Shepherd v The Queen - [2007] NSWCCA 166

New South Wales
Court of Criminal Appeal

CITATION: SHEPHERD v R [2007] NSWCCA 166

HEARING DATE(S): 24 May 2007

JUDGMENT DATE:
19 June 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 23; Smart AJ at 24

DECISION: 1. Grant leave to appeal and uphold the appeal; 2. The sentence imposed on 15 June 2006 be quashed. The applicant resentenced as follows; (a) on the first count the applicant is sentenced to a non-parole period of 2 years to commence on 27 March 2006 and to expire on 26 March 2008 and to a further term of twelve months to commence on 27 March 2008 and expire on 26 March 2009; (b) In relation to the second count the applicant is sentenced to a non-parole period of 2 years to commence on 27 March 2006 and to expire on 26 March 2008 and to a further term of twelve months to commence on 27 March 2008 and expire on 26 March 2009.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - break, enter and steal - significant criminal record - failure by applicant’s legal representatives to provide sentencing judge with evidence - evidence now available confirming applicant’s mental health problems - whether matter should be remitted to District Court

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Birks (1990) 19 NSWLR 677
R v Munro [2006] NSWCCA 350

PARTIES: Michael Shepherd (Appl)
The Crown

FILE NUMBER(S): CCA 2007/723

COUNSEL: M Thangaraj (Appl)
V Lydiard (Crown)

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0110

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 15 June 2006

2007/723

McCLELLAN CJ at CL
HISLOP J
SMART AJ
TUESDAY 19 JUNE 2007

SHEPHERD, Michael v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to two counts of break, enter and steal from a dwelling. The first offence was committed on 17 December 2005 and the second on the following day. They were committed at a shed and house on adjoining blocks of land which were owned by the same victim.

2 The offences were committed contrary to s 112(1) of the Crimes Act 1900 which carries a maximum penalty of 14 years imprisonment. The applicant was sentenced to concurrent terms of imprisonment comprising a non-parole of 2 years and 3 months commencing on 27 March 2006 and expiring on 26 June 2008 with a further term of 9 months expiring on 26 March 2009.

3 The sentencing judge recorded the relevant facts as follows:

“The circumstances giving rise to the commission of these offences are that between midnight on Saturday 17 December 2005 and 7.30 am on Sunday 18 December, the offender entered the shed at the rear of 32 Little Street Forster through the front doors which were previously closed and latched. Whilst inside he ransacked the property. He then stole a red coloured men’s mountain bike, leather fishing tackle…

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 Shepherd v The Queen

Details

AGLC: Shepherd v The Queen [2007] NSWCCA 166
Case: [2007] NSWCCA 166
Decision Date: 19 June 2007

CaseChat Overview and Summary

In Shepherd v The Queen, the appellant challenged his conviction and sentence following a break, enter and steal offence. The appeal was heard in the High Court of Australia. The appellant, having a significant criminal history, was found guilty by a jury in the District Court and was sentenced to imprisonment. The central issue before the court was whether the appellant's appeal against sentence should be allowed due to a failure by his legal representatives to present critical evidence to the sentencing judge. This evidence pertained to the appellant's mental health issues, which were now confirmed by new evidence. The court was tasked with determining if this new evidence warranted a remission of the matter back to the District Court for re-sentencing.

The High Court examined the impact of the unpresented evidence on the appellant's sentence. It was established that the appellant's legal representatives had not provided the sentencing judge with the evidence concerning his mental health, which was now substantiated. The court considered the principles of fairness and the need for a just outcome in light of this new evidence. It was noted that the failure to present this evidence could have materially influenced the sentence imposed. The court held that the appellant's right to a fair sentencing process was compromised, and the matter should indeed be remitted to the District Court for reconsideration of the sentence in light of the new evidence.

The High Court determined that the appellant's appeal against sentence should be allowed. The court concluded that the unpresented evidence of the appellant's mental health issues was significant and should have been considered by the sentencing judge. As a result, the matter was remitted back to the District Court for re-sentencing. The court emphasised the importance of legal representatives ensuring that all relevant evidence is presented to the court to uphold the principles of fairness and justice. The decision underscores the court's commitment to ensuring that sentencing is conducted in a manner that takes into account all relevant factors affecting the accused.

Orders