Schatto v The King [2022] SASCA 129 (2 December 2022)
This was a fairly straightforward case of low-level drug dealing. However it stands out because Mr Schatto was a member of the police force at the time of his offending, in which his former wife, and mother of his four children was involved. The Crown case relied on the validity of a search of the former wife’s vehicle on the basis of a reasonable suspicion. On the voir dire the court found that the search was lawful. Mr Schatto pleaded not guilty. Ms Schatto pleaded guilty.
As far as the court could tell upon sentence, Ms Schatto was the principal offender. Mr Schatto’s role was confined to him providing money to her so she could purchase drugs. The guilty verdict of the jury confirmed that he must have known that some, at least, of the drugs she purchased would be on sold to others. It could not be proven however that the appellant benefited from any proceeds of the drug dealing or that the offending involved a joint enterprise.
Both Mr and Ms Schatto were sentenced by the same judge. He was sentenced to an immediate term of imprisonment of 3 years, 6 months with a non-parole period of 22 months. She was sentenced to imprisonment for 3 years, 4 months and 25 days (Following a discount of 25%) with a non-parole period of 21 months. Unlike Mr Schatto’s sentence, hers was suspended. At the time Mr Schatto had custody of their four children owing to their mother’s drug addiction and was their caregiver.
The issues on appeal to the Court of Appeal
It was argued by Mr Schatto that the sentence imposed on him was too much – it was in legal terms ‘manifestly excessive.’
He further argued that any sentence of imprisonment should have been suspended, as the sentence of his former wife had been.
The outcome
The appeal on sentence was allowed. The court remarked that Mr Schatto’s role as a serving police officer was relevant when assessing the gravity of his offending because the offending represented a serious failure to adhere to his oath to uphold the law and protect the community. His participation in drug trafficking undermined the community’s expectations and confidence in the police force even though his actual offending was not connected with his duty as a police officer.
However, even though the commission of an offence committed by a police officer was more serious by virtue of his office, care had to be taken that the sentence imposed was not more harsh than appropriate. Given the appellant’s otherwise good character and personal circumstances, the court resentenced the appellant to imprisonment for 2 years and 6 months with a non-parole of 18 months. That sentence was suspended as had been the sentence of his ex-wife, the principal offender.
Comments
The court in its judgment referred to the need to avoid the ‘accentuated sensitivity’ which might be caused because of the office held by an offender. In this case, while the offence was more serious because of the office held, the sentence imposed was too harsh.