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R v Shearer

R v Shearer

Case [2020] ACTSC 100 28 April 2020

Jurisdiction

Attempted Robbery

Driving Causing Grievous Bodily Harm

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Shearer
Citation:	[2020] ACTSC 100
Hearing Dates:	11 February 2020 and 21 April 2020
DecisionDate:	28 April 2020
Before:	Mossop J
Decision:	See [130] - [131]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – attempted robbery of vehicles – took a vehicle without consent – culpable driving causing grievous bodily harm – taken to hospital in custody – attempted to escape hospital – took possession of police firearm and discharged firearm – assault occasioning actual bodily harm of a police officer – offender under the influence of methamphetamine at time of offending – long-term user of methamphetamine – offences committed whilst subject to good behaviour orders – significant criminal history – low prospects of rehabilitation – sentence of full-time imprisonment
Legislation Cited:	Crimes Act 1900 (ACT), ss 24, 27(3)(d), 29(4), 160 Crimes (Sentencing) Act 2005 (ACT), s 72 Crimes (Sentencing Administration) Act 2005 (ACT), ss 108(2)(a), 110 Criminal Code 2002 (ACT), ss 44, 309, 318 Drugs of Dependence Act 1989 (ACT), s 171(1)(a) Road Transport (Driver Licensing) Act 1999 (ACT), s 31 Road Transport (General) Act 1999 (ACT), ss 62, 69
Cases Cited:	Brown (aka Davis) v R [2020] VSCA 60 Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 R v BI (No 4) [2017] ACTSC 71 R v Crowley [2004] NSWCCA 256 R v Falls [2004] NSWCCA 335 R v Nozhat (No 2) [2019] ACTSC 81 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pahl (No 2) [2017] ACTSC 155 R v Penisini [2004] NSWCCA 339 R v Potts [2020] ACTCA 12 R v Rappel [2019] ACTCA 11 R v Taouk (1993) 65 A Crim R 387 R v UG [2018] ACTCA 64; 14 ACTLR 70 R v Vickerstaff (No 2) [2019] ACTSC 343 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 Veen v R (No 2) (1988) 164 CLR 465
Parties:	The Queen (Crown) James Shearer (Offender)
Representation:	Counsel A Jamieson-Williams (Crown) J De Bruin (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 24 of 2019 SCC 25 of 2019

Mossop J:

Introduction

The offender, James Shearer, pleaded guilty to the following offences on an indictment dated 6 May 2019:

(a) Four counts of attempted robbery contrary to s 309 of the Criminal Code 2002 (ACT) by virtue of s 44 of the Criminal Code (counts 1, 5, 6 and 7). The maximum penalty is 14 years’ imprisonment, 1400 penalty units or both.

(b) One count of taking a motor vehicle without consent contrary to s 318 of the Criminal Code (count 2). The maximum penalty is five years’ imprisonment, 500 penalty units or both.

(c) Two counts of culpable driving of a motor vehicle causing grievous bodily harm contrary to s 29(4) of the Crimes Act 1900 (ACT)…

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 Shearer

Details

AGLC: R v Shearer [2020] ACTSC 100
Case: [2020] ACTSC 100
Decision Date: 28 April 2020

CaseChat Overview and Summary

The defendant, Shearer, faced the court in relation to a series of serious criminal offences. The charges included taking a vehicle without consent, culpable driving causing grievous bodily harm, attempted escape from lawful custody, assault occasioning actual bodily harm of a police officer, and taking possession of a police firearm and discharging it. These incidents occurred while Shearer was under the influence of methamphetamine and in breach of good behaviour orders, despite having a significant criminal history and low prospects of rehabilitation. The case was heard and determined in the Supreme Court of Queensland.

The primary legal issues before the court were the appropriate sentence for Shearer's multiple serious offences, particularly given his history of drug use, breach of court orders, and the circumstances of each offence. The court also had to consider the impact of Shearer's methamphetamine use on his culpability and whether there were any mitigating factors that should be taken into account. The court needed to balance the need for punishment, deterrence, and rehabilitation in light of the severity and nature of the crimes committed.

In delivering the judgment, the court thoroughly examined the circumstances of each offence and the characteristics of the offender. It noted that Shearer had a substantial criminal history and had committed these offences while under the influence of drugs and in breach of court orders. The court found that there were no substantial mitigating factors that could reduce the seriousness of the offences. It concluded that the offences demonstrated a clear disregard for the safety and rights of others, and that there was a low likelihood of rehabilitation. The court determined that the only appropriate sentence was full-time imprisonment, aimed at protecting the community and deterring future criminal conduct.

The final orders of the court mandated that Shearer be sentenced to full-time imprisonment, reflecting the seriousness of the offences and the need to ensure public safety. The specific details of the sentence, including the length of imprisonment and any parole conditions, were outlined in the court's judgment.

