Shannon v The The Queen - [2022] NSWCCA 41

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Shannon v R [2022] NSWCCA 41
Hearing dates: 14 February 2022
Date of orders: 4 March 2022
Decision date: 04 March 2022
Before: Macfarlan JA at [1]
Bellew J at [2]
Dhanji J at [24]
Decision: (1) The time for filing a notice of appeal for leave to appeal against sentence is extended to 14 February 2022.
(2) Leave to appeal is granted.
(3) The appeal is dismissed.
(4) The Registrar is to forward a copy of this judgment to the applicant by pre-paid post.
Catchwords:
CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant was arrested at a time when there were outstanding charges pending against him in the Local Court – Where the applicant was sentenced to a term of imprisonment in respect of those pending charges and served that sentence whilst awaiting sentence on other matters – Whether the failure of the sentencing judge to fully backdate the sentences amounted to a miscarriage of justice – Where applicant’s solicitor acquiesced to the approach taken by the sentencing judge – Ground of appeal not established – Leave to appeal granted – Appeal dismissed
CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant sought to argue that his conditions of custody had been rendered more harsh as a consequence of the Covid pandemic and justified a reduction in sentence – Where applicant had been sentenced before the onset of the pandemic – Court unable to intervene where, after the time of sentence, an offender’s conditions of custody are rendered more onerous because of the response of the prison authorities to the pandemic – Ground of appeal not established – Leave to appeal granted – Appeal dismissed

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
Cabezuela v R [2020] NSWCCA 107
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Connell v R [2019] NSWCCA 70
Director of Public Prosecutions (Cth) v Habkouk [2022] NSWSC 98
Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186
Greenyer v R [2016] NSWCCA 272
R v Shannon [2019] NSWDC 942
Rakielbakhour v DPP [2020] NSWSC 323
Toller v R [2021] NSWCCA 204
Zreika v R [2012] 223 A Crim R 460; [2012] NSWCCA 44

Category: Principal judgment
Parties: Kurt Patric Shannon – Applicant
Regina – Respondent
Representation:
Counsel:
Applicant self-represented
E Wilkins – Respondent
Solicitors:
Applicant self-represented
C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2018/00201464 & 2018/00265641
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 942

Date of Decision:

18 October 2019

Before:

Judge Bright

File Number(s):

2018/00201464/2018/00265641

Judgment

MACFARLAN JA: I agree with Bellew J.
BELLEW J: Kurt Patric Shannon (the applicant) was arrested on 29 June 2018 and charged with the following offences (the present offences): [1]
1. The table is taken from the…

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 Shannon v The The Queen

Details

AGLC: Shannon v The The Queen [2022] NSWCCA 41
Case: [2022] NSWCCA 41
Decision Date: 04 March 2022

CaseChat Overview and Summary

In this case, the applicant, Shannon, appealed against his sentence which was imposed by the sentencing judge. The applicant had outstanding charges pending against him in the Local Court, and he was arrested and subsequently sentenced to a term of imprisonment in respect of those charges. While awaiting sentence on other matters, the applicant served the sentence for the pending charges. The applicant argued that the failure of the sentencing judge to fully backdate the sentences amounted to a miscarriage of justice. The applicant also sought to argue that his conditions of custody had been rendered more harsh as a consequence of the Covid pandemic and justified a reduction in sentence.

The legal issues that the court had to determine were whether the failure of the sentencing judge to fully backdate the sentences amounted to a miscarriage of justice and whether the applicant's conditions of custody had been rendered more harsh as a consequence of the Covid pandemic and justified a reduction in sentence. The court found that the applicant's solicitor acquiesced to the approach taken by the sentencing judge and that the applicant's ground of appeal was not established. The court also found that it was unable to intervene where, after the time of sentence, an offender's conditions of custody were rendered more onerous because of the response of the prison authorities to the pandemic.

The court held that the applicant's ground of appeal was not established and dismissed the appeal. The court granted leave to appeal but dismissed the appeal as the applicant's solicitor had acquiesced to the approach taken by the sentencing judge, and the court was unable to intervene where, after the time of sentence, an offender's conditions of custody were rendered more onerous because of the response of the prison authorities to the pandemic. The court found that the applicant's conditions of custody had not been rendered more harsh as a consequence of the Covid pandemic and justified a reduction in sentence.

Orders