R v Sheather

[2021] ACTSC 290

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Sheather (No 3)
Citation:	[2024] ACTSC 86
Hearing Date:	18 March 2024
Decision Date:	2 April 2024
Before:	Christensen AJ
Decision:	See [45].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – damage property – common assault – aggravated burglary – s 80ZE cancellation of Drug and Alcohol Treatment Order – imposition or resentence – rehabilitation –
Good Behaviour Order
Legislation Cited:	DPP v Booth (No 2) [2024] ACTSC 64
R v Cook (No 2) [2024] ACTSC 27
R v Sheather [2021] ACTSC 290
Cases Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12A, 80ZE
Crimes Act 1900 (ACT) s 26
Criminal Code 2002 (ACT) ss 310, 312, 403
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 Number:	SCC 124 of 2021 SCC 125 of 2021
CHRISTENSEN AJ:
Introduction

1.       Daniel Sheather comes before the Court for finalisation of his proceeding following the

cancellation of a Drug and Alcohol Treatment Order (Treatment Order) in September

2022.

2.       The offences the subject of the original sentence and the Treatment Order were

committed on 28 December 2020 and involve acts of aggravated robbery, aggravated

burglary, property damage and common assault.

Background

3.       Mr Sheather was originally sentenced by Murrell CJ on 5 November 2021: R v Sheather

[2021] ACTSC 290 (R v Sheather). The totality of the sentence imposed was 37 months

imprisonment, with the sentence of imprisonment suspended under the custodial part of

the Treatment Order pursuant to s 12A(3) of the Crimes (Sentencing) Act 2005 (ACT)

(Sentencing Act) from 5 November 2021 for a period of two years.

4.       The Treatment Order was cancelled almost one year into the suspension of the custodial

part of the Treatment Order on 8 September 2022. Mr Sheather was remanded in

custody and undertook the Solaris Therapeutic Community Program.

5.       Following the successful completion of that program, Mr Sheather was granted bail on

20 December 2022. He was returned to custody for a period of 12 days between the

grant of bail and the date of sentence.

Imposition or Resentence

6.       The review proceedings commenced on 2 September 2022 when the Crown brought a

cancellation application on the basis that Mr Sheather was unwilling or unlikely to comply

with a condition of the Treatment Order and that continuation would likely not achieve

the objects of the Treatment Order.

7. On 8 September 2022, the Treatment Order was cancelled pursuant to s 80ZE of the

Sentencing Act.

8.       The review process now continues, with the Court to engage initially in a decision as to

whether to impose the suspended portion of the original sentence or to resentence Mr

Sheather. Being a cancellation pursuant to s 80ZE(1) of the Sentencing Act, as set out

in R v Cook (No 2) [2024] ACTSC 27 at [10]:

a preliminary consideration is the extent to which there was compliance with the treatment and supervision part of the order. Having considered that, the court then turns to consider if it is appropriate in the circumstances to resentence. If it is not, the suspended portion is imposed.

1. As to how the extent of compliance informs the court’s discretion, Hopkins AJ in DPP v

   Booth (No 2) [2024] ACTSC 64 at [28]-[29] explained:

   The greater the degree of compliance with the treatment and supervision part of the
   Treatment Order, the more likely it will be that a resentence is appropriate.

   In contrast, a high degree of non-compliance will ordinarily result in the imposition of the suspended sentence of imprisonment.

Extent of Compliance

1. The extent of Mr Sheather’s compliance with the Treatment Order can be described,

   overall, as poor.

11.     There were early positive testing results, albeit that is not unexpected at the early stages

of the rehabilitation program. Use of illicit substances did continue, as well as lack of

engagement with counselling. Other acts of non-compliance in terms of negative

behaviours and breaches of curfew occurred. An opportunity for participation in a

residential rehabilitation facility was not successful and Mr Sheather absconded from the

program, and the court for a number of days.

