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[2024] ACTCA 33
respondent. The appeal was dismissed for want of prosecution under r 5603(3)(a) of the Court Procedures Rules 2006 (ACT), and the orders appealed from were confirmed.
2 cited instruments linked from this judgment.
Sheather appealed his sentence, arguing that it was manifestly excessive, but repeatedly did not attend appeal listings. After the DPP sought dismissal, he sent messages explaining that he could not attend the final hearing. The Chief Justice considered the history of missed appearances and the opportunities to pursue the appeal, and dismissed it for want of prosecution. The sentencing orders were confirmed. The Court did not decide the appeal ground after a full assessment of the sentence.
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1,866 words · generated 08/10/2026
In Sheather v DPP [2024] ACTCA 33, the ACT Court of Appeal dealt with a procedural application concerning Daniel Sheather's sentence appeal. McCallum CJ delivered ex tempore reasons on 22 November 2024.
The underlying sentencing orders had been made by Christensen AJ on 2 April 2024, after cancellation of Sheather's drug and alcohol treatment order dated 4 November 2021. As summarised in the appeal reasons, the sentencing orders confirmed convictions for aggravated robbery, damage property, aggravated burglary and common assault. The orders imposed terms of imprisonment with stated commencement and expiry dates, suspended a 36-month sentence from 2 April 2024 until 7 August 2026, and required an undertaking to comply with good behaviour obligations, with probation supervision conditions (para 1).
Sheather filed a notice of appeal on 29 April 2024. His sole ground was that the sentence was manifestly excessive (para 2). The appeal was first listed for 28 May 2024. Sheather did not appear then, and McCallum CJ recorded that he did not attend any of the six subsequent occasions on which the appeal came before the Court (para 3).
On 17 October 2024, the Director of Public Prosecutions applied for the appeal to be dismissed for want of prosecution and for the orders under appeal to be confirmed (para 4). On the hearing day, Sheather emailed seeking an adjournment because a family member had become ill overnight and was in emergency care (para 5). After the matter was called without an appearance, the Court arranged for him to be told that the appeal would be dismissed if he did not attend by 12:30 pm. A later Registry email reported that Sheather had said his car had broken down, he had no other transport, he was self-represented, and he was unprepared for the hearing (para 6).
McCallum CJ was not satisfied that these communications provided comfort that Sheather had the resolve or capacity to prosecute the appeal. The Court concluded that he had already been given ample opportunity to do so (para 7). The appeal was dismissed for want of prosecution and the sentencing orders were confirmed (para 8).
The judgment's central reasoning is procedural. The Court identified r 5603(3) of the Court Procedures Rules 2006 (ACT) as giving it power to dismiss proceedings for want of prosecution (para 4). It then exercised that power under r 5603(3)(a) (para 8).
The principal circumstance was the pattern of non-appearance. This was not a case in which the appellant missed only the final hearing: the judgment records one initial missed listing and six subsequent occasions on which he did not appear (para 3). The Court treated that history as important when assessing whether the appeal had been prosecuted.
The hearing-day communications were also recorded in detail. The first email arrived at 9:58 am, after the matter had been listed at 9:45 am, and sought an adjournment because of a family member's illness (para 5). The Court then communicated a deadline for attendance. At 11:57 am, the Registry reported that Sheather could not attend because of a broken-down car and lack of other transport, and that he was self-represented and unprepared (para 6). The reasons do not set out a general test for an adjournment or say that either explanation was false. They show that the Court considered those explanations against the history of prior opportunities to pursue the appeal.
McCallum CJ also referred to the apparent character of the sentence. She noted that, without the sentencing reasons or the circumstances of the offending, a wholly suspended term for offences including aggravated robbery and aggravated burglary did not, on its face, readily appear manifestly excessive (para 2). She later said that this apparent feature was relevant to her assessment (para 7). That observation was expressly qualified: the Court did not have the materials needed to assess the sentence fully, and it did not determine the appeal ground on its merits.
The operative basis for the result was therefore dismissal for want of prosecution, not a reasoned conclusion that the sentence was not manifestly excessive. The final orders both dismiss the appeal and confirm the orders appealed from (para 8).
The judgment supplies a narrow statement of the applicable procedural power. Before making its orders, the Court said that r 5603(3) of the Court Procedures Rules 2006 (ACT) empowered it to make an order dismissing proceedings for want of prosecution (para 4). It then made the dismissal order under r 5603(3)(a) (para 8).
The reasons do not set out the full text of the rule, its history, or a general test governing when dismissal should be ordered. Nor do they cite earlier cases or explain how the rule had been interpreted before this decision. It would therefore go beyond the supplied judgment to describe this case as changing or developing the law. On the material provided, the decision applies an identified procedural power to the specific history of this appeal.
The decision's procedural result is clear for this case: the appeal ended without a merits determination, and the sentencing orders were confirmed. The reasons do not establish a broader proposition that any particular number of non-appearances automatically warrants dismissal, or that particular explanations for absence can never justify an adjournment. The Court's assessment depended on the events it recounted, including the repeated missed appearances and the opportunities it considered had been available to Sheather.
