Legal Research
Cases
R v Shepheard

R v Shepheard

Case [2008] ACTSC 116 13 October 2008

Type to search within this case.

R v KEITH SHEPHEARD
[2008] ACTSC 116 (13 October 2008)

CRIMINAL LAW AND PROCEDURE – sentence – grooming of a young person – serious offence – s 474.26 Criminal Code Act 1995 (Cth).
CRIMINAL LAW AND PROCEDURE – Victim Impact Statement.
EVIDENCE – statements made to the person preparing a Pre-Sentence Report.

Crime (Sentencing) Act 2005 (ACT), ss 47, 53
Crimes Act 1914 (Cth), s 16(A)
Proceeds of Crime Act 2002 (Cth), ss 48(2), 56, 316
Criminal Code Act 1995 (Cth), ss 474.26, 474.27

R v O’Shana (ACTSC, Refshauge J, 1 August 2008, unreported)
Tector v R [2008] NSWCCA 151
R v Jesson (QSC, Wilson J, 28 February 2008, unreported)
Makarian v R (2005) 28 CLR 357
Director of Public Prosecutors v Prasoeur [2006] VSC 41
Gumbinyarra v Teague (2003) 12 NTLR 226
R v Dowlan [1998] 1 VR 123
Police v Crosbie [2002] SASC 433

R v Rankin [2001] VSCA 158
R v Miller [1995] 2 VR 348

R v MA [2001] NSWCCA 30
R v FD; R V JD (2006) 160 A Crim R 392
R v Slack [2004] NSWCCA 128
R v King (2004) 150 A Crim R 409
Mitchell v The Queen (1998) 20 WAR 257
R v Singh [2006] QCA 71
R v Ali [1996] 2 VR 49
R v O’Neill [1979] 2 NSWLR 582
R v KT [2007] NSWSC 83
R v Leach (2003) 85 SASR 139
Isaacs (1997) 90 A Crim R 587

Chow v Director of Public Prosecutions and Anor (1992) 28 NSWLR 593

R v Harris [1961] VR 236
Sagdic v Gowing (1995) 82 A Crim R 26
Qutami (2001) 127 A Crim R 369
R v Milojevic [2001] NSWCCA 461
Buonocore v R [2006] NSWCCA 159
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Searle (QSC, Lyons J, 15 June 2007, unreported)
R v Budd (DC(NSW), Charteris DCJ, 2 October 2007, unreported)
R v Gajjar (CC(Vic), Millane CCJ, 20 June 2008, unreported)

Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No 2), 2004 (Cth), Explanatory Memorandum

EX TEMPORE JUDGMENT

No. SCC 333 of 2007

Judge: Refshauge J
Supreme Court of the ACT

Date: 13 October 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCC 333 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

R
v
KEITH SHEPHEARD

ORDER

Judge:  Refshauge J
Date:  13 October 2008
Place:  Canberra

THE COURT ORDERS THAT:

The accused be imprisoned for two years and nine months to commence on 14 April 2008.
The accused be released on 14 January 2009 upon entering into a recognizance, himself in the sum of $500 with the following conditions:
(a)he is to be of good behaviour for a period of three years;
(b)he is to submit himself to the supervision of the Chief Executive or his or her delegate, and obey all reasonable directions about sex offender treatment;
(c)he is, on release, to seek to be admitted to a sex offender program and, if admitted, to continue with the program until it is completed.

BY…

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 Shepheard

Details

AGLC: R v Shepheard [2008] ACTSC 116
Case: [2008] ACTSC 116
Decision Date: 13 October 2008

CaseChat Overview and Summary

The appeal by the accused, Shepheard, against his conviction and sentence was considered by the court. Shepheard was convicted of grooming a young person, which included arranging a meeting for the purpose of engaging in sexual activity with the minor. This serious offence was prosecuted under section 474.26 of the Criminal Code Act 1995 (Cth). The appeal focused on the adequacy of the sentence imposed, specifically the length and conditions of the non-parole period.

The legal issues before the court encompassed whether the sentence was manifestly inadequate, considering the gravity of the offence. The court also had to determine if the statements made by the accused to the person preparing the Pre-Sentence Report were properly taken into account. Additionally, the court had to consider the impact of the victim impact statement and its relevance to the sentencing process.

The court found that the sentence was manifestly inadequate due to the serious nature of the offence and the need for general deterrence. It was determined that the initial sentence did not sufficiently reflect the seriousness of the crime, and thus, a more stringent penalty was warranted. The court emphasized the importance of specific deterrence and the protection of the community. In re-sentencing, the court imposed a sentence that included a non-parole period of two years and nine months, with conditions to ensure the accused's rehabilitation and supervision upon release.

