1. Jesse Dean Shepherd be convicted of aggravated robbery and sentenced to 2 years and 6 months imprisonment, to commence on 7 July 2021.
2. A non-parole period of 17 months be set, to commence on 7 July 2021 and end on 6 December 2022.
Catchwords:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Robbery – Subjective Circumstances – Drug Addiction – Mental Illness – Drug and Alcohol Treatment Order Application – Application Denied – Imprisonment
As was said in R v Boudelah (1991) 28 FCR 176 at 181, “observance of correct procedures in criminal matters is always important so as to ensure fairness to the Crown and to the accused.” An important part of correct procedure is, of course, the rules of natural justice.
Thus, an accused person is required to be told what is alleged, and indeed to be given an opportunity not only to see the evidence to be adduced, but to have a proper opportunity to answer it.
Sometimes the apparent width of this obligation is constrained by legislation and, of course, the courts are bound to apply the law as legislated. The courts will, however, strain to ensure fairness, as fairness of procedure is at least equally as important as…
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
AGLC
R v Shepherd (No 2) [2022] ACTSC 248
Case
[2022] ACTSC 248
Decision Date
CaseChat Overview and Summary
Jesse Dean Shepherd was convicted of aggravated robbery and sentenced to imprisonment by the Supreme Court of the Australian Capital Territory. The Court found the offence was serious and had aggravating features due to the presence of a weapon and the commission of the offence in the company of another person. The Court also considered the subjective circumstances of Mr Shepherd, who had a difficult upbringing, mental health issues, and a history of drug abuse. The Court found that a sentence of imprisonment was appropriate, and sentenced Mr Shepherd to 2 years and 6 months imprisonment, with a non-parole period of 17 months. The Court declined Mr Shepherd's application to serve the sentence by a Drug and Alcohol Treatment Order due to concerns about his living circumstances and mental health issues. The Court encouraged Mr Shepherd to undertake rehabilitation within the custodial environment and recommended that he be encouraged, as a condition of his parole, to undertake residential rehabilitation when he is released.