Director of Public Prosecutions v Sheather (No 4)

[2024] ACTSC 403

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Sheather (No 4)

Citation: 

[2024] ACTSC 403

Hearing Date: 

16 December 2024

Decision Date: 

16 December 2024

Before:

Christensen AJ

Decision: 

See [12]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of good behaviour order – breach not a serious example – offender on pathway to rehabilitation – futility in supervision – drain on judicial system resources – resentenced to suspended sentence – good behaviour order imposed – no further supervision

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT) ss 85, 110

Cases Cited: 

R v Bennett [2017] ACTSC 104
R v Sheather (No 3) [2024] ACTSC 86

Parties: 

Director of Public Prosecutions ( Crown)

Daniel Nicholas Sheather ( Offender)

Representation: 

Counsel

G Meikle ( Crown)

C Duffy ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Numbers:

SCC 124, 125 of 2021

CHRISTENSEN AJ: 

Introduction

1․Daniel Sheather is before the Court for a breach of a suspended sentence good behaviour order, following a re-sentence exercise:  see R v Sheather (No 3) [2024] ACTSC 86.

2․There is no dispute that Mr Sheather has breached his good behaviour order.  This is by non-compliance with supervision and by the commission of a further offence.

3․The non-compliance includes a failure to attend all of his scheduled appointments.  There was attendance at some appointments, including critically some appointments for psychological intervention.  And I am informed that in recent times there has been some compliance with scheduled appointments.

4․The further offending that occurred was an offence of drug driving as a repeat offender.  That offence was committed on 3 November 2024.  Mr Sheather was observed to be driving by police, although it was not the manner of his driving that caused them to pull him over.  He came to be tested, and it was found that he had substances of MDMA and methylamphetamine in his oral fluid.

5․While disappointing that such offending has occurred, it was not offending that directly put other community members at risk.  And it is substantially less serious than the original offending the subject of these proceedings.

6․ACT Corrective Services has, with respect to the breach, recommended that the good behaviour order remain in place but that the probation condition that requires supervision be removed. The advice from Corrective Services is essentially that Mr Sheather is unlikely to benefit from continued supervision.  The prosecution does not submit against such a course.

7․Section 110 of the Crimes (Sentence Administration) Act 2005 (ACT) provides that the Court must cancel the good behaviour order where satisfied that there has been a breach of any of the good behaviour obligations. I am so satisfied. Upon cancellation, the Court can either impose the suspended sentence or re-sentence the offender. As already observed, imposition is not pressed.

8․While ordinarily a breach of a suspended sentence warrants denunciation and accountability – and perhaps that is even more so in the circumstances here where there is a ‘breach of a breach’ – the breach that has occurred is not a serious example.  Additionally, a level of deterrence has been affected by one night being spent in custody by Mr Sheather during the course of the suspended term, arising from the further offending.

9․I am satisfied that it is appropriate, in the circumstances, to re-sentence Mr Sheather.  While his compliance with the order has been far from perfect, he does remain on a pathway of rehabilitation.  He is now engaged with a psychiatrist, he continues to have the support of his parents, and there are prospects of employment.

10․There is futility in continuing supervision at this stage, and the drain on resources in attempting to continue supervision is not irrelevant to the Court’s decision: see R v Bennett [2017] ACTSC 104 at [11].

11․The matters that informed the resentence exercise are the same as those that I considered previously, albeit on this occasion there has been further offending.  Nonetheless, I consider it appropriate to resentence in the same manner as previously ordered, other than to remove the probation condition as recommended.  It will be for Mr Sheather to supervise himself from now on and to ensure that he remains of good behaviour. 

Orders

12․The orders of the Court are as follows:

(1)The suspended sentence and good behaviour order made 2 April 2024 is cancelled and Daniel Nicholas Sheather is re-sentenced.

(2)The conviction of Daniel Nicholas Sheather of aggravated robbery (CAN 1722/2021) be confirmed and a sentence of 22 months imprisonment be imposed to commence on 22 April 2024 and end on 21 February 2026.

(3)The conviction of Daniel Nicholas Sheather of damage property (CAN 14715/2020) be confirmed and a sentence of 1 month imprisonment be imposed to commence on 22 April 2024 and end on 21 May 2024.

(4)The conviction of Daniel Nicholas Sheather of aggravated burglary (CAN 14712/2020) be confirmed and a sentence of 20 months imprisonment be imposed to commence on 22 August 2025 and end on 21 April 2027.

(5)The conviction of Daniel Nicholas Sheather of common assault (CAN 14718/2020) be confirmed and a sentence of 4 months imprisonment be imposed to commence on 22 April 2024 and end on 21 August 2024.

(6)The sentence of imprisonment hereby be suspended from today, 16 December 2024 to 21 April 2027, for a period of 2 years, 4 months, and 6 days.

(7)Daniel Nicholas Sheather be required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 2 years, 4 months, and 6 days, from today, 16 December 2024 to 21 April 2027.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen

Associate:

Date: 29 January 2025