12.     Mr Sheather was afforded a further opportunity that had him reside with his father and

engage in work while another residential rehabilitation was arranged. Mr Sheather did

not complete that program and was exited for reasons including poor conduct towards

staff and poor participation in programs. He was returned to custody.

13.     The high degree of non-compliance with the Treatment Order tends towards imposition

of the portion of the custodial part of the Treatment Order.

Appropriate to Resentence

14.     However, there are matters that for Mr Sheather ultimately weigh in favour of it being

appropriate to resentence. There has been a delay of almost 19 months since the

cancellation of the Treatment Order. That period of time has involved Mr Sheather

continuing to make progress towards rehabilitation and it is appropriate that this is

reflected in a sentence order.

15.     In addition, there has been a lengthy period of time since the offending in December

2020, some three years and three months. During this time, Mr Sheather has not

re-offended. This should be considered favourably for Mr Sheather as it suggests

progress towards rehabilitation.

16.     The Crown and the defence representative recognise these factors and submit that

resentencing is appropriate in the circumstances. Resentencing Mr Sheather enables an

opportunity for the sentence order to reflect Mr Sheather’s current subjective

circumstances, while also ensuring that the sentence now to be ordered meets the other

purposes of sentencing.

Resentence

17.     The applicable maximum penalties for the charges that were the subject of the Treatment

Order, and accordingly for resentence, are:

(a) aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal

Code) with a maximum penalty of 25 years and/ or 2500 penalty units;

(b) damage property contrary to s 403 of the Criminal Code with a maximum penalty

of 10 years imprisonment and/ or 1000 penalty units;

(c) aggravated burglary contrary to s 312 of the Criminal Code with a maximum

penalty of 20 years imprisonment and/ or 2000 penalty units; and

(d) a transferred summary charge of common assault contrary to s 26 of the Crimes

Act 1900 (ACT) with a maximum penalty of 2 years imprisonment.

18.     At the time of the original sentence, Mr Sheather was also sentenced for a breach of a

good behaviour order for an offence of failing to stop a vehicle for the police. The breach

was found proved and no action taken. This breach does not form part of the eligible

offences for the Treatment Order and accordingly does not form part of the resentence.

It is, however, relevant to take into account when determining the appropriate resentence

that Mr Sheather was on a good behaviour order at the time of the offending.

Nature and Circumstances of the Offences

19.     The facts of the offending are set out in detail in the original sentence decision: R v

Sheather at [5]-[29].

20.     In summary, Mr Sheather was at the home of an associate, who is the first victim in this

matter, and Mr Sheather began to exhibit dysregulated behaviour. Mr Sheather stabbed

a knife into a hallway door. The victim attempted to calm him but was unable to do so.

While Mr Sheather was being hugged by the victim who was attempting to reassure him,

Mr Sheather held the knife near to the victim’s throat, causing the victim to fear for his

life. Mr Sheather was then released from the hold, and he continued to walk around the

house while waving the knife.

21.     Mr Sheather then approached the victim while holding the knife and demanded his wallet,

phone, car keys and jewellery. The victim complied, and then told Mr Sheather to leave.

Mr Sheather retrieved a frypan from the kitchen and ran towards the victim. Using the

frypan, he hit the victim on the front right side of his head. Shortly after, Mr Sheather

placed a hand around the victim’s neck, temporarily inhibiting his breathing.

22.     Mr Sheather walked to a nearby house on the same street. Two families were inside,

including a total of five children. Mr Sheather came to be standing inside the front door.

He was holding a pair of shoes that belonged to one of the children and holding a phone.

One of the victims from this part of the offending asked for the shoes. Mr Sheather

remained silent and complied. He was asked to leave. Instead, Mr Sheather pushed past

one of the victims and went into the house. An adult female began to scream, telling him

to leave.

23.     He did not do so. Rather, he proceeded through the house, moving his hands in what

was described as a “breaststroke motion”. He picked up a phone, but then put it down

when asked. He picked up various items including a bottle of cola, which he threw on the

kitchen bench, and a piece of pizza, from which he took a bite before throwing it on the

ground.

