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Court of Criminal Appeal 19 June 2007

SHEPHERD v R

[2007] NSWCCA 166

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE BREAK, ENTER AND STEAL SIGNIFICANT CRIMINAL RECORD

Citation: Shepherd v R [2007] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 19 June 2007
Judges: McClellan CJ at CL, Hislop J, Smart AJ

Background

The applicant pleaded guilty in the District Court to two counts of break, enter and steal from a dwelling, offences committed on consecutive days in December 2005 at a shed and house in Forster, NSW. The stolen property included a bicycle, fishing gear, household electronics, and a surfboard, with a combined value of approximately $1,500. The offender was apprehended after returning to the scene and being confronted by the victim.

At sentencing in June 2006, the applicant gave evidence about his drug and alcohol problems, a recent psychotic episode, and steps he had taken to seek treatment. The sentencing judge found most of that evidence unreliable and declined to accept it without corroboration. The judge stood the matter over to allow further supporting evidence to be produced, but none was tendered on the adjourned date.

The applicant had an extensive criminal history spanning several decades, including prior convictions for robbery, assault, break, enter and steal, and various drug and traffic offences. He was ultimately sentenced to concurrent terms comprising a non-parole period of 2 years and 3 months, with a further term of 9 months.

  • Whether the failure by the applicant's legal representatives to place corroborating evidence before the sentencing judge constituted a basis for the Court of Criminal Appeal to intervene
  • Whether evidence, tendered for the first time on appeal and confirming the applicant's mental health problems, warranted a finding of special circumstances (a sentencing concept allowing the court to vary the standard ratio between the non-parole period and the total sentence, to provide a longer period of supervised release)
  • Whether the matter should be resentenced by the Court of Criminal Appeal or remitted to the District Court

Decision

Fresh evidence was tendered before the Court of Criminal Appeal, without objection from the Crown, confirming much of what the applicant had told the sentencing judge. That evidence established that the applicant had voluntarily sought treatment before the offences were committed, that his efforts had been interrupted by a supervening psychotic event, and that he had a genuine mental health condition.

The Court accepted that this evidence, had it been before the sentencing judge, would have supported a finding of special circumstances. That finding would have led to a longer parole period relative to the non-parole period, providing the applicant with an extended period of supervised release and access to treatment in the community.

On the question of forum, the Court declined to remit the matter to the District Court. The applicant was already close to his parole eligibility date, and a remittal would have caused further delay that would have largely defeated the purpose of any reduction. The Court proceeded to resentence the applicant itself.

The Court acknowledged the applicant's serious and persistent offending history, noting it would have warranted only a modest reduction in the non-parole period. However, the extended parole period was considered appropriate given the applicant's identified need for treatment for psychosis and drug and alcohol problems, and the prospects of rehabilitation through supervised community release.

Orders Made

  • Leave to appeal granted and appeal upheld
  • Original sentence imposed on 15 June 2006 quashed
  • On the first count: non-parole period of 2 years commencing 27 March 2006 and expiring 26 March 2008, with a further term of 12 months expiring 26 March 2009
  • On the second count: identical concurrent sentence of a 2-year non-parole period commencing 27 March 2006 and expiring 26 March 2008, with a further term of 12 months expiring 26 March 2009

Key Takeaways

  • Where an applicant's legal representatives fail to tender available corroborating evidence at sentencing, and that evidence is later placed before the Court of Criminal Appeal without objection, the appellate court may treat it as a basis for intervention and resentencing.
  • A finding of special circumstances may be warranted where evidence establishes that an offender has genuine mental health problems requiring treatment and would benefit from an extended period of supervised release into the community.
  • The Court of Criminal Appeal confirmed it will resentence directly rather than remit to the District Court where remittal would likely defeat the practical benefit of any sentence reduction, particularly where the offender is close to parole eligibility.
  • An extensive and serious criminal history does not preclude a finding of special circumstances, but the Court of Criminal Appeal held it limits any reduction in the non-parole period to a modest one.
  • Sufficient evidence of a pre-existing psychotic episode, interrupted treatment efforts, and confirmed drug and alcohol problems existed here to support the conclusion that the original sentencing judge would have exercised the discretion differently had that material been available.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1) (break, enter and steal from a dwelling; maximum penalty 14 years imprisonment)

Cases
- R v Birks (1990) 19 NSWLR 677
- R v Munro [2006] NSWCCA 350