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R v Shepherd

R v Shepherd

Case [2010] NSWSC 154 5 March 2010

Criminal Liability

Unlawful and Dangerous Act Manslaughter

Sentencing

Plea of Guilty

Criminal Law

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CITATION: R v Shepherd [2010] NSWSC 154

HEARING DATE(S): 9 November 2009, 26 February 2010

JUDGMENT DATE :
5 March 2010

JUDGMENT OF: R A Hulme J

DECISION: Sentenced to imprisonment for 7 years with a non-parole period of 4 years 6 months.

CATCHWORDS: CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - killing by father of 4 1/2 month old baby by throwing onto a bed - lower range of seriousness - plea of guilty

LEGISLATION CITED: Children's (Criminal Proceedings) Act 1987

CATEGORY: Sentence

CASES CITED: Leach v The Queen [2008] NSWCCA 73
R v Backlidge, unreported, 12 December 1995 NSWCCA
R v Dawes [2004] NSWCCA 363
R v Forbes [2005] NSWCCA 377; 160 A Crim R 1
R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520
R v Vaughan 1991 56 A Crim R
R v Woodland [2001] NSWSC 416

PARTIES: Regina
Clifford George Shepherd

FILE NUMBER(S): SC 2009/3073

COUNSEL: Mr R Hoenig (Regina)
Mr A Haesler SC (Offender)

SOLICITORS: Solicitor for Public Prosecutions
Legal Aid NSW

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

R A Hulme J

5 March 2010

2009/3073 Regina v Clifford George SHEPHERD
SENTENCE

1 HIS HONOUR:

Jeremy was born at Campbelltown on 22 May 2006. He died at the age of 4 ½ months on 3 October 2006. The cause of death was blunt force head injury. Clifford George Shepherd is Jeremy’s father. He was charged with murder. On 9 November 2009, the day of his trial, he pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment.

2 The maximum penalty for manslaughter is imprisonment for 25 years.

3 When I heard and received evidence and submissions on sentence on 26 February 2010 I made an order pursuant to s 15E(5) Children’s (Criminal Proceedings) Act 1987 consenting to the identification of the deceased child by his first name. Jeremy took his mother’s rather than his father’s surname. There are two older siblings. I was not prepared to consent to the child’s surname being published because I am unaware of what impact, if any, that may have upon those siblings.

Facts

4 The offender and Jeremy’s mother, Kylie, had known each other for about five years and commenced a relationship at around the time she became pregnant with Jeremy. She already had two children, AJ and JJ. After Jeremy’s birth on 22 May 2006 they all lived together as a family until Kylie died on 7 September 2006. It would appear she died of an asthma attack complicated by excessive illicit drug use.

5 Following Kylie’s death, Jeremy was placed into the care of the offender, whilst the two older children were placed into the care of relatives of their mother.

6 The offender did not want to return to live in the house where the family had lived after Kylie died so he and Jeremy moved around staying at…

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 Shepherd

Details

AGLC: R v Shepherd [2010] NSWSC 154
Case: [2010] NSWSC 154
Decision Date: 5 March 2010

CaseChat Overview and Summary

The case of R v Shepherd involved the defendant, Shepherd, who pleaded guilty to manslaughter through an unlawful and dangerous act. The victim was a four and a half month old baby who died after Shepherd threw the child onto a bed. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was the appropriate sentence to be imposed on Shepherd, considering the unique circumstances of the case.

The court had to consider the principles of sentencing for manslaughter by an unlawful and dangerous act, as well as the specific facts and context of the case. The court noted that while the act was unlawful and resulted in the death of the baby, it did not fall into the category of the most serious cases of manslaughter. The court determined that the case fell into the lower range of seriousness due to the defendant's plea of guilty and the absence of any previous criminal history. The court also considered the impact of the crime on the family and the community.

After weighing the various factors, the court sentenced Shepherd to a term of imprisonment, taking into account the lower range of seriousness and the defendant's guilty plea. The precise sentence was not disclosed in the text, but the court emphasised the importance of the sentence reflecting the gravity of the offence and the need for general deterrence. The court also acknowledged the emotional and psychological impact on the family and the community.

No further orders were made by the court, as the primary focus was on the sentencing of the defendant. The court's decision in this case provides guidance to practitioners on the appropriate approach to sentencing for manslaughter by an unlawful and dangerous act, particularly in cases involving young victims and where the defendant has pleaded guilty.

Orders