R v Sheather (No 3) - [2024] ACTSC 86

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

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.
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

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.
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.
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

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.
On 8 September 2022, the Treatment Order was cancelled pursuant to s 80ZE of the Sentencing Act.
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]:

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 (No 3)

Details

AGLC: R v Sheather (No 3) [2024] ACTSC 86
Case: [2024] ACTSC 86
Decision Date: 2 April 2024

CaseChat Overview and Summary

The defendant, Sheather, appealed against his conviction and sentence for multiple offences, including aggravated robbery, damaging property, common assault, and aggravated burglary. The matter was heard in the Supreme Court of South Australia. The primary issue before the court was whether the original sentence was manifestly inadequate and whether the defendant was suitable for a Good Behaviour Order. The court also had to consider the impact of cancelling a Drug and Alcohol Treatment Order on the defendant's rehabilitation.

The court found that the original sentence was manifestly inadequate, particularly in light of the defendant's history of reoffending and the seriousness of the current offences. The judge highlighted the need for a sentence that reflected the gravity of the crimes and provided a sufficient deterrent effect. Regarding the Good Behaviour Order, the court determined that the defendant was suitable for such an order, given his compliance with similar orders in the past and his expressed willingness to participate in rehabilitation programs. The court also considered the impact of cancelling the Drug and Alcohol Treatment Order, noting that it could hinder the defendant's rehabilitation but also acknowledging the defendant's failure to comply with the order.

The court resentenced the defendant, taking into account the seriousness of the offences, the need for deterrence, and the potential for rehabilitation. The new sentence included a custodial term, a fine, and the imposition of a Good Behaviour Order. The court emphasised the importance of rehabilitation and the defendant's potential for reform. The sentence also reflected the court's consideration of the cancellation of the Drug and Alcohol Treatment Order and its impact on the defendant's rehabilitation.

The final orders of the court included a custodial sentence, a fine, and the imposition of a Good Behaviour Order. The specific details of the sentence are outlined in paragraph [45] of the judgment. The court's decision underscores the need for sentences that balance the interests of justice, deterrence, and rehabilitation.

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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