Citation: R v Sherrell [2019] NSWDC 261
Court: District Court of New South Wales
Date: 17 May 2019
Judge: Haesler SC DCJ
Background
Three people entered a residential home in Dapto in March 2018, with one carrying a machete and demanding money and cannabis from the occupants. The offender, Sherrell, stood at the front door throughout and did not make any demands himself. When an occupant emerged from a bedroom, Sherrell spoke to him in terms the Crown conceded could reasonably be interpreted as an attempt to defuse the situation.
Sherrell was arrested two days after the incident and spent approximately two months in custody on remand before being released on strict bail conditions. He pleaded guilty to aggravated break and enter with intent, though the plea was entered on the morning of the trial.
The agreed facts accepted that the Crown could not prove beyond reasonable doubt that Sherrell or his co-offender Mitchell had been aware of any planned criminal activity before the weapon was produced. The Crown nonetheless maintained that Sherrell had demonstrated a willingness to assist the enterprise by remaining at the premises.
Legal Issues
- How the offender's peripheral and potentially defusing role should be weighed in assessing objective seriousness and culpability for a joint criminal enterprise
- What weight should be given to a late guilty plea entered on the morning of trial
- Whether rehabilitation prospects and progress since arrest justified an Intensive Correction Order (ICO) rather than full-time custody for an offence of this nature
- How parity principles applied where co-offenders had different levels of individual culpability
Decision
His Honour assessed the offence as falling near the bottom of the range for aggravated break and enter, though not at the very bottom given the production of a weapon. The standard non-parole period of five years and maximum of twenty years served as a guide, but the combination of Sherrell's minimal role, the Crown's concessions, and his guilty plea warranted substantial departure from that benchmark.
The court applied the principle from Johnson v R that parity does not require identical sentences for all participants in a joint enterprise where individual culpability differs. Sherrell's role was characterised as minimal: he neither planned nor appeared to anticipate the use of the machete, did not make demands, and may have actively sought to de-escalate the confrontation.
The late guilty plea attracted only a 10% utilitarian discount, given it came on the morning of trial. His Honour noted, however, that the plea also reflected a broader acceptance of personal responsibility, including acknowledgment of long-term drug addiction involving methamphetamine. A pre-sentence assessment report described his arrest as a "wake-up call" and confirmed he had engaged in rehabilitation, secured stable accommodation, and obtained part-time work.
Weighing the need to vindicate the dignity of the victims and denounce home invasions against Sherrell's rehabilitation prospects, his Honour determined an ICO was appropriate. The court acknowledged that Sherrell had previously breached a bond, but concluded that the material before it required this option to be attempted. A notional pre-plea sentence of two years and three months was identified, which, after applying the 10% discount and crediting two months served on remand, produced an effective sentence of one year and ten months.
Orders Made
- Convicted of aggravated break and enter with intent
- Sentenced to one year and ten months, to be served by way of Intensive Correction Order in the community
- Standard ICO conditions imposed, plus:
- Compliance with all directions of Probation and Parole
- Participation in drug rehabilitation programs
- 300 hours of community service
- Offender directed to report to Probation and Parole within seven days
Key Takeaways
- A peripheral role in a joint criminal enterprise, including conduct that may have sought to defuse violence, can support substantial departure from a standard non-parole period even where the offender remained present throughout.
- Parity principles do not require identical sentences for co-offenders in a joint enterprise: the District Court confirmed, applying Johnson v R, that differences in individual culpability are legitimate sentencing considerations.
- A guilty plea entered on the morning of trial attracts only a 10% utilitarian discount, though the plea may carry additional weight if it reflects genuine acceptance of responsibility beyond its procedural utility.
- Under s 66 of the Crimes (Sentencing Procedure) Act 1999, an ICO is a recognised alternative to full-time custody and carries real burdens; community safety remains the paramount consideration, but demonstrated rehabilitation can support its imposition even for serious offences involving violence in the home.
- Sentencing courts are not required to identify which specific features of an offence were or were not accounted for when considering the standard non-parole period's role: the court applied Tepania v R and Pullen v The Queen in treating the standard non-parole period as a guide rather than a mechanical reference point.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 66
Cases
- Tepania v R [2018] NSWCCA 247
- Johnson v R [2010] NSWCCA 124
- Pullen v The Queen [2018] NSWCCA 264