R v Shannon

[2003] NSWCCA 106

CITATION:	Regina v Shannon [2003] NSWCCA 106
HEARING DATE(S):	10/04/03
JUDGMENT DATE:	17 April 2003
JUDGMENT OF:	Hidden J at 1; Bell J at 1; Buddin J at 1
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW: Sentence - Crown appeal - dangerous driving occasioning grievous bodily harm (two counts) - driving offences on Form 1 - mature woman with significant health problems, physical and mental - driving while affected by prescription drugs - exceptional case.
LEGISLATION CITED:	Crimes Act, 1900 - s 52A(3)(a)
CASES CITED:	Attorney-General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518 Pearce v The Queen (1998) 194 CLR 610 at 623-4 Regina v Engert (1995) 84 A Crim R 67 at 70-1 Regina v Harris (2001) 125 A Crim R 27 Regina v Whyte [2002] NSWCCA 343 at par 215
PARTIES :	Regina Candy Patricia Shannon
FILE NUMBER(S):	CCA 60014/03
COUNSEL:	PJP Power SC - Crown D Brezniak - Respondent
SOLICITORS:	SE O'Connor - Crown Ford Gaitanis Lawyers - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/51/0143 01/51/0178
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

60014/03

HIDDEN J
BELL J
BUDDIN J

Thursday, 17 April, 2003

Regina v Candy Patricia SHANNON

Judgment

1 THE COURT: This Crown appeal against inadequacy of sentence was heard on 10 April 2003. The Court dismissed the appeal on that day. These are our reasons for that decision.

2 The respondent, Candy Patricia Shannon, pleaded guilty before Christie DCJ to two counts of dangerous driving occasioning grievous bodily harm, being under the influence of a drug: an offence under s 52A (3) (a) of the Crimes Act, carrying a maximum sentence of seven years imprisonment. She also asked his Honour to take into account on a Form 1, two summary charges: driving under the influence of a drug and driving whilst her licence was suspended. On the first count his Honour sentenced her to a fixed term of nine months imprisonment, to date from 12 December 2002. On the second count, taking into account the matters on the Form 1, he sentenced her to imprisonment for eighteen months, also to date from 12 December 2002, with a non parole period of nine months. The overall sentence, then, was eighteen months with a non-parole period of nine months.

Facts

3 The first offence of dangerous driving occasioning grievous bodily harm occurred on 17 November 2000. The respondent was driving from her home at Woolgoolga, when her car veered across double unbroken lines and collided with an oncoming car. Both cars were extensively damaged and she and the other driver were trapped in their cars for a period of time. The driver of the other car suffered severe multiple fractures to his left leg, severe bruising and lacerations and nerve damage to the right side of his face. A blood sample taken from the respondent revealed a level of morphine sufficient to have impaired her driving ability. It also detected the presence of cannabis, suggesting that she had used that drug recently.

4 On 31 July 2001 the respondent was stopped by police after she was observed to be driving erratically in the area of Valla West. Blood and urine tests on that occasion revealed a significant level of morphine and diazepam. This led to the first of the charges taken into account on the Form 1. On 9 August 2001, after she failed a medical test, her driver’s licence was suspended until 9 November 2005. The other charge on the Form 1, driving whilst suspended, arose from the fact that she was subject to that suspension at the time of the second offence of dangerous driving occasioning grievous bodily harm.

5 That offence occurred on 3 September 2001. Whilst she was driving in the Woolgoolga area, the respondent’s car again veered to the incorrect side of the road and collided with an oncoming car. The driver of that car suffered a number of injuries, including a closed head injury and facial neurological damage, as well as severe injuries to his left knee which could leave him with a degree of permanent disability. A blood sample taken from the respondent again revealed a significant level of morphine and diazepam, together with evidence of recent use of cannabis.

6 Apart from the suspension of her licence, the respondent’s vehicle was also unregistered on this occasion. She told police who attended the scene that the car had been driven by a man who had absconded. However, on the following day she admitted that she was the driver.

