

KR v The Queen [2012] NSWCCA 32

Lowe v The Queen (1984) 154 CLR 606

McKenna v The Queen (1992) 7 WAR 455

R v Brilliantes [2013] NSWSC 1693

R v Campbell [2010] ACTCA 20

R v Conway (Unreported, Supreme Court of the Australian Capital Territory, Gallop J, 7 July 1998)

R v Cotterill [2012] NSWSC 89

R v Crowley [2004] NSWCCA 256

R v Eastman (Unreported, Supreme Court of the Australian Capital Territory, Carruthers AJ, 10 November 1995)

R v Gordon (1994) 71 A Crim R 459

R v Hill (1981) 3 A Crim R 397

R v Hillier (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 16 March 2005)

R v Hillsley (2006) 164 A Crim R 252

R v Martin (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 16 October 2013)

R v Massey (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 28 July 2011)

R v McDougall (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 21 July 2011)

R v Olbrich (1999) 199 CLR 270

R v Oliver (1982) 7 A Crim R 174

R v Previtera (1997) 94 A Crim R 76

R v Redenbach (1991) 52 A Crim R 95

R v Reid (2004) 148 A Crim R 425

R v Shepherd (1988) 94 FLR 55

R v Yuen (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 31 May 2013)

Schwalm v The Queen [2012] ACTCA 43

Veen v The Queen (No 2) (1988) 164 CLR 465

Crimes Act 1900 (ACT), ss 12

Evidence Act 2011 (ACT), ss 4(3), 137

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 57, Pt 4, Ch 8

Criminal Code 2002 (ACT), ss 45A, 308, 403

CRIMINAL LAW — Judgment and Punishment — Sentencing — Murder — Theft — Damage property — No issue of principle

CRIMINAL LAW — Judgment and Punishment — Sentencing — Fact finding by sentencing count — Different agreed facts from those agreed for co-offender — Disputed facts

CRIMINAL LAW — Judgment and punishment — Sentencing — Desirability of pre-sentence reports

CRIMINAL LAW — Judgment and punishment — Sentencing — Parity between co-offender

ORDER

THE COURT ORDERS THAT:

• 1. Taylor Schmidt be convicted of the murder of Liang Zhao on 4 August 2011.

• 2. Taylor Schmidt be sentenced to imprisonment for twenty years and six months, to commence on 7 August 2011.

• 3. A non-parole period of fourteen years be set.

• 4. [Redacted for legal reasons].

EX TEMPORE JUDGMENT

1 The taking of a human life is a very serious matter. When done unlawfully, it is the most serious crime; when done senselessly, it is also a tragedy.

2 Now appearing before me for sentence on the charge of murder is Taylor Schmidt, who, on 29 August 2013, pleaded guilty to the murder of Liang Zhao on 4 August 2011. The Director of Public Prosecutions declined to proceed with the second count on the indictment, that Mr Schmidt committed an aggravated robbery on the same day.

3 Murder is a crime under s 12 of the Crimes Act 1900 (ACT), which provides that the maximum penalty for such an offence is imprisonment for life.

4 It can thus be seen that it is, and is to be treated by the courts, as the most serious offence. See R v Oliver (1982) 7 A Crim R 174 at 176.

5 Mr Schmidt was charged expressly by reference to s 45A of the Criminal Code 2002 (ACT), namely, that there was an agreement with Mr Schmidt's co-offender and that the offence of murder was committed in the course of carrying out that agreement, namely that death was caused in the course of robbing Mr Zhao when it was intended to cause him serious bodily harm.

THE PROCEEDINGS

6 Mr Schmidt was arrested on 7 August 2011. He was refused bail and has remained in custody since that date. He appeared in the Magistrates Court on 9 August 2011 and pleaded not guilty. It took some time for the prosecution to prepare its brief which, of course, must be served on an accused person.

7 On 2 February 2012, he was committed to this Court for trial. After the usual pre-trial procedures, the trial was listed to commence on 2 September 2013. As noted above (at [2]), on 29 August 2013, shortly before the trial was to commence, Mr Schmidt pleaded guilty.

8 Mr Schmidt asked me to take into account three further offences, one of theft and two of damaging property, which were set out on a List of Additional Offences. I will do so.

