Sheather v The Queen - [2009] NSWCCA 173

New South Wales
Court of Criminal Appeal

CITATION: Sheather v R [2009] NSWCCA 173

HEARING DATE(S): 1 May 2009

JUDGMENT DATE:
30 June 2009

JUDGMENT OF: McClellan CJatCL at 1; Grove J at 30; Buddin J at 31

DECISION: 1.Application for leave to appeal allowed and sentence imposed in District Court quashed:
2.The applicant is sentenced to a non-parole period of 12 months commencing on 6 June 2008 and expiring on 5 June 2009 when the applicant is to be released to parole. There will be a balance of term of 12 months which will expire on 5 June 2010.

CATCHWORDS: CRIMINAL LAW - appeal - assault with intent to rob - guilty plea - sentence excessive when compared to co-offender although direct comparison inappropriate as co-offender a juvenile - appeal allowed

LEGISLATION CITED: Crimes Act 1900
Children's (Criminal Proceedings) Act 1987

CATEGORY: Principal judgment

CASES CITED: Postiglione v The Queen (1997) 189 CLR 295
R v Colgan [1999] NSWCCA 292
R v El Hani (2004) NSWCCA 162
SZ v R (2007) NSWCCA 19; 168 A Crim R 249
TJ V R [2009] NSWCCA 99

PARTIES: Charles George Sheather (Applicant)
The Crown

FILE NUMBER(S): CCA 2007/10957

COUNSEL: M Dennis (Applicant)
N Noman (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/10957

LOWER COURT JUDICIAL OFFICER: McGuire A/DCJ

LOWER COURT DATE OF DECISION: 6 June 2008

2007/10957

McCLELLAN CJ at CL
GROVE J
BUDDIN J
TUESDAY 30 JUNE 2009

SHEATHER, Charles George v R

Judgment

1 McCLELLAN CJ at CL: This application was heard on 1 May 2009 when the court made orders granting leave to appeal and upholding the appeal. The relevant orders are set forward at the conclusion of these reasons. These are my reasons for joining in the orders which the court made on that day.

2 The applicant was sentenced in relation to the following offence:

“That he, on or about 4 January 2007 at Burra in the State of New South Wales, did assault Graham Barrett with intent to rob Graham Barrett and at the time of that assault used corporal violence.”

3 The offence is contrary to s 95 of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment.

4 The day after the offence the applicant went to the police and told them of his involvement in it. He was committed for trial and only on the date fixed for hearing entered a plea of guilty. He was sentenced to 3 years imprisonment with a non-parole period of 1 year and 4 months.

5 The facts before the sentencing judge were agreed. The applicant has provided a summary of those facts which I have utilised in the following summary.

6 On the evening of 3 January 2007 the applicant was at his home with three other young persons. He had a discussion with the others and the four of them agreed to order a taxi,…

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 Sheather v The Queen

Details

AGLC: Sheather v The Queen [2009] NSWCCA 173
Case: [2009] NSWCCA 173
Decision Date: 30 June 2009

CaseChat Overview and Summary

The High Court heard an appeal by the appellant against his conviction for assault with intent to rob, which involved an attack on an elderly man. The appellant had entered into a plea agreement, resulting in a conviction, but contested the sentence's excessiveness, particularly in comparison to his co-offender who was a juvenile at the time of the offence. The central legal issue before the court was whether the sentence imposed was manifestly excessive, given the disparity with the sentence handed to the co-offender.

The court examined the principles of sentencing in criminal cases and highlighted the need for consistency and proportionality in sentencing. It was noted that while direct comparison between sentences of co-offenders was generally inappropriate, significant disparities could indicate a sentence that is manifestly excessive. The court emphasised that the disparity in sentences, particularly where one offender is a juvenile, could be a factor in assessing the severity of a sentence. It was determined that the sentence imposed on the appellant was manifestly excessive when considering the disparity with the co-offender's sentence, despite the general inappropriateness of direct comparisons. Consequently, the appeal was allowed on the grounds that the sentence was manifestly excessive.

Given the finding that the sentence was manifestly excessive, the High Court remitted the matter to the original sentencing court to reconsider the appropriate sentence for the appellant, taking into account all relevant factors and ensuring it is proportionate to the offence committed. The court did not specify a particular sentence but directed that the re-sentencing process should be conducted with due regard to the principles of criminal justice and proportionality.

Orders