Shannon v R

1. [1]

   MACFARLAN JA: I agree with Bellew J.

2. [2]

   BELLEW J: Kurt Patric Shannon (the applicant) was arrested on 29 June 2018 and charged with the following offences (the present offences): [1]

3. [3]

   At the time of his arrest for the present offences, the applicant faced a number of other matters (the additional offences) which were pending before the Local Court, namely:

4. [4]

   On 30 April 2019, the applicant was sentenced in respect of the additional offences to an aggregate term of imprisonment of 21 months to date from 28 June 2018 and to expire on 27 March 2020. A non-parole period was imposed, which expired on 27 September 2019. [6]

5. [5]

   The applicant appeared before the District Court for sentence in respect of the present offences on 17 October 2019, and was sentenced on 18 October 2019. At that time, he had spent a period of 21 days in custody which was solely referable to those offences. The sentencing judge imposed an aggregate term of imprisonment of 7 years and 6 months, with a non-parole period of 4 years and 6 months, to date from 28 March 2019.

6. [6]

   The applicant, who was self-represented before this Court, now seeks leave to appeal against that sentence on the grounds considered below. The applicant filed a notice of intention to appeal against sentence on 5 November 2019 which, following an extension of time, expired on 5 June 2020. A notice of appeal, grounds of appeal and submissions were filed on 13 August 2021. In these circumstances, the applicant requires an extension of time in which to file the notice of appeal. In circumstances where the applicant has appeared unrepresented, that extension should be granted.

7. [7]

   The applicant sought to rely on an affidavit of 30 September 2021. It was explained to the applicant that the Court would consider that affidavit in the event that it came to the question of re-sentence. [7]

THE FACTS OF THE PRESENT OFFENDING

1. [8]

   The sentencing judge found the facts of the present offences to be as follows. [8]

2. [9]

   One 23 June 2018, police attended Strickland Forest Road, Somersby and found a white cylinder approximately 150cm long and 15cm in diameter, inside which they located:

   1. (1)

      an unregistered shortened 12 gauge Squires Bingham Bentley repeating pump action shotgun, with the butt stop and a portion of the barrel removed, which was in working order;

   2. (2)

      a .450 calibre British Bulldog five chamber revolver, which was not in working order due to a broken flat spring;

   3. (3)

      an unregistered .32 Winchester Centre Fire Calibre Winchester model 92 repeating lever action rifle which was in working order;

   4. (4)

      an unregistered shortened, Amadeo Rossi double barrel (side by side) shotgun, which was in working order;

   5. (5)

      a .22 calibre single shot pen pistol which was in working order (the manufacturer of which could not be identified);

   6. (6)

      two shortened wooden firearm butt stops;

   7. (7)

      a quantity of cartridges and ammunition; and

   8. (8)

      a clear resealable bag containing 3.23g of a prohibited drug, namely 3,4 methylenedioxymethamphetamine.

3. [10]

   The contents of the cylinder were linked to the applicant following forensic analysis. On 29 June 2018, police executed a search warrant at the applicant's premises and located (inter alia) a quantity of methylamphetamine, a total of $13,440.00 in Australian currency and a quantity of ammunition. Police also found a number of other items in the premises which were consistent with drug use and/or drug supply, including a glass pipe, scales, butane burners and clear resealable bags.

4. [11]

   Subsequent analysis of a phone seized during the execution of the search warrant established that the applicant had engaged in the supply of 118.5g of methylamphetamine between 26 May 2018 and 29 June 2018. The individual quantities of methylamphetamine supplied in that period ranged from 1.7g to 7g. Analysis of a second phone established that the applicant had engaged in the supply of a further 47.75g of methylamphetamine between 3 April 2018 and 31 May 2018. The individual quantities of methylamphetamine supplied in that period ranged from .875g to 7g.

THE SENTENCE PROCEEDINGS

1. [12]

   In the course of the sentence proceedings, and in the context of considering the fact that the applicant had served a sentence for the additional offences whilst refused bail for the present offences, the following exchange took place between the sentencing judge, the Crown and the solicitor then appearing for the applicant: [9]

The reasons of the sentencing judge

1. [13]

   Against the background of the exchange set out above, the sentencing judge concluded as follows: [10]

Submissions of the applicant

1. [14]

   The applicant submitted that the extent to which the sentencing judge had backdated the commencement of his sentence for the present offences was unfair, and that her Honour had erred in not backdating the sentence to the date on which he was first taken into custody, i.e. 29 June 2018.

