Regina v Daniel Shanks - [2002] NSWCCA 438

CITATION: Regina v Daniel Shanks [2002] NSWCCA 438

FILE NUMBER(S): CCA 60498/01; 60534/01

HEARING DATE(S): 29/10/02

JUDGMENT DATE:
29 October 2002

PARTIES :

Regina
Daniel John Shanks

JUDGMENT OF: Dunford J at 44; Kirby J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :
00/21/0075; 00/21/0238; 00/11/0572:
01/21/0209

LOWER COURT JUDICIAL
OFFICER : Neild DCJ: Black DCJ

COUNSEL : P Barrett (Crown)
In Person (Appl)

SOLICITORS: S E O'Connor (Crown)
In Person (Appl)

CATCHWORDS: CRIMINAL PRACTICE & PROCEDURE - Appeal against severity of sentence - Armed robbery in company - On parole - Break and enter in circumstances of special aggravation - Escape whilst at Court

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Pearce v The Queen (1998) 194 CLR 610
R v Burke [2002] NSWCCA 353
R v Thomson (CCA, unreported, 21 May 1986)
Regina v Simonds (CCA, unreported, 6 May 1991)

DECISION: Apeal dismissed

60498/01

DUNFORD J
KIRBY J

Tuesday 29 October 2002

REGINA v Daniel John SHANKS

Judgment

1 KIRBY J: Daniel John Shanks (the applicant) seeks leave to appeal against the sentence imposed by Neild DCJ in the District Court on 16 July 2001. Mr Shanks pleaded guilty to three charges, namely:

· First, robbery whilst armed with a dangerous weapon (s97(2) of the Crimes Act 1900) (the Act);

· Secondly, break and enter in circumstances of special aggravation (s112(3) of the Act);

· Thirdly, steal a motor vehicle (s154AA of the Act).

2 In addition, Mr Shanks acknowledged guilt in respect of a further charge of break and enter, which he asked his Honour to take into account on a Form 1. His Honour did so on the second charge.

3 The offences were plainly serious. The first and second charges carried a maximum penalty of twenty-five years. The maximum penalty for the third offence, that of stealing a motor vehicle, when presented on indictment, carried a penalty of imprisonment for ten years.

4 The offences were the more serious because they were committed whilst the applicant was on parole. On 12 December 1995 Mr Shanks was sentenced in the District Court on five counts of armed robbery. The term imposed was six and a half years, dating from his arrest on 9 May 1995. A non-parole period of four years was fixed.

5 Mr Shanks became eligible for parole on 9 May 1999. He was released on that day. Within a matter of months, he had committed the offences the subject of this appeal. The robbery was committed on 24 August 1999; the break enter and steal on 4 October 1999. The motor vehicle, the subject of the third count, was stolen in early October 1999.

6 His Honour Neild DCJ fixed the following penalties in respect of the three counts:

· On the first count, robbery whilst armed with a dangerous weapon, his Honour sentenced Mr Shanks to imprisonment for 8 years, made up of a non-parole period of 5 years, with an additional…

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 Regina v Daniel Shanks

Details

AGLC: Regina v Daniel Shanks [2002] NSWCCA 438
Case: [2002] NSWCCA 438
Decision Date: 29 October 2002

CaseChat Overview and Summary

The appeal of Daniel Shanks against the severity of his sentence for armed robbery in company was heard by the Court of Appeal. Shanks, already on parole, committed the crime while escaping custody during a court appearance. The case raised questions about the appropriate sentencing for a repeat offender under exceptional circumstances. The legal issues included whether the sentencing judge had properly considered the special aggravating factors and the parole breach in determining the sentence's severity.

The Court of Appeal examined whether the trial judge had correctly applied the principles of sentencing, particularly in relation to the special aggravating factors and the breach of parole. The Court found that the trial judge had adequately considered the circumstances of the crime, including the parole breach, and the necessity for general deterrence. The Court concluded that the sentence imposed was neither manifestly excessive nor inadequate and upheld the sentence as appropriate given the nature and circumstances of the offence.

In upholding the sentence, the Court of Appeal confirmed that the trial judge had appropriately balanced the need for punishment and deterrence against the offender's circumstances. The Court did not find any error in the trial judge's assessment of the aggravating factors or in the overall sentencing approach. The appeal was dismissed, and the original sentence was confirmed as just and appropriate under the circumstances.

Orders