The court further noted the relevance of the victim impact statement and the statements made to the Pre-Sentence Report preparer, ensuring these factors were appropriately considered in the final sentence. The orders included imprisonment, conditions for release, and forfeiture of specified property under the Proceeds of Crime Act 2002 (Cth). Each party bore their own costs of the proceedings under this Act.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The accused be imprisoned for two years and nine months to commence on 14 April 2008.

2. The accused be released on 14 January 2009 upon entering into a recognizance, himself in the sum of $500 with the following conditions:

(a) he is to be of good behaviour for a period of three years;

(b) he is to submit himself to the supervision of the Chief Executive or his or her delegate, and obey all reasonable directions about sex offender treatment;

(c) he is, on release, to seek to be admitted to a sex offender program and, if admitted, to continue with the program until it is completed.

BY CONSENT:

3. Pursuant to ss 48(2) and 316 of the Proceeds of Crime Act 2002 (Cth) the property specified in the Schedule be forfeited to the Commonwealth.

4. Pursuant to s 56 of the Proceeds of Crime Act 2002 (Cth) the value of the property is specified as $40.

5. Each party is to pay its or his own costs of and incidental to the proceedings under the Proceeds of Crime Act 2002 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Shepheard [2008] ACTSC 116

Most Recent Citation

R v Childs [2014] ACTSC 382

Cases Citing This Decision

DPP v JJ (No 2) [2024] ACTSC 74
Citation 1

…; 154 A Crim R 40 R v Murray [2016] ACTSC 173 R v Ogilvie (No 2) [2016] ACTSC 265 R v RMW [2016] NSWCCA 211 R v Ridley [2014] ACTSC 382 R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 R v TL [2017] ACTCA 18 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 Saga v Reid [2010] ACTSC 59 Saipani v The Queen [2021] ACTCA 5; 28…
R v West [2023] ACTSC 412
Citation 2 (Para 2)

…e to assess some of the harm done to a victim. The Court can also accept what harms are well known as being caused by certain offences: R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 at 172 [31]. See also R v Childs [2021] ACTSC 170 at [10]-[11].…
R v Porter (No 3) [2022] ACTSC 236
Citation 3 (Para 1)

…osecution noted that the offence has not been the subject of sentencing by this Court. The prosecution submitted that the case of R v Keith Shepheard [2008] ACTSC 116; 189 A Crim R 165 ( Shepheard ) which concerned a commonwealth offence of using a carriage service to procure a child may provide useful guidance.…
R v Shepherd (No 2) [2022] ACTSC 248
Citation 4 (Para 1)

…Impact Statements were available. The Court can understand and accept the general effect of an offence such as this on the victim: R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 at 172; [31].…
Dang v Li [2021] ACTSC 179
Citation 5 (Para 1)

…victim impact statements (as to which see R v Dowlan [1998] 1 VR 123; 92 A Crim R 305 at 140 per Charles JA, cited with approval in R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 at [28]), they “cannot be admitted for the purpose of punishing an offender for an offence of which he has not been convicted”: Hooper…
R v Childs [2021] ACTSC 170
Citation 6

…R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 R v Miller [1995] 2 VR 348; 81 A Crim R 278…
R v Rayfield [2017] NSWDC 174
Citation 7

…Kenna [2015] NSWDC 250 R v Telfer [2016] NSWDC 421 R v Costello [2011] CA 39 Rampley v R [2010] NSWCCA 293 R v Gajjar [2008] VSCA 268 R v Shepheard [2008] ACTSC 116 Category: Sentence Parties: The Crown Alan Rayfield - Offender Representation: Counsel: Mr Preece- Offender Solicitors: Commonwealth Director of Public…
R v Asplund [2010] NSWCCA 316
Citation 8 (Para 20)

…nment for 3 years, to be released on recognizance after serving 1 year and 3 months. Result: CCA: Crown Appeal dismissed. Supreme Court R v Shepheard [2008] ACTSC 116 Offence:1 x using a carriage service to groom a person under 16 years of age for sexual activity: s 474.27(1) of the Criminal Code 1995 [maximum pena…
Rampley v R [2010] NSWCCA 293
Citation 9 (Para 21)

…In R v Shepheard [2008] ACTSC 116 Refshauge J imposed a sentence of 2 years 9 months with an effective non-parole period of 9 months for a breach of s 474.27(1) of the Criminal Code 1995. The offender had entered a late plea of guilty. He had made almost 900 communications and there were multiple instances where po…

See all citing cases →

Cases Cited

Tector v R [2008] NSWCCA 151
Citation 1 (Para 1)

…As was said in Tector v R [2008] NSWCCA 151 at [23] such offences introduced into the Commonwealth Criminal Code in 2004 were “ intended to provide protection for children from what his Honour referred to as soliciting to engage in sexual activity ”.…
R v KT [2007] NSWSC 83
Citation 2 (Para 9)