7 The bare recitation of these facts is alarming, but the offences must be understood in the light of the respondent’s unusual subjective case.

Subjective case

8 The respondent was forty-seven years old at the time of the offences and is now forty-nine. She had a traffic record, of little significance for present purposes, but no previous convictions. She is married, although she was separated from her husband at the relevant time. That union produced a son, who was then in his mid-teens. She had two children, now adults, from a previous marriage.

9 Even though the relationship was over, her husband remained supportive of her and gave evidence. Also before his Honour were a pre-sentence report and a number of medical reports. She had worked as a teacher’s aide until she suffered a back injury in the mid-nineties. Since then she has had a number of health problems, both physical and mental. Difficulties faced by the children of her first marriage contributed to her mental state. At times both of them were living with her and her present husband. The son of the first marriage was a heroin addict, was prone to stealing and was suicidal. The daughter of that marriage became pregnant at the age of fifteen.

10 The respondent’s husband summarised the situation in this way:

Our marriage had been failing: the stress of Candy’s nervous breakdowns; Michael the eldest son, his heroin addictions; Kelly, Candy’s daughter, she’d at 15 years old, got pregnant, came home – we had six, seven people living in the house and I was trying to run the house because Candy was too sick to. We had doctors coming backwards and forwards. Most of the time Candy lives in the bedroom I suppose. So … that was what basically pulled the marriage apart. I’ve stayed as a friend and I go back and have time with my son most weekends, holidays.

11 He also explained that she was very close to their own son, William, who had helped care for her in recent years. As he put it, “William’s the sole purpose for Candy to live …”. This is significant when one considers her explanation for driving on 3 September 2001, while her licence was suspended and her car unregistered. She told police and the Probation and Parole officer that she needed to pick up William from school to take him to an appointment relating to his further education, and that she had arranged for a friend to drive her for this purpose but the friend had let her down.

12 Morphine and diazepam were both drugs which she had been prescribed. She was taking morphine as a slow release narcotic for her back pain and the diazepam as a sleeping draught. These were but two of a large number of drugs, including anti-depressant medications, which she had been prescribed over the years. A medical report described a history of “multiple physical problems”, including restless leg syndrome, pain syndrome and chronic back problems. In September 2000 she underwent lumbar spinal stabilisation surgery, but this did not relieve her pain.

13 Perhaps not surprisingly in all the circumstances, she had also been diagnosed as suffering from a major depressive disorder. She tried many anti-depressant medications but they did not help her. She had one admission to a psychiatric unit because of suicidal thoughts. She told the Probation and Parole officer that she felt “helpless and hopeless” about her medical conditions and resented having to rely upon medication to function.

14 Notwithstanding her plea of guilty to the first charge of dangerous driving occasioning grievous bodily harm, she told the Probation and Parole officer that she did not consider that she had been at fault in that accident. As to the accident the subject of the second charge on the indictment, however, she expressed contrition which the officer accepted as genuine. In a handwritten statement to the sentencing judge she described her offences generally as “unforgiveable”. She wrote that she felt she had made progress, with support, in the period leading up to sentence and that she had begun to appreciate that there other ways of dealing with her many problems than resort to medication.

Reasons for sentence

15 Judge Christie clearly recognised the seriousness of the offences, particularly the second offence of dangerous driving occasioning grievous bodily harm. He concluded that a custodial sentence was inevitable and, while expressing “the greatest sympathy for the prisoner’s predicament”, he had this to say:

Nevertheless I have a responsibility to protect the public, and to venture upon the roads on three occasions within a period of approximately a year, significantly influenced by prescription drugs, is just something the community would not expect the community’s representatives to tolerate. Judges are but representatives of the community …”

16 His Honour noted that the second offence of dangerous driving occasioning actual bodily harm was committed while the respondent was waiting to be dealt with in respect of the previous offences. He referred to the reformulated guidelines for offences under s52A of the Crimes Act in Reg v Whyte [2002] NSWCCA 343 at par [215] ff, accepting a sentence of two years as the appropriate starting point. However, he felt it proper to pass a lesser sentence because of the “very unusual objective circumstances” of the case and the “compelling subjective circumstances” of the applicant. This led to the sentence of imprisonment for eighteen months on the second count in the indictment, although it appears that his Honour saw that term as sufficient to reflect the criminality of all the offences. He made no reference to the question whether cumulative sentences were called for before passing the wholly concurrent term of nine months imprisonment in respect of the first count.

