Sheather v Director of Public Prosecutions

[2024] ACTCA 33

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Sheather v DPP

Citation: 

[2024] ACTCA 33

Hearing Date: 

22 November 2024

Decision Date: 

22 November 2024

Before:

McCallum CJ

Decision: 

1.    The appeal is dismissed for want of prosecution.

2.    The orders appealed from are confirmed.

Catchwords: 

APPEAL – SUPREME COURT APPEAL – Application to dismiss for want of prosecution – where appellant repeatedly failed to appear

Legislation Cited: 

Court Procedures Rules 2006 (ACT) r 5603

Parties: 

Daniel Nicholas Sheather (Appellant)

Director of Public Prosecutions (Respondent)

Representation: 

Counsel

No appearance ( Appellant)

L Thomas ( Respondent)

Solicitors

Self-represented ( Appellant)

ACT Director of Public Prosecutions ( Respondent)

File Number:

ACTCA 8 of 2024

Decision Under Appeal: 

Court:    ACT Supreme Court

Before:   Christensen AJ

Date of Decision:       2 April 2024

Case Title:                 R v Sheather (No 3)

Citation: [2024] ACTSC 86

Court File Numbers:   SCC 124 of 2021

  SCC 125 of 2021

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․On 2 April 2024, Daniel Sheather was sentenced by Christensen AJ following the cancellation of his drug and alcohol treatment order dated 4 November 2021.  Her Honour made the following orders:

2.The conviction of Daniel Nicholas Sheather of aggravated robbery (CAN 1722/2021) is confirmed and a sentence of 22 months imprisonment is imposed to commence on 8 August 2023 and end on 7 June 2025.

3.The conviction of Daniel Nicholas Sheather of damage property (CAN 14715/2020) is confirmed and a sentence of 1 month imprisonment is imposed to commence on 8 August 2023 and end on 7 September 2023.

4.The conviction of Daniel Nicholas Sheather of aggravated burglary (CAN 14712/2020) is confirmed and a sentence of 20 months imprisonment is imposed to commence on 8 December 2024 and end on 7 August 2026.

5.The conviction of Daniel Nicholas Sheather of common assault (CAN 14718/2020) is confirmed and a sentence of 4 months imprisonment is imposed to commence on 8 August 2023 and end on 7 December 2023.

6.The sentence of 36 months imprisonment is suspended from today, 2 April 2024, to 7 August 2026.

7.Daniel Nicholas Sheather is required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 2 April 2024 for a period of 28 months 6 days until 7 August 2026 with the following additional probation conditions that he accept the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him consider appropriate and obey all reasonable directions of the person supervising him.

2․On 29 April 2024, the offender filed a notice of appeal appealing from the orders on a single ground, namely, that the sentence is manifestly excessive.  I note that, without having her Honour’s judgment or the circumstances of the offences before me, a sentence wholly suspending the term of imprisonment for offences of the nature described, including aggravated robbery and aggravated burglary, is not, on its face, one that would readily be regarded as excessive.  Those are offences for which, in other jurisdictions at least, offenders can expect to be sentenced for considerable periods of full-time imprisonment. 

3․The notice of appeal when stamped gave a return date of 28 May 2024 at 2:30pm.  The appellant did not appear on that occasion and has not appeared on any of the six subsequent occasions, including today, that the appeal has been before the Court.

4․On 17 October 2024, the Director of Public Prosecutions filed an application seeking to have the proceedings dismissed for want of prosecution and the orders appealed from confirmed. The Court has power to make such an order under r 5603(3) of the Court Procedures Rules 2006 (ACT).

5․Upon being informed of the application and its listing for this morning, the appellant sent an email which specifies today’s date and identifies him to be of “no fixed address.”  The email, which was received by the Court at 9:58am, the matter having been listed before me at 9:45am, read as follows:

To whom it may concern, Daniel Nicholas Sheather has become aware of a family member falling ill overnight and is now in emergency therefore seeking adjournment at today’s hearing.  Many Thanks, Daniel Sheather

6․When the matter was called, there being no appearance by or for Mr Sheather, I requested my Associate to write to Mr Sheather at the email address from which his email came to advise him that if he did not attend court by 12:30pm today, the appeal would be dismissed.  It is apparent that he received that email because he responded to it.  The response was communicated via an email from the Registry in the following terms:

Please be advised that Mr Sheather contacted registry just a few minutes ago [the email is time stamped 11:57am] and has advised that he is unable to attend his hearing this afternoon as his car has broken down and he has no other means of transport to attend court.  He has further disclosed that he is self-represented and is unprepared for the hearing, and with his current financial circumstances he is unable to obtain a legal representative.  I advised Mr Sheather that his message will be passed on to Chambers and it is encouraged that he appears this afternoon.

7․The email communications do not give me any comfort that the appellant has the resolve or capacity to prosecute his appeal.  In my assessment, he has been given ample opportunity to prosecute it in the numerous mentions of the proceedings to which I have referred.  Furthermore, I have regard to the fact that, as already indicated, a sentence that is wholly suspended and subjects him only to a good behaviour bond under supervision, provided he complies with the conditions of the bond, does not, on its face, appear to be a manifestly excessive sentence for offences of the kind referred to in the orders of Christensen AJ. 

Orders

8․Accordingly, pursuant to r 5603(3)(a) of the Court Procedures Rules, I make the following orders:

(1)The appeal is dismissed for want of prosecution.

(2)The orders appealed from are confirmed.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: