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…

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 Sheather

Details

AGLC: R v Sheather [2021] ACTSC 290
Case: [2021] ACTSC 290
Decision Date: 2 April 2024

CaseChat Overview and Summary

The case of R v Sheather involves the defendant, Sheather, who was charged with various criminal offences including aggravated robbery, damaging property, and common assault, as well as aggravated burglary. The case was heard in the relevant Australian court. Sheather was also subject to a Drug and Alcohol Treatment Order (DAATO), which was cancelled during the proceedings. The primary focus of the case was on the sentence to be imposed on Sheather and the implications of the DAATO cancellation on that sentence.

The court was tasked with determining the appropriate sentence for Sheather given the severity of his criminal conduct, the need for deterrence, and the potential for rehabilitation. A significant issue was the impact of the cancelled DAATO on the sentencing process. The court had to balance the need for punishment with the possibility of rehabilitation, particularly given the defendant's history with substance abuse.

In its reasoning, the court considered the principles of sentencing, focusing on the gravity of the offences committed by Sheather. The court acknowledged the serious nature of the crimes, which included violence and property damage, and recognised the need for a sentence that would deter future criminal behaviour. However, the court also took into account the defendant's personal circumstances, including his history of substance abuse and the potential for rehabilitation. Ultimately, the court determined that while the crimes warranted a significant custodial sentence, the possibility of rehabilitation justified a sentence that allowed for this possibility. The court also noted the importance of ensuring that the sentence reflected the seriousness of the offences while providing a path for the defendant's rehabilitation.

The final orders of the court included a custodial sentence for Sheather, with specific provisions for rehabilitation and monitoring to ensure compliance with any conditions set by the court. The court also made orders relating to the restitution to the victims and the formal cancellation of the DAATO.

Orders

Orders of the court

See [45].

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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