9 Theft is an offence against s 308 of the Criminal Code and attracts a maximum penalty of 1,000 penalty units (that is, a fine of $110,000), or imprisonment for ten years, or both. Damaging property is an offence under s 403(1) of the Criminal Code and renders Mr Schmidt liable for the same maximum penalty, that is, 1,000 penalty units (being a fine of $110,000) or imprisonment for 10 years, or both.

10 In the sentencing proceedings in this court, I was requested, under s 4(3) of the Evidence Act 2011 (ACT), by Mr Schmidt's counsel to make a direction under s 4(2) of that Act, that the proceedings be subject to that Act. I did so.

11 The sentencing required three appearances. The proceedings commenced on 4 September 2013 when an agreed statement of facts and Mr Schmidt's criminal history were tendered by the prosecution and, although the prosecution case had not concluded, a report of Dr Paul Bedford, who conducted a medical examination into Mr Zhao's death, was tendered by Mr Schmidt.

12 On 31 October 2013, I heard oral evidence. The first witness was Mr Michael Pearce, a probation and parole officer of ACT Corrective Services. He gave certain evidence about Mr Schmidt's behaviour whilst in custody. A trauma counsellor with Victim Support (ACT) then read out two Victim Impact Statements, from the mother and the wife of the deceased, Mr Zhao. Photographs of the weapons used and of the deceased were tendered.

13 The prosecution then filed, in Court, with leave, a List of Additional Offences under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT). It is, of course, not evidence, and so was not marked as an exhibit.

14 As required by s 57 of the Crimes (Sentencing) Act, I inquired of Mr Schmidt personally whether he wished me to take into account the offences disclosed on the List. I was satisfied with Mr Schmidt's answers and I will take them into account in the way referred to by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [46]–[50].

15 Through his counsel, Mr Schmidt tendered a number of certificates. A report from Mr Olav Nielssen was sought to be tendered, but the prosecution objected to it. The objection was based on what was said to be unfairness to the prosecution because it reported statements made to Dr Nielssen by Mr Schmidt which could not be tested by the prosecution unless Mr Schmidt was called to give that evidence.

16 The prosecution sought a direction under s 137 of the Evidence Act, limiting the use to which the statements of Mr Schmidt recorded in the report could be put, specifically not for their truth. The proceedings were then adjourned. The proceedings resumed on 25 November 2013 and, after further argument which I do not need to rehearse here, I held that I should admit the Report but give the direction sought. Mr Schmidt, however, then gave evidence and was cross-examined.

17 After submissions I adjourned to consider the sentence to be imposed.

THE FACTS

18 Mr Schmidt was originally indicted jointly with co-offender, JJ. I note that JJ was, at the time, under eighteen years of age and, accordingly, his name is not to be published. Both pleaded guilty shortly before the trial. Both indicated to me that there may be a dispute as to the facts on which the sentences were to be based. Ultimately, it was not necessary in either case for there to be a hearing to determine any dispute as to facts.

19 JJ was, however, sentenced separately, though also by me. The agreed statement of facts, however, in that case was not the same as that which was tendered to me in the proceedings for sentencing Mr Schmidt. Indeed, there were some significant differences. There is no doubt that a sentencing judge is not bound by the statement of agreed facts. That is the result of agreement between the parties. So much was made clear by the High Court in GAS v The Queen (2004) 217 CLR 198 at 211; [31].

20 Nevertheless, it is the responsibility of a sentencing judge who proposes to determine a fact, other than in accordance with such an agreed statement, to bring that to the attention of the parties during the proceeding so that they can deal with it. So much is required by the obligation of procedural fairness. So much flows from what was said in R v Crowley [2004] NSWCCA 256 at [46].

21 That a co-offender may be sentenced on different facts is, even when the offence charged is the same, as in Candetti Constructions Pty Ltd v Fonteyn (2010) 108 SASR 429, is not uncommon though, fortunately, not frequent.

22 Unless the sentencing judge has given an intimation of the kind referred to earlier, the judge should sentence on the facts that are the evidence before him or her as agreed, even if different from those in the proceedings in relation to the co-offender. As Spigelman CJ, with whom Wood CJ at CL, and Howie J agreed, said in R v Reid (2004) 148 A Crim R 425 at 431; [26]–[27]:

A sentencing judge is well able to distinguish the evidence, particularly in the form of an agreed statement of facts, in one sentencing proceeding, and put both those facts and his judgment contained in the remarks on sentence in the prior proceedings out of his or her mind, for the purpose of the subsequent proceedings. A reasonable, independent observer would understand that judicial training does enable that to occur and...