R v Shepherd - [2001] QCA 224

[2001] QCA 224

COURT OF APPEAL

THOMAS JA
MUIR J
ATKINSON J

CA No 76 of 2001

THE QUEEN

JOHN EDWARD SHEPHERD (Applicant)

BRISBANE

..DATE 06/06/2001

JUDGMENT

THOMAS JA: Justice Atkinson will deliver the first judgment.

ATKINSON J: The applicant was sentenced after being convicted on his plea of guilty to one count of wilful damage, one count of break and enter and committing an offence, one count of common assault, and one count of serious assault. The learned sentencing Judge sentenced him to two years imprisonment with a recommendation for parole after serving nine months on the count of break and enter and committing an offence, and nine months imprisonment to be served concurrently on each of the other offences.

The offences occurred during the night of 1 and 2 September 1998. At about 11 p.m. on 1 September the lounge of the Northern Australian Hotel in Bowen was closed, but at that time the applicant had put, he claimed, $6.00 into the jukebox and it had not played all of his music. The applicant became aggressive and swore at Helen Egan, the part-owner of the hotel. He called her, amongst other things, a slut, an arse-hole, and a moll. Unsurprisingly, he was ejected from the hotel.

At about 3.40 a.m. in the early hours of 2 September 1998
Ms Egan heard the applicant abusing her from outside the hotel. She called out to him that the hotel was closed and that he should go home and she then made a call to the police. At this stage she could hear the applicant kicking in a glass panel at the front of the hotel. She went to the bar and found the applicant had gained entry to the hotel. She then saw him move quickly, grab a bar stool, and throw it in her direction. It missed her.

At this point Phillip Thompson came to her assistance by attempting to keep the applicant away from her. The applicant then picked up another bar stool, raised it above his head, and hit Mr Thompson on the back of his shoulders. There was a struggle between the applicant and Thompson. The applicant desisted and was chased from the hotel.

The police arrived shortly afterwards and noted the damage to the hotel. They also saw the applicant running from the scene and chased him. They caught up with him when he attempted to climb onto the roof of the hotel. One of the police officers, Sergeant Cameron, attempted to stop him from climbing onto the roof. The applicant kicked out and struck Sergeant Cameron in the arm and chest and his legs, causing him to lose his footing and fall backwards, hurting his shoulder, arm, and fingers.

The applicant then climbed onto the roof where he was later detained. He declined to be interviewed. He was released on bail but not located again until January 2001. Between January and March 2001 the applicant spent time in custody for his breach of…

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.

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Details

Case: [2001] QCA 224
Decision Date: 6 June 2001

CaseChat Overview and Summary

In the case of R v Shepherd, the applicant, John Edward Shepherd, appealed against his sentence for multiple offences. Shepherd was convicted of wilful damage, break and enter and committing an offence, common assault, and serious assault. He was sentenced to two years imprisonment with a recommendation for parole after serving nine months for the break and enter offence, and nine months concurrently for each of the other offences. The case involved a series of events at the Northern Australian Hotel in Bowen, which culminated in Shepherd's arrest and subsequent sentencing.

The primary legal issues addressed in this case were whether the sentence imposed was manifestly excessive and if the sentencing discretion had miscarried. Shepherd argued that the sentencing judge failed to adequately consider the plea of guilty as a mitigating factor, resulting in a sentence that was disproportionate to the offences committed. He contended that the discount for his guilty plea should have been reflected in a reduction of the head sentence, rather than merely a recommendation for early parole, given his history of breaching parole.

The Court of Appeal found that the sentencing judge did not miscarry in the exercise of discretion. The court held that the sentencing judge had the discretion to either reduce the head sentence or recommend early parole, or a combination of both, and that the sentence of 24 months' imprisonment with a recommendation for parole after serving nine months was not manifestly excessive. The court concluded that the sentence did not reflect a miscarriage of the sentencing discretion.

The Court of Appeal dismissed the application for leave to appeal against the sentence, thereby upholding the original sentencing decision.

Orders