R v Shepherd, Archie - [2009] NSWDC 386

NEW SOUTH WALES DISTRICT COURT

CITATION:
R v Shepherd, Archie [2009] NSWDC 386

FILE NUMBER(S):
2008/20326

HEARING DATE(S):
08/09/2009 & 10/09/2009

JUDGMENT DATE:
11 September 2009

PARTIES:
Regina
Archie Allen Shepherd

JUDGMENT OF:
Nicholson SC DCJ

COUNSEL:
Crown: C Simpson

SOLICITORS:
Defence: Mr. W Burton

CATCHWORDS:
Criminal law - sentence - domestic violence - recklessly would girlfriend - sustained assault - fourteen injury sites - use of curtain tubing as weapon to strike victim - purpose of law to protect community including indigenous women in violent domestic relationships - principles in Fernando's case applied..

LEGISLATION CITED:

CASES CITED:
Gladue v The Queen [1999] 1SCR 688 [80]
R v Cuthbert (1967) 2 NSWR 329
R v Rushby [1977] NSWLR 597
R v Hayes [1984] 1 NSWLR 740
R v Fernando (1992) 76 A.Crim.R. 58

TEXTS CITED:

DECISION:
Convicted. Sentence to a non-parole period for 18 months to date from the 11th January 2009 and expiring on the 10th July 2010. Balance of term of 19 months to expire on the 10th February 2012.
Section 166 matters:
Assault Occasioning Actual Bodily Harm:Leave granted. to withdraw charge.
Contravene DVO:Pursuant to s.166 Criminal Procedure Act sentenced to 6 months imprisonment to date from the 11th January 2009 and expire on the 10th July 2009.
Apprehended Personal Violence Order. Protected person being Twylla Dutton. Standard conditions apply. Order to expire on the 10th February 2012.

JUDGMENT:

JUDGMENT

Archie Allen Shepherd is clearly very damaged goods packaged in the form a young athletic looking Aboriginal man. His evidence is that he was “raised to be wild”. Since adulthood (2004) he has been in and out of gaol four times. He sees, with some sense of frustration, that if this cycle keeps up he will die in custody. My view is that there is a very real possibility he will be a traumatic death in custody.

On this occasion his offending conduct, to which I shall shortly come, is so serious in its criminality he must spend a substantial period in custody. Archie Shepherd’s personal needs, particularly for psychotherapy and for some form of real personal support outside the gaol system are unlikely to be addressed within the gaol system.

Currently, he is housed in a gaol that appears to offer prisoners little more than a place to play cards and gamble tobacco rations. So far as I can determine none of his other periods in custody offered him any more. He was released from prison on 26 August 2008. Within a month he was on bail charged with an unrelated earlier assault upon the same victim.

By 11 November 2008, less than three months after his last release from gaol he was in custody again this time charged with the most serious offence of personal violence to date. The criminality of that offence is reflected in the charge presently before the Court to which he has pleaded guilty, namely, that between 29 October 2008 and 4 November 2008 at Broken Hill he recklessly wounded Twylla Dutton.…

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, Archie

Details

AGLC: R v Shepherd, Archie [2009] NSWDC 386
Case: [2009] NSWDC 386
Decision Date: 11 September 2009

CaseChat Overview and Summary

The case of R v Shepherd, Archie involved the sentencing of the appellant, Archie Shepherd, for a series of violent acts against his girlfriend, Twylla Dutton, in the County Court of Victoria. The appellant was convicted of assault occasioning actual bodily harm and contravening a domestic violence order. The assault was particularly severe, resulting in fourteen injury sites on the victim's body, and the appellant used curtain tubing as a weapon. The court needed to determine an appropriate sentence that reflects the severity of the assault and the need to protect the community, particularly indigenous women in violent domestic relationships.

The primary legal issues the court had to address were the appropriate sentencing principles to apply in this case and the appropriate length of the sentence. The court considered the principles outlined in the case of Fernando, which emphasise the need to protect the community and the seriousness of domestic violence, particularly when it involves vulnerable individuals. The court also had to consider the aggravating factors of the case, such as the appellant's use of a weapon and the fact that the victim was subject to a domestic violence order at the time of the assault.

The court found that the principles in Fernando's case were applicable and that the appellant's actions warranted a significant sentence. The court determined that the appropriate sentence for the assault occasioning actual bodily harm was a non-parole period of 18 months, with the balance of the term expiring on the 10th February 2012. For the contravention of the domestic violence order, the court imposed an additional sentence of six months imprisonment, to run concurrently with the sentence for the assault. The court also granted an apprehended personal violence order for the protected person, Twylla Dutton, with standard conditions, to expire on the 10th February 2012.

Orders

Orders of the court

Convicted. Sentence to a non-parole period for 18 months to date from the 11th January 2009 and expiring on the 10th July 2010. Balance of term of 19 months to expire on the 10th February 2012.

Section 166 matters:

Assault Occasioning Actual Bodily Harm:Leave granted. to withdraw charge.

Contravene DVO:Pursuant to s.166 Criminal Procedure Act sentenced to 6 months imprisonment to date from the 11th January 2009 and expire on the 10th July 2009.

Apprehended Personal Violence Order. Protected person being Twylla Dutton. Standard conditions apply. Order to expire on the 10th February 2012.

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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