The appeal

17 The Crown prosecutor in this Court submitted that Judge Christie had fallen into error in a number of respects. He argued that:

(a) His Honour failed to determine the sentence appropriate for each of the counts of the indictment and then to consider the question of accumulation or concurrence, the exercise required by Pearce v The Queen (1998) 194 CLR 610 at 623-4. The proper exercise of discretion would have led to the imposition of cumulative sentences.

(b) The sentence on the second count was manifestly inadequate, given the objective seriousness of the offence. On that occasion, the respondent was aware from the earlier accident of the serious consequences which could result if she chose to drive while on medication. In addition, the other three charges were pending against her at the time.

(c) The sentence on the second count failed to give appropriate weight to the matters on the Form 1, themselves committed after the offence the subject of the first count. The Crown prosecutor referred to authorities on the proper approach to Form 1 matters, including Reg v Harris (2001) 125 A Crim R 27 and Attorney-General’s Application under Section 37 of the Crimes (Sentencing Procedure) Act1999 (No 1 of 2002) [2002] NSWCCA 518.

(d) That sentence also failed to meet the need for deterrence, not only general but also particular, given the pattern of re-offending disclosed by the evidence.
(e) Finally, while not challenging his Honour’s finding of special circumstances, the non-parole period of nine months itself failed adequately to reflect the respondent’s criminality.

18 These were all arguments of substance, but we remained unpersuaded that the Court should intervene. As Judge Christie recognised, this was a most unusual case. While the offences were undoubtedly serious, they were committed by a mature woman of good character who was beset by severe emotional difficulties and plagued by poor health, both physical and mental. The drugs by which she was affected on the occasion of both accidents were part of a prescribed course of medication. (We put to one side the fact that cannabis was also detected on each occasion, a matter to which the Crown prosecutor made no reference in his submissions. As we understand the evidence, it did not contribute in any significant way to her manner of driving on either occasion.)

19 The Crown prosecutor’s argument that the sentence on the second count in the indictment should have been cumulative assumes that the first count necessarily called for a full time custodial sentence. In the unusual circumstances of this case, standing alone, it might not have done. If Judge Christie did assess an overall sentence for all the offences without separate consideration of the sentence appropriate for the first count, he would have fallen into the error identified in Pearce (supra). However, that error might well have been to the detriment of the respondent, resulting in a full time custodial sentence on that count when a more lenient disposition might have met the requirements of justice.

20 Given the respondent’s major depressive disorder, the question of general deterrence might have been affected by the special considerations governing offenders suffering a mental illness which were summarised by Gleeson CJ in Reg v Engert (1995) 84 A Crim R 67 at 70-1. However, this does not appear to have been raised before Judge Christie and it was not fully argued in this Court. Particular deterrence was a matter which required consideration but, as we have said, there was evidence of the applicant’s remorse and of her developing insight into her problems, including her dependence upon medication. While not expressed by Judge Christie, the conclusion that she was unlikely to re-offend was clearly open.

21 The circumstances of the offence the subject of the second count, together with the offences on the Form 1, might well have justified a higher sentence and non-parole period. On the other hand, the experience of imprisonment would be particularly severe for a woman of her age, background and state of health. In this exceptional case, we were not satisfied that his Honour’s sentencing order betrayed such inadequacy as to call for this Court’s intervention on a Crown appeal.

22 It was for these reasons that the appeal was dismissed.

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Last Modified: 04/24/2003