Regina v Shannon
[2002] NSWCCA 115
•25 March 2002
CITATION: REGINA V SHANNON [2002] NSWCCA 115 FILE NUMBER(S): CCA 60661 of 2001 HEARING DATE(S): 25/3/2002 JUDGMENT DATE:
25 March 2002PARTIES :
REGINA
DAVID AUSTIN SHANNONJUDGMENT OF: Levine J at 1; Carruthers AJ at 20
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 00/61/0107 LOWER COURT JUDICIAL
OFFICER :Coleman DCJ QC
COUNSEL : Applicant - PJD Hamill
Crown - PE BarrettSOLICITORS: Applicant - Nyman Gibson & Co
Crown - SE O'ConnorCATCHWORDS: Sentence - Crimes Act,1900 s33B and Firearms Act, 1996 s7 - partially cumulative sentences - proper allowance for special circumstances LEGISLATION CITED: Crimes Act 1900 s33B
Firearms Act 1996 s7
Prisoners (Interstate Transfer) Act 1982CASES CITED: R v Salt (CCA 26 August 1984)
R v Reid [2001] NSWCCA 364DECISION: That leave to appeal be granted; That the appeal be dismissed
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DLJ: 1
(Ex Tempore – Revised)
REGINA v SHANNON David
60661 of 2001
25 MARCH 2002LEVINE J
CARRUTHERS AJ
1 LEVINE J: David Austin Shannon seeks leave to appeal against the asserted severity of sentences imposed upon him by his Honour Judge Coleman QC in the District Court on 13 September last year.
2 The sentences were imposed at the end of what was rightly characterised as a complex history in terms of the indicting of the applicant for the relevant offences, arising from the factual matters described in some considerable detail by the learned sentencing judge in his remarks on sentence set out below.
3 The events might be summarised thus: that on an interstate car journey, the applicant was armed in the course of that journey. The vehicle in which he was a passenger came upon a motorcyclist and two shots at least were fired by the applicant at the motorcyclist; one hitting the victim and causing injury to him.
3 This bare narration of the events points to criminality of, in my view, a substantial degree of seriousness. An explanation was forthcoming in the proceedings below to the effect that the occupants of the vehicle were members of a motorcycle group, the Gypsy Jokers, in rivalry with the group, the Banditos, of which the victim, Mr Bobos was a member.
4 In the end, the applicant pleaded guilty to an offence under s 33B of the Crimes Act 1900, namely, that on 30 January 2000, he used an offensive weapon, a Smith & Wesson revolver with intent to commit an indictable offence. He was also charged with possessing an unlicensed pistol, contrary to s 7 of the Firearms Act 1996 to which he pleaded guilty.
5 The maximum penalty applicable in relation to the s 33B offence is 12 years imprisonment and 10 years in relation to the firearm offence.
6 The sentence imposed on the applicant in relation to the firearm offence was a fixed term of 18 months to commence on 26 November 2000 and to expire on 25 May 2002. In respect of the sentence for the offence under s 33B the sentence was a total sentence of 6 years commencing on 26 May 2001, that is partially concurrent with and cumulative to (commencing 6 months after the firearm sentence) and expiring on 25 May 2007 with a non-parole period of four years commencing on 26 May 2001 and expiring on 25 May 2005.
7 The learned sentencing judge in his remarks on sentence dealt with the factual circumstances in some detail:
"About 6.30pm on 30 January 2000 Paul Bobos left Mildura in Victoria to travel to work at Buronga Winery just across the border in New South Wales riding a black Hazlet Davidson motorcycle. Mr Bobos was a member of the Banditos motorcycle club and at the time was wearing his colours, that is a leather vest with the Banditos insignia clearly displayed on the rear. The front forks of the motorcycle were emblazoned with the name “Banditos”. Mr Bobos was riding on the Silver City Highway in New South Wales travelling west at about 110 kilometres per hour. Mr Bobos heard a loud bang and then felt a sharp pain in the chest. He looked to his right and in the lane beside him saw a cream coloured Holden Commodore Station Wagon sedan.
The car was being driven by the prisoner, Robert Cameron and William James Fuller was sitting in the front passenger seat and the prisoner David Shannon was in the rear seat. All three men in the car were members of the Gypsy Jokers motor cycle club which is a rival gang to the Banditos motor cycle club…
The prisoner David Shannon, fired one shot at Mr Bobos which entered his chest and exited in the shoulder region. After feeling the sharp pain to the chest Mr Bobos changed down gears and braked hard almost coming to a stop and the accelerated around the car on the right hand side. As he did so, David Shannon moved to the other side of the back seat and fired a further round which hit the rear tyre of Mr Bobos’ motor cycle causing it to go flat. Mr Bobos laid flat against the petrol tank and accelerated towards the Buronga Winery.
The prisoner, Robert Cameron, pulled the car off the side of the road and after executing a U-turn rove off at high speed in the opposite direction towards the Stuart Highway. Mr Bobos managed to drive his motor cycle to the Buronga Hill Winery and collapsed in front of the administration building. He was able to give a description of a cream coloured Commodore VB/VC Sedan which, he said, contained three men heading to Sydney. Police and ambulance were notified and in the ambulance on the way to hospital Mr Bobos told the police constable that he did not know who did it but repeated that they were in a cream coloured VB Commodore Station Wagon with three people on board.
