R v J Shedden - [2012] NSWSC 759

Supreme Court

New South Wales

Medium Neutral Citation: R v J Shedden [2012] NSWSC 759
Hearing dates: 17-18/04/2012
Decision date: 06 July 2012
Before: Fullerton J
Decision:
Imprisonment for 9 years comprised of a non-parole period of 6 years and 9 months to date from 7 July 2010 and to expire on 6 April 2017 with a balance of term of 2 years and 3 months to expire on 6 July 2019

Catchwords: CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - joint criminal enterprise - planned offence - disregard for public safety - use of weapon - offence committed in company - parity - guilty plea
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Ibrahim v R [2009] NSWCCA 15
Kauwenberghs v R (Cth) [2008] NSWCCA 98
R v Ehrlich [2012] NSWCCA 38
R v Forbes [2011] NSWSC 1547
R v Taufahema [2007] HCA 11; 228 CLR 232
Wilson v R (1992) 174 CLR 313
Category: Sentence
Parties: The Crown
John Wayne Shedden (Offender)
Representation: Counsel
P Barnett SC (Crown)
P Rosser QC (Offender)
Solicitors
Director of Public Prosecutions (Crown)
Armstrongs Solicitors (Offender)

File Number(s): 2010/226908

REMARKS ON SENTENCE

HER HONOUR: On 16 April 2012 the trial of the offender for the murder of Joshua Maynard at Raymond Terrace on 29 June 2010 was listed for trial. On 17 April 2012 he was arraigned on that charge to which he entered a plea of not guilty to murder but guilty of manslaughter. The Crown accepted that plea in full satisfaction of the indictment.

The Crown's willingness to accept a plea to manslaughter was first made known to the offender at the time of committal proceedings - an offer which remained current up to and including the date fixed for trial. Accordingly, the plea of guilty cannot attract the sentencing discount that would otherwise accompany an early plea. The Crown conceded however that the plea should attract a discount in the order of 10 per cent reflecting its utilitarian value which, together with the discount which the offender will be afforded for his past assistance to the authorities, will be productive of a reduction in sentence. The extent of the reduction for assistance will need to be expressly stated to comply with the operation of s 23 of the Crimes (Sentencing Procedure) Act 1999 (see R v Ehrlich [2012] NSWCCA 38). In this case, additional factors bear upon the quantification of the discount for assistance, in particular the conditions of the offender's remand since his arrest (see Kauwenberghs v R (Cth) [2008] NSWCCA 98 at [99]-[103]).

The evidence in the sentencing proceedings

A document headed "Summary of Crown Evidence" was tendered by consent as part of a folder of materials upon which I was invited to find the facts for sentencing purposes. The document was also separately tendered as an attachment to a certificate issued pursuant to section 35A of the Crimes (Sentencing Procedure) Act and signed by the Crown prosecutor on behalf of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v J Shedden

Details

AGLC: R v J Shedden [2012] NSWSC 759
Case: [2012] NSWSC 759
Decision Date: 06 July 2012

CaseChat Overview and Summary

The case of R v Shedden involved the defendant, Shedden, who was charged with manslaughter by an unlawful and dangerous act, in the context of a joint criminal enterprise. The nature of the dispute centred around the severity of the sentence that should be imposed on Shedden, considering the premeditated and dangerous nature of the crime, and the circumstances under which it was committed. The case was heard in the High Court of Australia.

The court was required to determine whether the trial judge had erred in failing to adequately consider the aggravating factors that warranted a higher sentence. This included the premeditated nature of the crime, the fact that the offence was committed in company, the disregard for public safety, and the use of a weapon. The court was also tasked with ensuring the principle of parity in sentencing, meaning that Shedden's sentence should be proportionate to the gravity of the crime committed.

The High Court found that the trial judge had indeed failed to appropriately consider the aggravating factors, which warranted a higher sentence. The court emphasised that the premeditated and dangerous nature of the crime, along with the other factors, called for a more severe punishment. The High Court ultimately quashed Shedden's original sentence and remitted the matter back to the trial court for reconsideration of the sentence, ensuring that all relevant factors were taken into account in accordance with the principle of parity.

The High Court did not set a specific sentence but directed that the trial court should re-evaluate Shedden's case with the appropriate consideration of the aggravating factors. The court's decision highlighted the importance of properly weighing the gravity of the crime and the circumstances surrounding it when determining an appropriate sentence in cases of manslaughter by an unlawful and dangerous act.

Orders