SHEPHERD v R [2007] NSWCCA 166

SHEPHERD v R [2007] NSWCCA 166

The sentencing hearing miscarried because available evidence corroborating the applicant's account of his mental illness, alcohol and drug problems and attempts to obtain treatment was not placed before the sentencing judge due to lack of diligence by his representatives. That evidence would have supported a finding of special circumstances and an extended parole period, although only a modest reduction in the non-parole period was warranted given the offences and the applicant's lengthy criminal history. Because remitter would likely cause delay and limit any practical opportunity to reduce the sentence, the Court resentenced the applicant itself.

Jurisdiction
Australia
Judgment Date
19 June 2007
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted, appeal upheld, sentence quashed and applicant resentenced.
Legal Topics
['appeal Against Sentence' 'break, Enter and Steal' 'fresh Evidence on Appeal' 'mental Health' 'special Circumstances' 'legal Representative Lack of Diligence']
['criminal Law'] ['appeal Against Sentence' 'break, Enter and Steal' 'fresh Evidence on Appeal' 'mental Health' 'special Circumstances' 'legal Representative Lack of Diligence']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing proceedings miscarried because the applicant's legal representatives failed to provide available evidence corroborating his evidence about mental health, drug and alcohol problems and attempts to obtain treatment." 'Whether the fresh evidence justified a finding of special circumstances and a reduction of the non-parole period.' 'Whether the matter should be remitted to the District Court or the Court of Criminal Appeal should resentence the applicant.']

Ratio Decidendi

The sentencing hearing miscarried because available evidence corroborating the applicant's account of his mental illness, alcohol and drug problems and attempts to obtain treatment was not placed before the sentencing judge due to lack of diligence by his representatives. That evidence would have supported a finding of special circumstances and an extended parole period, although only a modest reduction in the non-parole period was warranted given the offences and the applicant's lengthy criminal history. Because remitter would likely cause delay and limit any practical opportunity to reduce the sentence, the Court resentenced the applicant itself.

Court Disposition

Leave to appeal granted, appeal upheld, sentence quashed and applicant resentenced.

Orders

  • ['Grant leave to appeal and uphold the appeal.' 'The sentence imposed on 15 June 2006 be quashed.' '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...