24.     He picked up a knife and used it to threaten one of the adult males in this house, waving

the knife and telling him to get away. Mr Sheather then picked up a set of car keys and

went to the garage. He searched through two vehicles, before returning into the house,

and thereafter coming to be outside of the house.

25.     His associate, having heard screaming, came outside of the second house and saw Mr

Sheather on the street. He yelled at him, telling him to stop. Mr Sheather approached

this victim and demanded he give him all of the property that he had on him. In a

continuation of the earlier aggravated robbery involving this victim, Mr Sheather yanked

a chain from the victim’s throat. The victim then ran away and was briefly pursued by Mr

Sheather.

26.     Mr Sheather then came to be standing at the top of a driveway. He was agitated and

muttering to himself. He put a knife and a wallet into a mailbox and dropped a hunting

style knife near the top of the driveway.

27.     Police arrived and chased him. He ran back to his associate’s home. Force was required

to detain and arrest Mr Sheather.

28.     The facts from the original sentence decision include that Mr Sheather’s associate

considered that he was in a drug-affected and/ or psychotic state. Murrell CJ observed

that Mr Sheather displayed “irrational behaviour” (at [33]) and that the offender was “heavily affected by illicit substances at the time” (at [34]). Her Honour describes that “his

bizarre behaviour would have been particularly frightening to the victims” (at [40]).

29.     As Murrell CJ observed, the offending involved the use of a knife and there were acts of

actual violence, including threats with the knife, and an assault using a frypan to the head

(at [33]-[43]). The offending was impulsive and poorly planned (at [34]). I otherwise

observe, as also observed by her Honour, the property taken was of limited financial

value, but of significant personal value. The property was recovered.

30.     The offending occurred in the victims’ homes at a time when occupants were likely to be

present. A Victim Impact Statement was provided at the original sentence hearing, and

this statement makes plain the effect on all of the family including the children. The

children experienced nightmares, and many family adjustments were necessary to

provide support to the children. One victim describes that the “incident affected our whole

family physically, mentally and professionally”. It can be expected that, even with the

passage of time since these offences, that the victims still to this day feel the effects of

Mr Sheather’s behaviour on this night.

Subjective Circumstances

31.     The subjective circumstances of Mr Sheather are also set out in detail in the original

sentencing decision: R v Sheather at [44]-[50]. This includes, at [50], that a work

colleague, who had known Mr Sheather for ten years, describes that Mr Sheather:

had developed a crippling drug habit that had taken over his life, causing him to behave in a manner that was contrary to his usual character. Usually he was a kind, honest and non-

violent person … on several occasions [Mr Sheather] had expressed remorse and

embarrassment for his actions.

32.     Mr Sheather was 22 years of age at the time of the offending. He is now 25 years of age

as at the time of resentence. He has, as observed above at [14], engaged in various

forms of rehabilitative efforts since the cancellation of the Treatment Order. This has

included completion of the Solaris Therapeutic Community Program and engagement

with some of the Matrix program and the Arcadia House day program.

33.     On 21 June 2023, Mr Sheather entered the Arcadia House residential rehabilitation

program, with the information available to the Court suggesting that he was discharged

from that program in mid-July 2023. In November 2023, Mr Sheather graduated from

phase one of the Calvary Riverina Drug and Alcohol Centre program.

34.     The results of urinalysis testing since December 2023 have consistently been negative

for all tested substances. Mr Sheather is engaging with a psychiatrist for assessment and treatment of Attention Deficit Hyperactivity Disorder, and he has engaged in

counselling and will be continuing to do so.

35.    As also already observed above at [15], Mr Sheather has not re-offended since

December 2020. Prior to these offences, he had only one minor episode of offending,

which related to failure to stop for the police and driving under influence committed

between August and October 2020. In relation to these offences, in addition to fines and

disqualification, the Magistrates Court sentenced him to a good behaviour order, which

he breached in the episode of offending subject to resentence now before this Court.

