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R v Shepperbottom

R v Shepperbottom

Case [2001] SASC 31 14 March 2001

Criminal Liability

Sentencing

Jurisdiction

Statutory Interpretation

Appeal

Criminal Law

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R v SHEPPERBOTTOM

[2001] SASC 31

Court of Criminal Appeal: Doyle CJ, Duggan and Williams JJ

1................ DOYLE CJ....... This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed by the District Court.

The High Court has held that leave should be granted to the prosecution to appeal against sentence only in a “rare and exceptional case”: Everett v The Queen (1994) 181 CLR 295 at 299 - 300. The Court has affirmed remarks by Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 to the effect that an appeal should be allowed to be brought only
“to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
In other words, leave should not be granted to the Director simply for the purpose of correcting an error, even a clear error. Leave should be granted only when it is necessary to do so to establish a principle, or to ensure that adequate sentencing standards are maintained. It is not always necessary to correct an error to achieve this purpose.
This Court has consistently applied the principles stated by King CJ in R v Osenkowski (1982) 30 SASR 212 at 212 - 213. As King CJ said there, the purpose of a prosecution appeal is “to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”
The respondent pleaded guilty to escaping from lawful custody. At the time of the escape he was prisoner at Cadell, a low security prison. He simply walked out of the prison.
The respondent was serving a sentence of 46 months imprisonment imposed in October 1999. A non-parole period of nine months had been fixed. He had only served about six weeks when he escaped on 27 November 1999. The non-parole period is due to expire on 18 May 2001, after taking account of the six days for which he was at large, and time spent in prison in Victoria, in which state he served a sentence of imprisonment after he escaped.
The respondent is about 38 years of age. He has a very bad criminal record, stretching back to 1975. He has breaking offences, vehicle offences, drug offences, dishonesty offences and some offences involving violence. He has served a number of terms of imprisonment.
The Judge accepted that for many years the respondent had a “chronic heroin habit”, and that much of his offending was linked to that habit. The Judge also accepted significantly, that the respondent had gone to Cadell for a 15 week drug course, and…

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 Shepperbottom [2001] SASC 31
Case: [2001] SASC 31
Decision Date: 14 March 2001

CaseChat Overview and Summary

The case of R v Shepperbottom involved an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed by the District Court. The respondent, Shepperbottom, had pleaded guilty to escaping from lawful custody while serving a sentence at a low-security prison. The District Court Judge accepted that Shepperbottom had a genuine interest in reforming his life, particularly in overcoming his drug habit and ensuring the welfare of his daughter. In light of these factors, the Judge imposed a sentence of seven months imprisonment, to be served after the completion of Shepperbottom's existing sentence, without extending the non-parole period. The Director sought leave to appeal, arguing that the sentence was manifestly inadequate and not authorised by law.

The key legal issues before the Court of Criminal Appeal were whether leave should be granted to the Director to appeal against the sentence and, if so, what orders should be made. The Court had to consider whether the sentence imposed by the District Court Judge departed significantly from established sentencing standards for the offence of escaping from lawful custody and whether the failure to extend the non-parole period constituted an error of law. Additionally, the Court had to determine whether the circumstances warranted granting leave to appeal, despite the prosecution's failure to bring certain legal matters to the sentencing Judge's attention.

The Court of Criminal Appeal held that the sentence was indeed manifestly inadequate and not authorised by law, primarily because the Judge failed to extend the non-parole period as required by statute. The Court found that the language of the Criminal Law (Sentencing) Act 1988 mandated the extension of an existing non-parole period when a person is sentenced to further imprisonment. Despite this error of law, the Court noted that the sentence was not so disproportionate as to shock the public conscience, and there was no evidence of a broader sentencing trend that required correction. However, the significant error in failing to extend the non-parole period warranted granting leave to appeal. The Court allowed the appeal, set aside the original sentence, and substituted a sentence of 12 months imprisonment to be served cumulatively upon the existing sentence, along with an extension of the non-parole period by six months.

Orders