Submissions of the Crown

1. [15]

   The Crown submitted that it was evident from what had transpired at the sentence proceedings, as well as from the reasons of the sentencing judge, that her Honour was cognisant of the need to give careful consideration to the principle of totality. It was submitted that her Honour had had regard to that principle, and had carefully structured a sentence which took into account the whole of the applicant’s criminality, fulfilled the purposes of sentencing and reflected proper regard having been paid to the principle of totality.

CONSIDERATION

1. [16]

   There is no general rule that governs whether sentences should be imposed concurrently or cumulatively. Issues of that nature are determined according to (inter alia) the principle of totality, [11] and by the exercise of a broad discretion. [12] it is evident that her Honour gave close consideration to all relevant principles, including the principle of totality, and there is nothing in her Honour’s reasons to suggest that there was a miscarriage of the sentencing discretion.

2. [17]

   Moreover, it is clear that when her Honour indicated the extent to which she was proposing to backdate the sentence for the present offences the applicant’s solicitor did not wish to be heard against such an approach. That amounted, in effect, to a concession by the applicant’s solicitor that such approach was within the bounds of the proper exercise of her Honour’s sentencing discretion. It is well settled that this Court will have a reluctance to entertain arguments which seek to resile from concessions made at first instance, and that there is a need in such a case to establish that there has been a miscarriage of justice before the Court will intervene. [13] In circumstances where her Honour was clearly aware of the relevant principles, and where her approach to the issue of backdating the sentence was sound, this is not a case where there could be any suggestion that a miscarriage of justice has occurred.

3. [18]

   For these reasons this ground of appeal is not made out.

Submissions of the applicant

1. [19]

   In support of this ground, the applicant generally relied on what he submitted were the unduly harsh conditions of his custody, brought about by the current pandemic.

Submissions of the Crown

1. [20]

   The Crown pointed out that the applicant was sentenced on 18 October 2019, well before the outbreak of the pandemic. The essence of the Crown's submissions was that in those circumstances there was no basis for the intervention of this Court.

Consideration

1. [21]

   In Cabezuela v R [14] Walton J (with whom Hoeben CJ at CL and Harrison J agreed) concluded that there was no basis for the admission of new evidence as to the implications of the pandemic on an offender’s conditions of custody where that offender had been sentenced before its onset. Subsequently, in Toller v R [15] Beech-Jones J (as his Honour then was, and with whom Macfarlan JA and Davies J agreed) said the following:

2. [22]

   The applicant was sentenced on 18 October 2019. That was some time before the onset of the pandemic in the early part of 2020. In these circumstances, the applicant has failed to establish any basis for intervention by this Court, and this ground of appeal is not made out.

ORDERS

1. [23]

   I propose the following orders:

   1. (1)

      The time for filing a notice of appeal for leave to appeal against sentence is extended to 14 February 2022.

   2. (2)

      Leave to appeal is granted.

   3. (3)

      The appeal is dismissed.

   4. (4)

      The Registrar is to forward a copy of this judgment to the applicant by pre-paid post.

2. [24]

   DHANJI J: I agree with Bellew J and would add only the following.

3. [25]

   The current pandemic has had a significant impact on many people, including prisoners. It is obviously difficult to manage the spread of disease in a prison environment with a consequent impact on inmates: see Rakielbakhour v DPP [2020] NSWSC 323; Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186. It appears that managing the custodial environment has become even more difficult in recent times as a result of the spread of the disease in the community and its consequent impact on staffing levels within the Department of Corrective Services: see Director of Public Prosecutions (Cth) v Habkouk [2022] NSWSC 98 at [34]-[35]. There is no doubt that, as a result, the applicant and many others are serving sentences in conditions more onerous, and often significantly more onerous than had been anticipated at the time of sentence. However, for the reasons given by Bellew J, there are constraints on the circumstances in which this Court can properly intervene in an appeal of this nature.