Approximately 10 kilometres west of Euston two highway patrol officers came upon the Commodore Station Wagon which was travelling at about 100 kilometres per hour and noticed that the person in the rear seat was moving about in his seat and disappeared from view several times. Other police were summoned on the Stuart Highway and approximately 15 kilometres west of Euston the vehicle was pulled over
Robert Cameron got out of the driver’s seat and David Shannon got out of the rear passenger seat and William Fuller got out of the front passenger’s seat. The three men were searched. The prisoner, Robert Cameron, had a Colt .32 pistol inside his shirt. William Fuller was carrying a Brownie .380 pistol and holster.
The three were taken into custody back to Darlington police station and the vehicle was also taken to that place and impounded. A subsequent search located a Smith and Wesson revolver inside the left rear door cavity behind the vinyl lining.
The Harley Davidson motorcycle ridden by Mr Bobos was examined, a bullet hole was observed in the side wall of the rear tyre. Metal bullet fragments inside the tyre were later analysed and positively identified as having been fired from the Smith and Wesson revolver which was found inside the rear left door of the Commodore Station wagon. Later forensic examination of the clothing worn by Mr Bobos found entry and exit holes consistent with a bullet travelling from front to back. It is not clear how many rounds were fired but there were at least two. They had being the one that passed through Mr Bobos’ body and the other which exited the rear tyre and fragmented.
Some months later Mr Bobos died in a totally unrelated incident. Mr Bobos did not know either Mr Cameron or Mr Shannon and extensive police inquiries did not disclose any connection between the parties”.At the Mildura base Hospital Mr Bobos was treated for a gunshot entry wound to the left side of the chest and an exit would on his back with a scapula. He underwent emergency treatment for a large haemothorax and for entry into the right chest. Endacostal drainage was inserted and he remained in hospital and was treated with antibiotics. He subsequently made a satisfactory recovery.
8 The nub of the applicant’s complaint is, first, that his Honour was in error in not affording an element of leniency by giving proper significance to the antecedents of the applicant in the context of the subjective circumstances of the applicant's life over the relevant periods. Second, that the effect of the partial cumulation was to deprive the applicant of such benefit of special circumstances as his Honour in fact found.
9 In relation to the first component, the applicant's antecedents, as Mr Hamill correctly pointed out, they fell into two categories in terms of chronology. The first was a series of offences committed whilst the applicant was young and in unstable domestic circumstances. The second after the passage of at least a decade, were offences relating to the use of motor vehicles which occurred in more settled circumstances domestically and particularly in employment. Neither group, it is submitted, and rightly so, evidenced any prior act of violence.
10 In his remarks on sentence, his Honour said:
"As far as Mr Shannon is concerned, his antecedent criminal record is not a good one and is not such to entitle him to any leniency."
From his remarks on sentence it cannot be concluded that his Honour disregarded the report of the psychologist, Mr Taylor, and other subjective material, to provide that background against which Mr Hamill submitted the antecedents should have been viewed.
11 His Honour, in my view, was not in error in taking that approach as a matter of principle and nor in the light of the serious nature of the antecedent offences committed by the applicant in terms of motor vehicle offences which could be regarded as indicative of a defiance of the law as a driver. Further, his Honour was not in error in coming to that view when one considers what is submitted his Honour did not say in relation to the co-offender Cameron. It is clear that in the case of Cameron, no submission could be made on behalf of that person that his criminal record warranted leniency at all. His Honour did no more, in my view, than that which he was entitled to do. He considered the antecedents, did not take it into account by way of aggravation but merely set it to one side as a matter of principle, as he was entitled to, as offering no basis for leniency.
12 As to the second component of the complaint against the sentence, namely, that it was so structured in effect to deprive the applicant of the finding of special circumstances, and that due allowance should have been made for that, and in the end the sentence should be reduced. The following observations need to be made.
13 His Honour was acutely conscious of the powerful subjective circumstances. His Honour was acutely conscious of the fundamental principle not to permit those to outweigh the objective seriousness of the offence. The objective seriousness of the s 33B offence was constituted by the unsuspecting victim being shot at on the Silver City Highway, in circumstances involving dangers to him and other persons, even though there was no premeditation.
14 The sentence imposed, with respect to the s 33B offence, was not, in my view, discretely, in error and nor was there any error in that imposed in relation to the firearm offence. More critically, however, there was no error in the sense leading to the overall result of which complaint is made.
15 The s 33B offence was serious. The firearm offence was the subject of no evidence as to why the weapon was being carried and this properly can be viewed as one of a distinct nature and thus amenable to the proper application of a cumulative sentence. The end result is that the applicant obtained the benefit of a discount for special circumstances of four and a half months in the proper cumulation of sentences for two separate offences as his Honour rightly considered them.
16 The circumstances of this particular offence do not easily fit with either that of the case of R v Salt (CCA 26 August 1994) or, indeed, that of the case of R vReid [2001] NSWCCA 364 and each are distinguishable. In the end, I am not persuaded by the careful submissions of Mr Hamill on the issue of leniency in relation to antecedents and, perhaps more significantly, on analysis, that there has been a real deprivation of properly found special circumstances in a case where the cumulation of sentences for distinct offences as decided by the learned sentencing judge, cannot itself be the subject of a finding of error.
17 Accordingly, I propose that leave to appeal be granted but that the appeal be dismissed.
18 LEVINE J: The orders will be as I have proposed.
19 There is one other matter. Insofar as this Court can make a recommendation it does so thus: it recommends that the prisoner have the benefit of a transfer under the Prisoners (Interstate Transfer) Act 1982 if, according to the criteria and usual considerations, those who administer it consider it appropriate.
20 CARRUTHERS AJ: I agree.
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