New South Wales
Court of Criminal Appeal
CITATION: SHEPHERD v R [2007] NSWCCA 166 HEARING DATE(S): 24 May 2007
JUDGMENT DATE:
19 June 2007JUDGMENT 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 350PARTIES: Michael Shepherd (Appl)
The CrownFILE 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
TUESDAY 19 JUNE 2007McCLELLAN CJ at CL
HISLOP J
SMART AJ
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…
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- AGLC
- Shepherd v The Queen [2007] NSWCCA 166
- Case
- [2007] NSWCCA 166
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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