Orders

Orders of the court

See [130] - [131]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Shearer [2020] ACTSC 100

Most Recent Citation

Kuol v Pruckner (No 2) [2020] ACTSC 287

Cases citing this decision · 10 of 10 shown

Director of Public Prosecutions v Nurzynski
[2024] ACTSC 176

…TCA 25 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Peter [2019] ACTSC 22 R v PM (No 2) [2015] ACTSC 358 R v Sharp [2019] ACTSC 175 R v Shearer [2020] ACTSC 100 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 Saga v Reid [2010] ACTSC 59 Taylor v Bowden [2009] ACTSC 13 Thorn v Laidlaw [2005] ACTCA 49 Truong v The Quee…
Director of Public Prosecutions v Smith
[2024] ACTSC 99

…Barrett v The Queen [2016] ACTCA 38 DPP v XK [2023] ACTSC 141 R v Collins (No 2) [2018] ACTSC 294 R v Serena [2019] ACTSC 231 R v Shearer [2020] ACTSC 100 R v Tonna (No 2) [2020] ACTSC 362…
Inglis v Adamson
[2024] ACTSC 4

…lliday [2017] HCA 35; 260 CLR 650 R v PHA [2004] NSWCCA 445 R v Pui Man Liu and Sin Chun Wong (2003, unreported, NSWCCA) R v Shearer [2018] ACTSC 91; 332 FLR 383 Romolo v R [2018] NSWCCA 3 Tran v The Queen [2017] VSCA 346 Warren v Coombes [1979] HCA 9; 142 CLR 531…
DPP v XK
[2023] ACTSC 141 Para 1

…f cases as indicative of a sentencing practice or pattern. They include R v Collins (No 2) [2018] ACTSC 294, R v Serena [2019] ACTSC 231, R v Shearer [2020] ACTSC 100 and Barrett v The Queen [2016] ACTCA 38.…
R v Redmond (No 2)
[2022] ACTSC 295 Para 1

…R v Shearer [2020] ACTSC 100 was referred to by the Crown. There the offender bit the forearm of a police officer during a violent struggle with two officers that occurred when he attempted to escape from custody. The bite broke the skin and scarring was visible when a medical examination was conducted over a month…
R v McColl
[2022] ACTSC 386

…ACTSC 334 R v Richardson [2016] ACTSC 133 R v Ryan (1988) 33 A Crim R 288 R v Serena [2019] ACTSC 231 R v Shearer [2020] ACTSC 100 R v Tonna (No 2) [2020] ACTSC 362 R v Verdins [2007] VSCA 102; 16 VR 269 R v Watson [2021] ACTSC 339 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 R v Woods [2017] ACTSC 17 R v Zamagias [20…
R v Fleury
[2022] ACTSC 103 Para 1

…wever, this is nonetheless an assault on a police officer acting in the course of his duties, comparable to the biting of an officer in R v Shearer [2020] ACTSC 100 ( Shearer ), which was assessed at [73] as being at the upper end of the midrange of objective seriousness. As such, I would place the conduct as appro…
Biddle v Gatherer
[2021] ACTSC 236

…R v QH; R v CR [2020] ACTSC 178 R v Raeyers (Unreported, ACTSC, 26 November 2010) R v Rappel [2019] ACTCA 11 R v Roberts [2020] ACTSC 296 R v Shearer [2020] ACTSC 100 R v Tate (Unreported, ACTSC, 16 December 2010) R v Winters [2019] ACTSC 245 R v Yuen [2019] ACTSC 70 R v Yuen (Unreported, ACTSC, 21 May 2013) TM v K…
R v Antoniak
[2021] ACTSC 228 Para 1

…In R v Shearer [2020] ACTSC 100 ( Shearer ), Mossop J summarised the considerations relevant to assessing the objective seriousness of an offence under s 27(3)(d) of the Crimes Act at [69]:…
Kuol v Pruckner (No 2)
[2020] ACTSC 287 Para 1

…The appellant also drew support from the decision of Mossop J in R v Shearer [2020] ACTSC 100 at [33] and [34]:…

View all 10 citing cases →

Cases cited in this decision · 18 of 18 shown

Brown v The Queen
[2020] VSCA 60 Para 1

…t in any event the existence of the pandemic is a source of additional stress and concern for detainees and their families: see Brown (aka Davis) v R [2020] VSCA 60 at [48].…
The Queen v Potts
[2020] ACTCA 12 Para 1

…isting sentence of imprisonment. As to what constitutes a “primary sentence” and an “existing sentence”, I adopt what I said in R v Potts [2020] ACTCA 12. However, the requirement to establish “special circumstances” before sentences are made concurrent does not apply because each of the police officers was not “a…
R v Vickerstaff (No 2)
[2019] ACTSC 343 Para 1

…exactly how the facts are admitted to constitute the elements of the offence. An example of a case in which this was done was R v Vickerstaff (No 2) [2019] ACTSC 343 at [14]. That was a case which relied upon the joint commission provision of the Criminal Code , and the terms of the statement of facts removed any…
R v Rappel
[2019] ACTCA 11 Para 1

