R v Sherry - [2000] NSWCCA 35

CITATION: Regina v Sherry [2000] NSWCCA 35

FILE NUMBER(S): CCA 60434/99

HEARING DATE(S): 3 February 2000

JUDGMENT DATE:
29 February 2000

PARTIES :

Regina
Stephen Sherry

JUDGMENT OF: Sully J at 1; Carruthers AJ at 32; Smart AJ at 33

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 60434/99

LOWER COURT JUDICIAL
OFFICER : Levine J

COUNSEL : D. C. Frearson - Crown
J. C. Nicholson SC - Respondent

SOLICITORS:
S. E. O'Connor - Crown
T. A. Murphy - Respondent

LEGISLATION CITED: Sentencing Act 1989 (NSW)

DECISION: Crown appeal allowed - sentence quashed; In lieu of sentence imposed, sentenced to penal servitude for 6 years comprising a minimum term of 3 years 6 months starting on 16 October 1997 and ending on 15 April 2001 and an additional term of 2 years 6 months starting on 16 April 2001 and ending on 15 October 2003

IN THE COURT OF
CRIMINAL APPEAL
60434/99
SULLY J
CARRUTHERS AJ
SMART AJ
Tuesday 29 February 2000

REGINA v Stephen SHERRY
JUDGMENT

1 SULLY J: This is a Crown appeal against a sentence passed on 9 July 1999 by Levine J upon Mr. Stephen Sherry, [“the respondent”]. 2 On 29 June 1999 the respondent was presented for trial before Levine J at Grafton. He was so presented upon an indictment charging that he had murdered, on 16 October 1997 at South Grafton, one Mary Anne Casey, [“the deceased”]. To that charge the respondent pleaded not guilty. He was put, accordingly, upon his trial by a jury; and after a trial lasting several days the jury returned a verdict finding the respondent not guilty of murder but guilty of manslaughter. The respondent was thereupon convicted, and was sentenced by Levine J to penal servitude for 5 years. His Honour found “special circumstances” as contemplated by section 5 of the Sentencing Act 1989 (NSW); and divided the sentence equally between minimum and additional terms. The minimum term was dated to commence on 16 October 1997 and to expire on 15 April 2000. 3 For some six or seven years prior to October 1997 the respondent and the deceased had been living in a de facto relationship. There had been two children of that relationship: a daughter aged, in October 1997, about 12 months; and a son then aged about 3 months. The relationship between the respondent and the deceased had been a very volatile one marked by outbursts of violence and drunkenness. 4 As at 16 October 1997 the respondent and the deceased had separated. The deceased had custody of the two children, but the respondent visited them regularly, those visits bringing him necessarily into contact with the deceased. It seems that the respondent was genuinely attached to the two children, and was genuinely concerned about their welfare and upbringing. 5 On the morning of 16 October 1997 the respondent was sitting with a female acquaintance named Rosemarie Dennis outside the latter’s home in South Grafton. They spent some time in conversation, principally, as it…

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 Sherry

Details

AGLC: R v Sherry [2000] NSWCCA 35
Case: [2000] NSWCCA 35
Decision Date: 29 February 2000

CaseChat Overview and Summary

In Regina v Sherry, the Crown appealed against the sentence imposed on Sherry, who had been convicted of manslaughter after the death of his former de facto wife, Mary. Sherry had been acquitted of the charge of murder. The Court of Criminal Appeal heard the appeal and allowed the Crown's appeal against the sentence. The Court quashed the original sentence of five years' penal servitude imposed by Levine J and sentenced Sherry to six years' penal servitude, comprising a minimum term of three years and six months, and an additional term of two years and six months. The Court held that the original sentence was manifestly inadequate and did not reflect the objective gravity of the offence. The Court found that the continued maintenance in Sherry's hand of the knife after a pause in a violent scuffle between him and the deceased was an unlawful and dangerous act. The Court found that the original sentence gave undue weight to the subjective features of Sherry's case and insufficient weight to the serious objective features. The Court found special circumstances warranting the allowance of additional time for the additional term, including a need for intense alcohol abuse rehabilitation to be continued, monitored, and supervised upon release, and the importance of re-establishing a relationship between Sherry and his children.

Orders