The judgment also does not establish a sentencing rule about suspended sentences for aggravated robbery or aggravated burglary. The Chief Justice's comments about the sentence were qualified by the absence of the sentencing reasons and offence circumstances (para 2). Those comments should not be converted into a general sentencing benchmark.
At [4], McCallum CJ states: “The Court has power to make such an order under r 5603(3) of the Court Procedures Rules 2006 (ACT).” In plain English, the Court identified a rule-based power to dismiss a proceeding for want of prosecution. The reasons do not reproduce the full rule or discuss its interpretation beyond that point.
At [3], the reasons record that Sheather “did not appear on that occasion and has not appeared on any of the six subsequent occasions”. This describes the procedural history that informed the Court's assessment. It is not a statement that every missed appearance, taken alone, must lead to dismissal.
At [6], the Registry reported Sheather's explanation that he could not attend because his car had broken down and he had no other transport. It also reported that he was self-represented and unprepared. The passage documents what was communicated to the Court. The judgment does not make a separate finding about the truth of those explanations.
At [7], the Chief Justice said: “In my assessment, he has been given ample opportunity to prosecute it”. This is the clearest explanation of why the Court considered dismissal appropriate in the circumstances. Read with the earlier paragraphs, it links the outcome to the repeated listings and the opportunity to pursue the appeal.
At [2], the Chief Justice's observation that the sentence did not appear facially excessive is expressly limited: she lacked the sentencing judgment and the circumstances of the offences. In plain English, the Court had a preliminary impression about the sentence as described, but not the information needed to decide the appeal ground fully.
At [8], the orders state: “The appeal is dismissed for want of prosecution” and “The orders appealed from are confirmed.” The appeal ended on procedural grounds, and the original sentencing orders remained confirmed.
The decision is relevant to a narrow procedural fact pattern: an appellant repeatedly fails to attend listings in an appeal, the respondent applies for dismissal for want of prosecution, and the Court considers the appellant's opportunities to pursue the proceeding alongside the explanations provided for non-attendance. In this case, the judgment records seven missed occasions in total, including the initial return date and six subsequent occasions (para 3).
The last-minute communications are part of the factual context, not a freestanding rule. Sheather first sought an adjournment because of a family member's illness and later reported transport problems, lack of representation, and lack of preparation (paras 5–6). The Court's decision followed its assessment of the full history rather than a stated rule that any one of those circumstances is insufficient.
The decision may be useful when analysing a dismissal application under r 5603(3)(a), particularly where the record shows repeated opportunities to progress an appeal. It does not specify a minimum number of missed appearances, define “ample opportunity”, or state what evidence would be sufficient to avoid dismissal. Those questions remain dependent on the procedural record and any applicable material not discussed in the reasons.
The case is not a merits precedent on whether a sentence for the listed offences was excessive. The Court did not undertake a full sentencing appeal analysis. Its qualified observation about the sentence should be read in that limited procedural setting.
The supplied judgment does not refer to later decisions, and the materials provided do not contain subsequent treatment of Sheather v DPP. It is therefore not possible, on this source alone, to state whether later courts have followed, distinguished, applied, or questioned the decision.
Within the judgment itself, there are no cited precedent cases and no discussion of another court's reasoning. Its express legal source is r 5603(3) of the Court Procedures Rules 2006 (ACT), with the final order made under r 5603(3)(a) (paras 4, 8). A complete account of later treatment would require additional legal sources beyond the judgment provided.
The reasons do not reproduce the text of r 5603(3) or explain any general criteria governing a dismissal application. The decision states the existence of the power and applies it to the recorded history, but does not discuss whether other considerations must be weighed in different cases.
The judgment also does not explain the circumstances surrounding each of the earlier missed listings. It records that Sheather did not appear at the initial return date or any of six later occasions (para 3), but does not detail whether he had notice of every listing, whether any previous adjournments were sought, or what procedural steps occurred on those occasions. Those details are not necessary to report the outcome, but they limit how broadly the case can be applied by analogy.
The reasons do not determine whether the sentence was manifestly excessive. The Chief Justice expressly lacked the sentencing reasons and the offence circumstances (para 2). The appeal was dismissed for want of prosecution, so the judgment does not provide a substantive assessment of the relevant sentencing considerations.
Finally, the judgment does not state what evidence or explanation might have justified an adjournment or affected the dismissal application. It records the explanations made on the hearing day and the Court's assessment of the whole history, but does not formulate a general rule for future cases.
