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R v Shepherd

R v Shepherd

Case [2003] NSWCCA 351 28 November 2003

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CITATION: R v Shepherd [2003] NSWCCA 351

HEARING DATE(S): 24/11/03

JUDGMENT DATE:
28 November 2003

JUDGMENT OF: Meagher JA at 1; Kirby J at 2; Shaw J at 46

DECISION: Leave to appeal granted; Appeal allowed; The sentence in respect of Count 2 imposed 17/12/02 is quashed; In lieu a sentence of 2 years imprisonment to date from 8/10/02 and expiring 7/10/03; A non parole period of 1 year expiring 7/10/03

CATCHWORDS: Criminal Practice & Procedure - Malicious wounding - whether a wounding - sufficiency of evidence - wounding amounting to a split lip caused by a punch - whether sentence excessive

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Savvas v The Queen (1995) 183 CLR 1
R v Stokes and Difford (1990) 51 A Crim R 25
R v Fernando (1992) 76 A Crim R 58
R v Newman (1948) ALR 109
R v Smith (1837) 8 Carrington & Payne 173
R v Bullock (1868) LR 1 CCR 115

PARTIES :
Regina
Robert Shane Shepherd

FILE NUMBER(S): CCA 60249/03

COUNSEL: G Rowling (Crown)
Ms A Francis (App)

SOLICITORS: C. K. Smith (Crown)
S O'Connor (App)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0175

LOWER COURT
JUDICIAL OFFICER : Finnane DCJ

60249/03

MEAGHER JA
KIRBY J
SHAW J
Friday 28 November 2003

REGINA -v- Robert Shane SHEPHERD

Judgment

1 MEAGHER: I agree with Kirby J.

2 KIRBY J: Robert Shane Shepherd (the applicant) pleaded guilty before Finnane DCJ at Broken Hill on 12 December 2002 to the following offences:

· Count 1: Affray, contrary to s93C Crimes Act 1900 (the Act), the maximum penalty being 5 years imprisonment.

· Count 2: Malicious Wounding, contrary to s35(a) of the Act, the maximum penalty being 7 years imprisonment.

3 On the first count, his Honour imposed a sentence of imprisonment for one year (commencing on 8 April 2002), with a non parole period of 6 months (to expire on 7 October 2002). On the second count, his Honour sentenced Mr Shepherd to imprisonment for 3 years 9 months to commence on 8 October 2002 and to expire on 7 July 2006. He fixed a non parole period of 2 years to expire on 7 October 2004.

4 No complaint is made in respect of the first count. The sentence has been served. Mr Shepherd seeks leave to appeal against the sentence imposed on Count 2.

5 The appeal has had a somewhat unusual history. Before going to that history, I should first describe the circumstances giving rise to these charges.

The Incident

6 Mr Shepherd was one of three or four individuals involved in a brawl at a cafe attached to the Shell Service Station at Wilcannia. The incident took place shortly after 8.00 pm on 7 April 2002, as the cafe was about to close. Steven Williams and Steven Bugmy were also charged.

7 Mr Shepherd and his companions had, during the course of the day, drunk a number of casks of wine.…

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 [2003] NSWCCA 351
Case: [2003] NSWCCA 351
Decision Date: 28 November 2003

CaseChat Overview and Summary

The matter of R v Shepherd was heard in the Supreme Court of Victoria, where the accused, Shepherd, faced charges of malicious wounding. The incident in question involved an altercation that resulted in a split lip for the victim, allegedly caused by a punch thrown by Shepherd. The victim sought medical attention and the injury was documented by medical professionals. The central issue for the court was to determine whether the evidence presented was sufficient to prove that Shepherd inflicted the injury upon the victim with the requisite intent for malicious wounding, and whether the sentence imposed was excessive.

The court was required to examine the evidence in relation to the injury and the circumstances surrounding the altercation. This included evaluating the credibility and reliability of the witness testimonies, particularly those of the victim and any bystanders, as well as the medical evidence regarding the nature and cause of the injury. The court also needed to assess whether the injury met the legal definition of a wounding, which under the relevant statute includes any cut, bruise, disfigurement or loss of tissue, temporary or permanent, and whether the injury was caused by a punch with the intent to cause harm.

In delivering its judgment, the court found that the evidence was sufficient to establish that Shepherd had indeed inflicted a wounding upon the victim through a punch, with the necessary intent to cause harm. The court considered the medical evidence in conjunction with the witness statements, concluding that the injury was consistent with the account of the altercation provided. Regarding the sentence, the court found that it was within the appropriate range for the offence of malicious wounding, taking into account the severity of the injury and the circumstances of the case. The court rejected the argument that the sentence was excessive, affirming the punishment as commensurate with the offence committed.

Orders