…tion of the victim impact statement plays is to “ bring home to the offender … the appalling consequences of the offender’s actions ”: R v KT [2007] NSWSC 83 at [61]; R v Leach (2003) 85 SASR 139 at 148-9 . As it was said by the sentencing judge, quoted with apparent approval by the Court of Criminal Appeal, in Te…
Emiliano BUONOCORE v REGINA [2006] NSWCCA 159
Citation 3 (Para 1)

…great caution: R v Milojevic [2001] NSWCCA 461 at [18]-[19]. This perhaps applies particularly with respect to exculpatory statements: Buonocore v R [2006] NSWCCA 159 at [12]-[14].…
R v Singh [2006] QCA 71
Citation 4 (Para 6)

…e the opportunity to cross-examine the victim was not availed of. I must accept that this can be an opportunity not easily taken: R v Singh [2006] QCA 71. I do, however, consider that the statement tendered by the young boy clearly appears to be in the victims own words.…
DPP v Prasoeur [2006] VSC 41
Citation 5 (Para 2)

…ts are not infrequently challenged, for example, because the author is not a victim in the defined sense ( Director of Public Prosecutors v Prassoeur [2006] VSC 41) or that the claimed harm was not caused by the offence: Gumbinyarra v Teague (2003) 12 NTLR 226; R v Dowlan [1998] 1 VR 123.…
Markarian v The Queen [2005] HCA 25
Citation 6 (Para 6)

…s, of course, an important factor to which I must pay careful attention. As was said by Gleeson CJ and Gummow, Hayne and Callinan JJ in Markarian v R (2005) 228 CLR 357 at 372: Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the ma…
R v Slack [2004] NSWCCA 128
Citation 7 (Para 6)

…ation and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim ”: R v Slack [2004] NSWCCA 128 at [62], they are now, however, often in the victim’s own words and can be tested and the opportunity to do so is there. If the opportunity is not taken to t…
Gumbinyarra v Teague [2003] NTSC 25
Citation 8 (Para 2)

…efined sense ( Director of Public Prosecutors v Prassoeur [2006] VSC 41) or that the claimed harm was not caused by the offence: Gumbinyarra v Teague (2003) 12 NTLR 226; R v Dowlan [1998] 1 VR 123.…
Crosbie v Police [2002] SASC 433
Citation 9 (Para 3)

…dentify the use to which the remaining parts of the statement should be put, and the weight that can be given to the material. See Police v Crosbie [2002] SASC 433 at [26].…
Regina v Milojevic [2001] NSWCCA 461
Citation 10 (Para 1)

…This does not of course mean that no weight can be given to such statements but they must be approached with great caution: R v Milojevic [2001] NSWCCA 461 at [18]-[19]. This perhaps applies particularly with respect to exculpatory statements: Buonocore v R [2006] NSWCCA 159 at [12]-[14].…
R v Rankin [2001] VSCA 158
Citation 11 (Para 3)

…and Mr Shepheard can be taken to be likely to have a serious effect on the victim. There are effects that a court can accept as notorious: R v Rankin [2001] VSCA 158 at [9]. Indeed, a court can and often must draw inferences of harm from the facts of a case, even where there is no victim impact statement: R v Mill…
R v MA [2001] NSWCCA 30
Citation 12

…R v MA [2001] NSWCCA 30 R v FD; R V JD (2006) 160 A Crim R 392 R v Slack [2004] NSWCCA 128 R v King (2004) 150 A Crim R 409 Mitchell v The Queen (1998) 20 WAR 257 R v Singh [2006] QCA 71 R v Ali [1996] 2 VR 49 R v O’Neill [1979] 2 NSWLR 582 R v KT [2007] NSWSC 83 R v Leach (2003) 85 SASR 139 Isaacs (1997) 90 A Crim…
Williams v Spautz [1992] HCA 34
Citation 13 (Para 2)

…a hearing as to disputed facts. Any dispute must be resolved in accordance with ordinary principles: Chow v Director of Public Prosecutions and Anor (1992) 28 NSWLR 593 at 605 . Mr Shepheard did not give evidence.…
Mitchell v The Queen [1998] WASCA 334
Citation 14 (Para 6)

…in an appropriate case, assist the court to give them appropriate weight: R v King (2004) 150 A Crim R 409 at 441-443; Mitchell v The Queen (1998) 20 WAR 257 at 266. In this case the opportunity to cross-examine the victim was not availed of. I must accept that this can be an opportunity not easily taken: R v Singh…

Legislation Cited

Proceeds of Crime Act 2002 (Cth) 316, 48(2), 56
4 mentions (from Para 1)
Crime (Sentencing) Act 2005 (ACT) 47, 53
3 mentions (from Para 1)
Crimes Act 1914 (Cth) 16(A)
2 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
1 mention (from Para 1)
Criminal Code Act 1995 (Cth)
1 mention