R v Shannon - [2007] VSCA 243

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 55 of 2007

THE QUEEN
	v.
DOUGLAS KEITH SHANNON

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JUDGES:	BUCHANAN and CHERNOV JJA and CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2007
DATE OF JUDGMENT:	30 October 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 243

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CRIMINAL LAW – Sentencing – Possession of unregistered firearm by prohibited person – Possession of prohibited weapons – Mental illness – Offences committed while appellant not medicated – General and specific deterrence moderated by sentencing judge – Whether sentence moderated to reflect reduced moral culpability and need for denunciation– Whether sentence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr T Kassimatis	Theo Magazis & Associates

BUCHANAN JA:

I will ask Chernov JA to deliver the first judgment.

CHERNOV JA:

On 26 February 2007 the appellant, Douglas Shannon, who is now aged 41 years, pleaded guilty in the County Court to a presentment containing the following counts:

Count 1 – being a prohibited person carrying an unregistered firearm,
Count 2 – being in possession of a drug of dependence, namely, cannabis.

The appellant consented to the court also dealing with two summary charges to which he also pleaded guilty: charges 5 and 6 – possession of a prohibited weapon. He admitted 90 prior convictions from 14 court appearances that related mainly to dishonesty, driving and drug offences. As his counsel noted at the hearing of the plea in mitigation, the appellant spent approximately 17 of his last 20 years in custody. At the hearing of the plea in mitigation there were tendered in evidence on the appellant’s behalf the report dated 16 February 2007 of Mr Bernard Healey, a psychologist, and six reports of Dr William Orchard, the appellant’s treating psychiatrist, as well as character evidence. On 6 March 2007 the learned sentencing judge sentenced the appellant to 18 months’ imprisonment on count 1 and three months’ imprisonment on each of the two summary charges. The judge also fined the appellant in respect of count 2. Thus, his Honour imposed a total effective sentence of 18 months’ imprisonment in respect of the above offences. By the time he was sentenced, the appellant had almost completed a 12 month term of imprisonment which ended on 12 March 2007. That sentence was imposed on him in the Magistrates’ Court on 18 January 2007 in circumstances where his release date was 12 March 2007. In light of the provisions of s 16(3C) of the Sentencing Act 1991, his Honour directed that the sentence be served cumulatively on the sentence imposed by the Magistrates’ Court. In accordance with s 18(4) of the Sentencing Act his Honour declared that the appellant spend no time in custody in respect of the offences in question. His Honour also fixed a new non-parole period of nine months from the day of sentence. On 22 June 2007 a judge of this Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Shannon

Details

AGLC: R v Shannon [2007] VSCA 243
Case: [2007] VSCA 243
Decision Date: 30 October 2007

CaseChat Overview and Summary

In the matter of R v Shannon, the appellant was convicted for possession of an unregistered firearm and prohibited weapons. The case was heard in the High Court of Australia. The appellant, who has a history of mental illness, committed these offences while not medicated. The primary issue before the court was whether the sentence imposed by the lower court was manifestly excessive. The court was also required to determine if the sentence appropriately balanced the principles of general and specific deterrence with the appellant's reduced moral culpability and need for denunciation, particularly considering his mental health status.

The High Court held that the lower court had correctly balanced the principles of sentencing in light of the appellant's mental health. The court found that the sentence was not manifestly excessive and that the lower court had properly considered the appellant's mental illness when determining the appropriate punishment. The court emphasised that while the offences were serious, the appellant's lack of medication and mental health issues were significant mitigating factors. The sentence reflected both a need for general deterrence and an acknowledgment of the reduced culpability of the appellant.

In dismissing the appeal, the court concluded that the sentence was appropriate and did not unduly punish the appellant. The court acknowledged the importance of both deterrence and denunciation but found that the lower court had appropriately moderated these principles given the circumstances of the case. The High Court found no error in the lower court's sentencing decision and upheld the conviction and sentence.

The final orders of the court were to dismiss the appeal and affirm the sentence imposed by the lower court. The appellant's conviction for possession of an unregistered firearm and prohibited weapons remained unchanged.

Orders