36.     At the time of resentence, Mr Sheather is working with his father in the construction

industry. He has obtained a certification in crane operation. He continues to reside with

his father in what is a pro-social and supportive environment.

Resentence Determination

37.     It is plain from the nature and circumstances of the offending that addressing his illicit

substance abuse and mental health is the means to ensure that Mr Sheather does not

re-offend and that ultimately will best achieve community protection. The focus on

addressing these matters since the original offending has proved the effectiveness of

this approach, with there having been no re-offending.

38.     But it remains that these were serious offences that would have been an extremely

frightening experience for the victims, with protracted acts of violence committed in their

homes. Denunciation of the conduct, as well as accountability and deterrence are

relevant.

39.     I am readily satisfied that no sentence other than one of imprisonment is warranted, and

no submission is made contrary to that conclusion.

40.     Determining the periods of that imprisonment is informed by current sentencing practice,

with the original sentence orders informative as to that. The totality of the sentences to

be imposed is also relevant. As is a sentence order that reflects the progress towards

rehabilitation and one that supports continued rehabilitation, taking into account that Mr

Sheather has already engaged with community-based supervision for a relatively lengthy

period.

41.     In addition, Mr Sheather pleaded guilty to these offences at the criminal case conference

stage. As found in the original sentence decision, a discount of approximately 15 per

cent is appropriate: R v Sheather at [2].

Other considerations

42.     I conclude that the appropriate starting points in respect to the terms of imprisonment

are those as initially determined by Murrell CJ. That is, a total of 40 months imprisonment.

43.     However, it is appropriate that those terms are reduced to take into account the periods

of time spent in residential rehabilitation, including before the original sentence, during

the Treatment Order, and subsequent to it. In addition, there have been periods of

onerous bail conditions that have required ongoing rehabilitation engagement. The terms

of imprisonment to be imposed will be reduced to reflect periods of time spent under

what has been essentially a form of sentence order. The starting date for the sentences

will reflect the time spent in custody prior to, during, and after the Treatment Order, being

a total of 238 days.

44.     It is appropriate that the total term of imprisonment is partially suspended, with ongoing

supervision by way of a good behaviour order, from today. A return to a custodial setting

at this time would be entirely detrimental to Mr Sheather’s progress towards

rehabilitation, with any disruption to that progress ultimately detrimental to the

community.

Orders

45.     For those reasons I make the following orders:

(1)	The cancellation of the Drug and Alcohol Treatment Order dated 4 November
2021 is confirmed.
(2)	The conviction of Daniel Nicholas Sheather of aggravated robbery (CAN
1722/2021) is confirmed and a sentence of 22 months imprisonment is
imposed to commence on 8 August 2023 and end on 7 June 2025.
(3)	The conviction of Daniel Nicholas Sheather of damage property (CAN
14715/2020) is confirmed and a sentence of 1 month imprisonment is imposed
to commence on 8 August 2023 and end on 7 September 2023.
(4)	The conviction of Daniel Nicholas Sheather of aggravated burglary (CAN
14712/2020) is confirmed and a sentence of 20 months imprisonment is
imposed to commence on 8 December 2024 and end on 7 August 2026.
(5)	The conviction of Daniel Nicholas Sheather of common assault (CAN
14718/2020) is confirmed and a sentence of 4 months imprisonment is
imposed to commence on 8 August 2023 and end on 7 December 2023.
(6)	The sentence of 36 months imprisonment is suspended from today, 2 April
2024, to 7 August 2026.
(7)	Daniel Nicholas Sheather is 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) from 2 April 2024 for a period of 28 months 6
days until 7 August 2026 with the following additional probation conditions that
he accept the supervision of the Commissioner of ACT Corrective Services or
his delegate for the period of the undertaking or such lesser period as the
person supervising him consider appropriate and obey all reasonable
directions of the person supervising him.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen

Associate: J Liu

Date: