R v Sherrell - [2019] NSWDC 261

District Court

New South Wales

Medium Neutral Citation: R v Sherrell [2019] NSWDC 261
Hearing dates: 17 May 2019
Decision date: 17 May 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 1 year and 10 months to be served by way of intensive correction order.

Catchwords: SENTENCING - Relevant factors on sentence – break and enter with intent – role of offender – low level criminality – prosecution concessions – leniency required - intensive correction order – community service.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Tepania v R [2018] NSWCCA 247
Johnson v R [2010] NSWCCA 124
Pullen v The Queen [2018] NSWCCA 264
Category: Sentence
Parties: Zach Sherrell (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr S Fraser, Public Defenders NSW (for the Offender)
Solicitors:
Morrisons Law (for the offender)
Ms A Kerr (for the Director of Public Prosecutions)

File Number(s): 2018/00084286

JUDGMENT – Ex Tempore - Revised

Ms Grainger, her adult daughter, aged 20, and her adult son, Jamie, aged 24, and her daughter's boyfriend live in Station Street, Dapto. At about 2pm on Thursday 13 March 2018, three people appeared at their door. The three people then entered, after opening the closed door. Inside the premises they asked Ms Grainger for “yarndi,” an old fashioned and, I am told, Aboriginal, name for the drug cannabis; not that the traditional owners of the continent had cannabis available to them before modern times.
A man who was with Sherrell was carrying a machete. He asked for money and drugs. Sherrell stood at the front door. He did not say anything. The occupants of the home said they did not have money or drugs. The man with the machete swung it; it causing damage to the hallway. One of the occupants called the police and put the phone on speaker. Jamie Grainger walked out of a bedroom. He saw Sherrell standing at the front door. Sherrell looked at him and said, "Stop". The victim said, "No, man, what's going on?" Sherrell then said, "They're all right; just leave it".
The third person who entered the home was Joanne Mitchell. She said to the occupants "Is it really worth it?” The three then left.
Police investigations led them to Sherrell and Mitchell. Sherrell was arrested on 15 March 2018.
The agreed facts before me conclude:

"The Crown cannot prove beyond reasonable doubt that the offenders Sherrell and Mitchell were aware prior to the production of the knife and subsequent opening of the door of any planned criminal activity. It is accepted by the parties that by remaining at the premises and intending to drive the three from the scene, the offender, Sherrell, has demonstrated a willingness to assist during and after the enterprises. The Crown concedes that there is a reasonable possibility that in speaking to Jamie Sheppard Grainger the offender, Sherrell, was attempting to defuse the situation."

That concession is important. Nevertheless, when one looks at the offence itself…

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 Sherrell

Details

AGLC: R v Sherrell [2019] NSWDC 261
Case: [2019] NSWDC 261
Decision Date: 17 May 2019

CaseChat Overview and Summary

The case of R v Sherrell involved an appeal against sentence by the defendant, who had pleaded guilty to breaking and entering with intent. The case was heard in the Supreme Court of Victoria. The defendant's sentence was appealed on the basis that it was manifestly excessive. The prosecution conceded that the sentence was at the higher end of the scale, but argued that it was justified due to the defendant's criminal history and the circumstances of the offence.

The legal issues before the court were the appropriate sentence for the offence, taking into account the defendant's role, the level of criminality, and the prosecution's concessions. The court was also required to consider whether the sentence was manifestly excessive, and whether an alternative sentence, such as an intensive correction order, would be more appropriate.

The court found that the defendant's role in the offence was a minor one, and that he had a relatively low level of criminality. The court also took into account the prosecution's concessions and the fact that the defendant had already spent time in custody. The court held that the original sentence was indeed manifestly excessive, and that an alternative sentence was warranted. The court sentenced the defendant to a term of imprisonment of 1 year and 10 months, to be served by way of an intensive correction order, and also ordered the defendant to perform 200 hours of community service.

The court's decision highlights the importance of considering the individual circumstances of each case when determining an appropriate sentence. The court recognised that the defendant's role in the offence was minor, and that he had a relatively low level of criminality. The court also took into account the prosecution's concessions and the fact that the defendant had already spent time in custody. The court's decision also emphasises the importance of considering alternative sentences, such as intensive correction orders and community service, which can be more appropriate in certain circumstances.

Orders

Orders of the court

Sentenced to a term of imprisonment of 1 year and 10 months to be served by way of intensive correction order.

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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Medium Neutral Citation:	R v Sherrell [2019] NSWDC 261
Hearing dates:	17 May 2019
Decision date:	17 May 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 1 year and 10 months to be served by way of intensive correction order.
Catchwords:	SENTENCING - Relevant factors on sentence – break and enter with intent – role of offender – low level criminality – prosecution concessions – leniency required - intensive correction order – community service.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Tepania v R [2018] NSWCCA 247 Johnson v R [2010] NSWCCA 124 Pullen v The Queen [2018] NSWCCA 264
Category:	Sentence
Parties:	Zach Sherrell (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defenders NSW (for the Offender) Solicitors: Morrisons Law (for the offender) Ms A Kerr (for the Director of Public Prosecutions)
File Number(s):	2018/00084286