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Sheather v DPP Citation: [2024] ACTCA 33 Hearing Date: 22 November 2024 Decision Date: 22 November 2024 Before: McCallum CJ Decision: 1. The appeal is dismissed for want of prosecution. 2. The orders appealed from are confirmed. Catchwords: APPEAL – SUPREME COURT APPEAL – Application to dismiss for want of prosecution – where appellant repeatedly failed to appear Legislation Cited: Court Procedures Rules 2006 (ACT) r 5603 Parties: Daniel Nicholas Sheather (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel No appearance (Appellant) L Thomas (Respondent) Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 8 of 2024 Decision Under Appeal: Court: ACT Supreme Court Before: Christensen AJ Date of Decision: 2 April 2024 Case Title: R v Sheather (No 3) Citation: [2024] ACTSC 86 Court File Numbers: SCC 124 of 2021 SCC 125 of 2021 McCALLUM CJ: EX TEMPORE REASONS (REVISED)
On 2 April 2024, Daniel Sheather was sentenced by Christensen AJ following the cancellation of his drug and alcohol treatment order dated 4 November 2021. Her Honour made the following orders: 2. The conviction of Daniel Nicholas Sheather of aggravated robbery (CAN 1722/2021) is confirmed and a sentence of 22 months imprisonment is imposed to commence on 8 August 2023 and end on 7 June 2025. 3. The conviction of Daniel Nicholas Sheather of damage property (CAN 14715/2020) is confirmed and a sentence of 1 month imprisonment is imposed to commence on 8 August 2023 and end on 7 September 2023. 4. The conviction of Daniel Nicholas Sheather of aggravated burglary (CAN 14712/2020) is confirmed and a sentence of 20 months imprisonment is imposed to commence on 8 December 2024 and end on 7 August 2026. 5. The conviction of Daniel Nicholas Sheather of common assault (CAN 14718/2020) is confirmed and a sentence of 4 months imprisonment is imposed to commence on 8 August 2023 and end on 7 December 2023. 6. The sentence of 36 months imprisonment is suspended from today, 2 April 2024, to 7 August 2026. 7. Daniel Nicholas Sheather is required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 2 April 2024 for a period of 28 months 6 days until 7 August 2026 with the following additional probation conditions that he accept the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him consider appropriate and obey all reasonable directions of the person supervising him.
On 29 April 2024, the offender filed a notice of appeal appealing from the orders on a single ground, namely, that the sentence is manifestly excessive. I note that, without having her Honour’s judgment or the circumstances of the offences before me, a sentence wholly suspending the term of imprisonment for offences of the nature described, including aggravated robbery and aggravated burglary, is not, on its face, one that would readily be regarded as excessive. Those are offences for which, in other jurisdictions at least, offenders can expect to be sentenced for considerable periods of full-time imprisonment.
The notice of appeal when stamped gave a return date of 28 May 2024 at 2:30pm. The appellant did not appear on that occasion and has not appeared on any of the six subsequent occasions, including today, that the appeal has been before the Court.
On 17 October 2024, the Director of Public Prosecutions filed an application seeking to have the proceedings dismissed for want of prosecution and the orders appealed from confirmed. The Court has power to make such an order under r 5603(3) of the Court Procedures Rules 2006 (ACT).
Upon being informed of the application and its listing for this morning, the appellant sent an email which specifies today’s date and identifies him to be of “no fixed address.” The email, which was received by the Court at 9:58am, the matter having been listed before me at 9:45am, read as follows: To whom it may concern, Daniel Nicholas Sheather has become aware of a family member falling ill overnight and is now in emergency therefore seeking adjournment at today’s hearing. Many Thanks, Daniel Sheather
When the matter was called, there being no appearance by or for Mr Sheather, I requested my Associate to write to Mr Sheather at the email address from which his email came to advise him that if he did not attend court by 12:30pm today, the appeal would be dismissed. It is apparent that he received that email because he responded to it. The response was communicated via an email from the Registry in the following terms: Please be advised that Mr Sheather contacted registry just a few minutes ago [the email is time stamped 11:57am] and has advised that he is unable to attend his hearing this afternoon as his car has broken down and he has no other means of transport to attend court. He has further disclosed that he is self-represented and is unprepared for the hearing, and with his current financial circumstances he is unable to obtain a legal representative. I advised Mr Sheather that his message will be passed on to Chambers and it is encouraged that he appears this afternoon.
The email communications do not give me any comfort that the appellant has the resolve or capacity to prosecute his appeal. In my assessment, he has been given ample opportunity to prosecute it in the numerous mentions of the proceedings to which I have referred. Furthermore, I have regard to the fact that, as already indicated, a sentence that is wholly suspended and subjects him only to a good behaviour bond under supervision, provided he complies with the conditions of the bond, does not, on its face, appear to be a manifestly excessive sentence for offences of the kind referred to in the orders of Christensen AJ. Orders
Accordingly, pursuant to r 5603(3)(a) of the Court Procedures Rules, I make the following orders: (1) The appeal is dismissed for want of prosecution. (2) The orders appealed from are confirmed.
I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date:
Sheather
DPP [2024] ACTCA 33
The appeal was dismissed for want of prosecution under r 5603(3)(a) of the Court Procedures Rules 2006 (ACT), and the orders appealed from were confirmed.