…ot consider that it is necessary, in order to give effect to the statutory policy behind the provision as explained in R v Rappel [2019] ACTCA 11 at [24], to require that the offences be served wholly cumulatively.…
R v Nozhat (No 2)
[2019] ACTSC 81 Para 1

…cts may leave open the making of submissions as to what those facts establish beyond reasonable doubt. An example of such a case is R v Nozhat (No 2) [2019] ACTSC 81. In that case, the issue was at what point during an attempted importation of drugs the offender became reckless as to the possibility of the importe…
R v UG
[2018] ACTCA 64 Para 1

…the impact of the offending upon the victims, rather than supplementing or departing from the agreed statement of facts. As was recognised in R v UG [2018] ACTCA 64; 14 ACTLR 70 at [54], for offences involving an element of causing grievous bodily harm it may be relevant to assess the degree of harm caused to the…
R v Pahl (No 2)
[2017] ACTSC 155 Para 1

…His moral culpability was unaffected by the fact that at the time of the offending he was suffering from substance induced psychosis: R v Pahl (No 2) [2017] ACTSC 155.…
R v BI (No 4)
[2017] ACTSC 71 Para 1

…It is also relevant to take into account that the harm that would have arisen from the completed offence has not arisen: see R v BI (No 4) [2017] ACTSC 71 at [40] point 7.…
Monfries v The Queen
[2014] ACTCA 46 Para 1

…moral culpability of the offender. The approach to aggravating factors identified in Whyte was adopted by the Court of Appeal in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 ( Monfries ) at [89]-[90].…
Cajina v The Queen
[2009] ACTCA 2 Para 1

…o each of the offences involving an attempt I have endeavoured to assess its seriousness consistently with the approach adopted in Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79 at [29], which picks up the approach articulated by Badgery‑Parker J in R v Taouk (1993) 65 A Crim R 387 at 390. That requires the court…
R v Whyte
[2006] NSWCCA 75 Para 1

…nts 3 and 4 involve the driving leading to the grievous bodily harm to the driver and passenger in the flatbed truck. In R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 ( Whyte ) at [216], the New South Wales Court of Criminal Appeal identified as aggravating factors that may exist in an offence of this type a number…
R v Taouk
[2005] NSWCCA 155 Para 1

…with the approach adopted in Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79 at [29], which picks up the approach articulated by Badgery‑Parker J in R v Taouk (1993) 65 A Crim R 387 at 390. That requires the court to consider the chances that the attempt would have succeeded and the seriousness of what was attempted…
R v Falls
[2004] NSWCCA 335 Para 1

…In my view, it is appropriate to sentence the offender on the basis of the agreed statement of facts. I adopt what Howie J said in R v Falls [2004] NSWCCA 335 at [37]-[39] about reliance upon the agreed statement of facts and the desirability that if there is an area of the facts not covered in the statement and tha…
R v Penisini
[2004] NSWCCA 339 Para 1

…it of the community at large, courts accept that the fact that the victim is a police officer is a substantially aggravating factor: see R v Penisini [2004] NSWCCA 339 at [20].…
R v Crowley
[2004] NSWCCA 256 Para 1

…nough, it is for that reason that parties and their legal representatives should carefully check the facts which are being agreed to: see R v Crowley [2004] NSWCCA 256 at [46].…
R v Whyte
[2002] NSWCCA 343 Para 1

…Counts 3 and 4 involve the driving leading to the grievous bodily harm to the driver and passenger in the flatbed truck. In R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 ( Whyte ) at [216], the New South Wales Court of Criminal Appeal identified as aggravating factors that may exist in an offence of this type a number o…
R v Olbrich
[1999] HCA 54 Para 1

…ficient to establish that as a mitigating factor. Instead, it would be necessary to establish that on the balance of probabilities: see R v Olbrich [1999] HCA 54; 199 CLR 270 ( Olbrich ) at [27].…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…as the purposes of sentencing are concerned, clearly this is a case in which the different purposes point in different directions: cf Veen v R (No 2) (1988) 164 CLR 465 at 476. General and specific deterrence, denunciation, community protection and recognition of harm done to the victims are obviously very significan…

Legislation cited in this decision · 7

Crimes Act 1900 (ACT)
160, 24, 27(3)(d), 29(4) 5 mentions
Road Transport (General) Act 1999 (ACT)
62, 69 3 mentions (from Para 1)
Crimes (Sentencing Administration) Act 2005 (ACT)
108(2)(a), 110 2 mentions
Crimes (Sentencing) Act 2005 (ACT)
72 2 mentions (from Para 1)
Drugs of Dependence Act 1989 (ACT)
171(1)(a) 2 mentions
Crimes (Sentence Administration) Act 2005 (ACT)
110 1 mention (from Para 1)
Road Transport (Driver Licensing) Act 1999 (ACT)
31 1 mention