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District Court 25 September 2026

R v Emmett Sheard; R v Dakota Rhianne Clarke

[2026] NSWDC 351

Assault & violenceFirearms & weaponsPublic order & justice offences

Citation: R v Emmett Sheard; R v Dakota Rhianne Clarke [2026] NSWDC 351
Court: District Court of New South Wales
Date: 25 September 2026
Judge(s): Priestley SC DCJ

Background

Two offenders were sentenced following a jury trial in which both were found guilty of two counts of discharging a firearm with intent to cause grievous bodily harm, contrary to section 33A(1)(a) of the Crimes Act 1900. The charges arose from a planned, armed home invasion in the early hours of 21 September 2023, targeting a residence from which the occupant AB conducted an illegal drug supply business.

The principal offender concealed a loaded .22 calibre lever action rifle and used a pre-arranged drug purchase as a ruse to gain entry to the premises. Once inside, he fired the rifle five times, wounding both AB (a shot to the left upper arm) and CD (a shot to the left upper thigh), who had been woken by the noise. The second offender accompanied him throughout, following him as he pursued the victims through the premises.

The two offenders were tried jointly. The jury rejected the primary charges of shooting with intent to murder and returned guilty verdicts on the alternative charges of discharging a firearm with intent to cause grievous bodily harm. Sentencing took place on 21 September 2026 in Lismore, with judgment delivered on 25 September 2026.

Legal Issues

  • What aggregate sentences were appropriate for each offender on two counts under section 33A(1)(a) of the Crimes Act 1900, each carrying a maximum of 25 years and a standard non-parole period of 9 years?
  • How did the different bases of criminal liability (direct liability versus extended joint criminal enterprise) affect the assessment of objective seriousness?
  • To what extent did each offender's background of disadvantage, trauma and mental health reduce moral culpability and affect the weight given to general deterrence?
  • Did special circumstances exist for either offender justifying a non-parole period below the statutory ratio?
  • How should the sentences be backdated, and to what extent should time already served under unrelated sentences be treated as concurrent?

Decision

Objective seriousness: Sheard

The court found Sheard's offending to be towards the top of the middle 20% of the range of seriousness for this offence (at [24]). He was the instigator and sole shooter, firing five times in total, twice through a closed door while knowing someone was on the other side, and pointing the rifle directly at both AB and CD (at [22]). The court accepted an argument that shots fired without knowing precisely where the victims were might distinguish the offending from more extreme examples, but found this was of minimal assistance, describing the conduct of firing through a held-shut door as "beyond reckless" (at [22]).

Objective seriousness: Clarke

Clarke's liability arose from extended joint criminal enterprise, meaning she foresaw but did not agree to the commission of the incidental offence (at [25]). Although she followed Sheard through the premises and physically restricted AB by holding the bedroom door against him, she fired no weapon and posed no direct threat (at [26]). The court found her offending significantly less serious than Sheard's, placing it below the mid-range and towards the bottom of the middle 40% (at [27]).

Subjective matters: Sheard

The court accepted that Sheard's troubled childhood, marked by serious domestic violence and repeated sexual assaults in juvenile detention, constituted Bugmy factors reducing his moral culpability (at [41]). Accepted psychiatric evidence diagnosed him with cluster B personality disorder, PTSD, and multiple substance use disorders (at [39]). These matters lessened the emphasis on general deterrence, but the court found a countervailing need for specific deterrence and community protection given his extensive history of offending and the danger he poses (at [42]). Custody was found to be more onerous for him, and special circumstances were established by reference to his mental health, risk of institutionalisation and need for extended supervision (at [48]).

Subjective matters: Clarke

Clarke is an Indigenous woman with a background of profound disadvantage, having been removed from heroin-addicted parents at age four or five and raised largely in foster care (at [65]). Accepted psychiatric evidence established diagnoses of PTSD, conversion disorder, ADHD, and personality disorder with borderline and antisocial traits (at [77]). The court accepted that criminal activity had been normalised throughout her formative years and that this, together with her mental health conditions, indirectly contributed to the offending (at [90]). Special circumstances were found based on her epilepsy and seizure disorder (which will make custody more onerous), her pregnancy, and her need for extended community-based treatment following release (at [92]-[98]).

Sentencing and backdating

For Sheard, the indicative sentences were 8 years (count 2) and 6 years (count 4), with an aggregate of 10 years and a non-parole period of 6.5 years, reflecting special circumstances (at [60]). The sentence was backdated to 25 June 2024, allowing three months of concurrency with a 12-month non-parole period he was serving for an unrelated in-custody assault (at [62]). For Clarke, indicative sentences of 5 years (count 2) and 3.5 years (count 4) produced an aggregate of 6 years with a non-parole period of 3.5 years (at [106]). The court took a lenient approach to backdating Clarke's sentence, backdating it for the full 741 days she had spent in custody attributable to the present offences, giving a start date of 15 September 2024 (at [106]).

Orders Made

Sheard
- Convicted of counts 2 and 4 on the indictment.
- Sentenced to an aggregate term of imprisonment commencing 25 June 2024, with a non-parole period of 6.5 years expiring 24 December 2030, and a balance of term of 3.5 years expiring 24 June 2034.
- First eligible to apply for parole on 24 December 2030.

Clarke
- Convicted of counts 2 and 4 on the indictment.
- Sentenced to an aggregate term of imprisonment commencing 15 September 2024, with a non-parole period of 3.5 years expiring 14 March 2028, and a balance of term of 2.5 years expiring 14 September 2030.
- First eligible to apply for parole on 14 March 2028.

Key Takeaways

  • Where two offenders are convicted of the same offence, the basis of criminal liability remains central to the sentencing analysis. The District Court assessed Clarke's objective seriousness significantly below Sheard's because her liability arose from extended joint criminal enterprise, which required only foresight of the incidental offence rather than an agreement to commit it (at [25]-[27]).

  • Bugmy factors and diagnosed mental health conditions can operate together to reduce moral culpability and lessen the weight given to general deterrence, even without a direct causal link between the mental health condition and the offending (at [40]-[41], [91]).

  • A finding of special circumstances can rest on a combination of factors including the onerous nature of custody for a particular offender, risk of institutionalisation, and the need for an extended supervision period to address treatment needs, rather than on rehabilitation prospects alone (at [48], [92]-[98]).

  • Under section 33A(1)(a) of the Crimes Act 1900, the standard non-parole period of 9 years functions as a legislative guidepost to the seriousness of the offence and retains relevance even where the offending is not assessed as falling in the middle of the range, consistent with Muldrock (at [2]).

  • When backdating an aggregate sentence, the court may grant partial concurrency with a non-parole period served under a separate, unrelated sentence to avoid a disproportionate outcome on totality grounds, without being required to treat the sentences as wholly concurrent (at [62]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Mental Health Act 2007

Cases
- Bugmy v The Queen [2013] HCA 37
- Chandler v R [2022] NSWCCA 124
- DPP (Cth) v De la Rosa (2010) 79 NSWLR 1
- Melbom v R [2011] NSWCCA 22
- Muldrock (2011) 244 CLR 120
- Nikalovski [2018] NSWSC 1156
- R v Fisher [2024] NSWCCA 191
- R v Hemsley [2024] NSWCCA 228
- R v Rae [2013] NSWCCA 9