Sheehan [No 2] v Regina - [2006] NSWCCA 332

CITATION: Sheehan [No 2] v Regina [2006] NSWCCA 332

HEARING DATE(S): 12/07/06

JUDGMENT DATE:
3 November 2006

JUDGMENT OF: Handley JA at 1; Kirby J at 2; Hoeben J at 29

DECISION: (1) Appellant granted leave to appeal against sentence in respect of count 10. (2) Appeal allowed. (3) The sentence in respect of count 10 set aside and, in lieu thereof, the appellant sentenced to imprisonment for 6 years commencing on 22 November 2004 and expiring on 21 November 2010, with a non parole period of 4 years commencing on 22 November 2004. The first date upon which the appellant will be eligible for parole is 21 November 2008.

CATCHWORDS: Criminal Practice & Procedure - application for leave to appeal against sentence after appeal against conviction allowed on some counts and new trial ordered - conviction confirmed on one count - old offence - judge adopted global approach to sentence - whether sentence on remaining count anomolous and excessive - jurisdiction of Court of Criminal Appeal - re-sentence - sentence reduced.

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED: Sheehan v Regina [2006] NSWCCA 233
Shore (1992) 66 A Crim R 37
MJR (2002) 130 A Crim R 481
R H McL v The Queen (2000) 203 CLR 452
Ryan v The Queen (1982) 149 CLR 1

PARTIES: Ronald John Sheehan (App)
Regina (Resp)

FILE NUMBER(S): CCA 2006/701

COUNSEL: H Dhanji (App)
P G Ingram (Resp/Crown)

SOLICITORS: J Pearson - LAC (App)
S Kavanagh (Resp/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/61/116

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 08/06/05

2006/701

HANDLEY JA
KIRBY J
HOEBEN J

Friday 3 November 2006

Ronald John SHEEHAN [No 2] v REGINA

Judgment

1 HANDLEY JA: I agree with Kirby J.

2 KIRBY J: On 12 July 2006 this Court heard an appeal by Ronald John Sheehan against convictions recorded after a jury trial in relation to the following charges:

Crimes Act

Count 2 : That between 1.5.82 and 31.5.82 he had sexual intercourse without consent with a child under 16, namely, fellatio with the complainant then aged 7 years (s61D(1)).

Count 3 : That between 1.5.82 and 31.5.82 he had sexual intercourse without consent with a child under 16, namely, vaginal intercourse with the complainant then aged 7 years (s61D(1)).

Count 4 : That between 29.11.82 and 12.12.82 he had sexual intercourse without consent with a child under 16, namely, fellatio with the complainant then aged 7 years (s61D(1)).

Count 5 : That between 29.11.82 and 12.12.82 he had sexual intercourse without consent with a child under 16, namely, vaginal intercourse with the complainant then aged 7 years (s61D(1)).

Count 6 : That between 1.3.85 and 31.3.85 he had sexual intercourse without consent with a child under 16, namely, fellatio with the…

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 Sheehan [No 2] v Regina

Details

AGLC: Sheehan v Regina [No 2] [2006] NSWCCA 332
Case: [2006] NSWCCA 332
Decision Date: 3 November 2006

CaseChat Overview and Summary

Sheehan [No 2] v Regina is a decision of the High Court of Australia, which dealt with an application for leave to appeal against a sentence imposed following the allowance of an appeal against a conviction in the Supreme Court of Queensland. The case concerned the defendant, Sheehan, who had been convicted of multiple offences and subsequently had his appeal against some of those convictions allowed by the Court of Appeal. The High Court was required to decide whether the sentence imposed on the remaining count was excessive and whether the Court of Criminal Appeal had the jurisdiction to re-sentence the defendant. The court found that the sentence was indeed excessive and that the Court of Criminal Appeal had the jurisdiction to re-sentence the defendant. As a result, the sentence was reduced.

The central legal issue in this case was whether the sentence imposed on the defendant for the remaining count was excessive, given that the appeal against some of the counts had been allowed and a new trial ordered. The court had to determine whether the judge had erred in adopting a global approach to sentencing and whether the sentence was disproportionate to the offence committed. The second issue was whether the Court of Criminal Appeal had the jurisdiction to re-sentence the defendant in light of the allowance of the appeal and the ordering of a new trial.

The High Court held that the sentence imposed on the defendant for the remaining count was indeed excessive, as it did not take into account the fact that the appeal against some of the counts had been allowed and a new trial ordered. The court found that the judge had erred in adopting a global approach to sentencing, as the sentence did not reflect the reduced culpability of the defendant for the remaining count. Furthermore, the court held that the Court of Criminal Appeal had the jurisdiction to re-sentence the defendant, as the allowance of the appeal and the ordering of a new trial meant that the original sentence was no longer appropriate. As a result, the sentence was reduced to reflect the defendant's reduced culpability for the remaining count.

Orders