R v Shepherd [2003] NSWCCA 351

R v Shepherd [2003] NSWCCA 351

Because the sentencing judge was not satisfied beyond reasonable doubt that the applicant knew of the knife, the applicant had to be sentenced only on the basis that he knew or foresaw the possibility that Williams might strike the shopkeeper with his fists and thereby wound him. In an offence carrying a 7 year maximum that must also cover more serious woundings involving weapons, the original sentence of 3 years 9 months with a 2 year non-parole period, even allowing for the guilty plea and subjective matters, was manifestly excessive.

Jurisdiction
Australia
Judgment Date
28 November 2003
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal Against Sentence on Count 2
Outcome
Leave to appeal granted; appeal allowed; sentence on Count 2 quashed and applicant resentenced.
Legal Topics
['malicious Wounding' 'affray' 'sufficiency of Evidence for Wounding' 'complicity in Wounding' 'manifest Excess' 'aboriginality and Sentencing' 'special Circumstances' 'non Parole Period']
['criminal Law' 'criminal Procedure' 'sentencing'] ['malicious Wounding' 'affray' 'sufficiency of Evidence for Wounding' 'complicity in Wounding' 'manifest Excess' 'aboriginality and Sentencing' 'special Circumstances' 'non Parole Period']

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal Against Sentence on Count 2

Legal Issues

  1. 1 ["Whether the material before the sentencing judge supported the applicant's plea of guilty to malicious wounding on the basis of complicity in a wounding." 'Whether a split lip caused by a punch could amount to a wounding for the purposes of s35(1) of the Crimes Act 1900.' 'Whether the sentence of 3 years 9 months imprisonment with a non-parole period of 2 years for Count 2 was manifestly excessive.' 'Whether special circumstances justified a non-parole period different from the statutory ratio.']

Ratio Decidendi

Because the sentencing judge was not satisfied beyond reasonable doubt that the applicant knew of the knife, the applicant had to be sentenced only on the basis that he knew or foresaw the possibility that Williams might strike the shopkeeper with his fists and thereby wound him. In an offence carrying a 7 year maximum that must also cover more serious woundings involving weapons, the original sentence of 3 years 9 months with a 2 year non-parole period, even allowing for the guilty plea and subjective matters, was manifestly excessive.

Court Disposition

Leave to appeal granted; appeal allowed; sentence on Count 2 quashed and applicant resentenced.

Orders

  • ['Leave to appeal is granted.' 'The appeal is allowed.' 'The sentence in respect of Count 2 imposed by Finnane DCJ on 17 December 2002 is quashed.' 'In lieu, the applicant is sentenced to 2 years imprisonment to date from 8 October 2002 and expiring on 7 October 2004.' 'A non-parole period of 1 year is fixed,...