Court of Criminal Appeal Supreme Court New South Wales 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 1. MACFARLAN JA: I agree with Bellew J. 2. BELLEW J: Kurt Patric Shannon (the applicant) was arrested on 29 June 2018 and charged with the following offences (the present offences): [1] COUNT FORM 1 CHARGE DATE OF OFFENCE SECTION MAXIMUM PENALTY/ SNPP INDICATIVE SENTENCE Count 1 Possess more than 3 unregistered firearms, including prohibited firearm 23 June 2018 s.51D(2) Firearms Act 1996 20 years imprisonment Taking into account the Form 1, 4 years and 6 months with a non-parole period of 2 years and 8 months SNPP: 10 years Form 1 matters attached to Count 1: H134107402 Squ. 3 Possess ammunition with licence, permit or authority 23 June 2018 s.65(3) Firearms Act 1996 50 penalty units H134107402 Squ. 4 Supply prohibited drug (3.23g 3,4 methylenedioxy-methylamphetamine) 23 June 2018 s.25(1) Drug Misuse and Trafficking Act 1985 15 years imprisonment H134107402 Squ. 10 & 11 Acquire firearm part without authority (2 x buttstock) Between 23 June 2017 and 23 June 2018 s.50AA(1) Firearms Act 1996 5 years imprisonment Count 2 Supply prohibited drug (78.44 grams methylampheta-mine) 29 June 2018 s.25(1) Drug Misuse and Trafficking Act 1985 15 years imprisonment Taking into account the second Form 1, 3 years and 1 month Form 1 matters attached to Count 2 H131828101 Squ 3 Deal with proceeds of crime ($13,440) 29 June 2018 s.193C(2) Crimes Act 1900 3 years imprisonment H131828101 Squ 4, 10 & 11 Possess prohibited weapon without permit (knuckle dusters, slingshot and extendable baton respectively) 29 June 2018 s.7(1) Weapons Prohibition Act 1998 14 years imprisonment H131828101 Squ 5 Possess ammunition with licence, permit or authority 29 June 2018 s.65(3) Firearms Act 1996 50 penalty units H131828101 Squ 6 Acquire firearm part without authority (barrel and hammer) 29 June 2017 and 29 June 2018 s.50AA(1) Firearms Act 1996 5 years imprisonment Count 3 Supply prohibited drug (166.25g methylamphet-amine) Between 3 April 2018 and 29 June 2018 s.25(1) Drug Misuse and Trafficking Act 1985 15 years imprisonment 4 years 1. At the time of his arrest for the present offences, the applicant faced a number of other matters (the additional offences) which were pending before the Local Court, namely: 1. supplying a prohibited drug on 31 December 2017; [2] 2. driving whilst disqualified on 21 January 2018; [3] 3. driving whilst disqualified on 12 April 2018; and [4] 4. driving whilst disqualified on 16 May 2018. [5] 1. On 30 April 2019, the applicant was sentenced in respect of the additional offences to an aggregate term of imprisonment of 21 months to date from 28 June 2018 and to expire on 27 March 2020. A non-parole period was imposed, which expired on 27 September 2019. [6] 2. The applicant appeared before the District Court for sentence in respect of the present offences on 17 October 2019, and was sentenced on 18 October 2019. At that time, he had spent a period of 21 days in custody which was solely referable to those offences. The sentencing judge imposed an aggregate term of imprisonment of 7 years and 6 months, with a non-parole period of 4 years and 6 months, to date from 28 March 2019. 3. The applicant, who was self-represented before this Court, now seeks leave to appeal against that sentence on the grounds considered below. The applicant filed a notice of intention to appeal against sentence on 5 November 2019 which, following an extension of time, expired on 5 June 2020. A notice of appeal, grounds of appeal and submissions were filed on 13 August 2021. In these circumstances, the applicant requires an extension of time in which to file the notice of appeal. In circumstances where the applicant has appeared unrepresented, that extension should be granted. 4. The applicant sought to rely on an affidavit of 30 September 2021. It was explained to the applicant that the Court would consider that affidavit in the event that it came to the question of re-sentence. [7] THE FACTS OF THE PRESENT OFFENDING 1. The sentencing judge found the facts of the present offences to be as follows. [8] 2. One 23 June 2018, police attended Strickland Forest Road, Somersby and found a white cylinder approximately 150cm long and 15cm in diameter, inside which they located: 1. an unregistered shortened 12 gauge Squires Bingham Bentley repeating pump action shotgun, with the butt stop and a portion of the barrel removed, which was in working order; 2. a .450 calibre British Bulldog five chamber revolver, which was not in working order due to a broken flat spring; 3. an unregistered .32 Winchester Centre Fire Calibre Winchester model 92 repeating lever action rifle which was in working order; 4. an unregistered shortened, Amadeo Rossi double barrel (side by side) shotgun, which was in working order; 5. a .22 calibre single shot pen pistol which was in working order (the manufacturer of which could not be identified); 6. two shortened wooden firearm butt stops; 7. a quantity of cartridges and ammunition; and 8. a clear resealable bag containing 3.23g of a prohibited drug, namely 3,4 methylenedioxymethamphetamine. 1. The contents of the cylinder were linked to the applicant following forensic analysis. On 29 June 2018, police executed a search warrant at the applicant's premises and located (inter alia) a quantity of methylamphetamine, a total of $13,440.00 in Australian currency and a quantity of ammunition. Police also found a number of other items in the premises which were consistent with drug use and/or drug supply, including a glass pipe, scales, butane burners and clear resealable bags. 2. Subsequent analysis of a phone seized during the execution of the search warrant established that the applicant had engaged in the supply of 118.5g of methylamphetamine between 26 May 2018 and 29 June 2018. The individual quantities of methylamphetamine supplied in that period ranged from 1.7g to 7g. Analysis of a second phone established that the applicant had engaged in the supply of a further 47.75g of methylamphetamine between 3 April 2018 and 31 May 2018. The individual quantities of methylamphetamine supplied in that period ranged from .875g to 7g. THE SENTENCE PROCEEDINGS 1. In the course of the sentence proceedings, and in the context of considering the fact that the applicant had served a sentence for the additional offences whilst refused bail for the present offences, the following exchange took place between the sentencing judge, the Crown and the solicitor then appearing for the applicant: [9] HER HONOUR: I think the position is this, so those offences for which he is now serving a sentence included two deal with proceeds of crime, which I could infer was drug related, I think having regard to the evidence of what happened in early 2018 and he has the possession of the drug offences as well. So those matters and I'm speaking broadly are of the same type of criminality, so he is arrested for those, I think they're December offences. These offences start in the first half – that is 2017, these offences start 2018. So I think ordinarily if a Court was looking at totality there would be some recognition that the drug matters are the same type of offending and for that reason and I will hear from you further, but for that reason I certainly wouldn't backdate it as far as it has been suggested. I think Mr O'Sullivan said to backdate it halfway through the non-parole period he is currently serving. My view is, and I will hear from both of you, but I'm just indicating that my view is I would backdate it six months, that would ensure that he still serves part of the sequences for other offences because there is the police pursuit and there's the drive whilst disqualified. So that would mean he would still serve a proportion of that relative to that other criminality, but the six months would be a recognition that some of that offending was also drug related, and in that way, and I will explain this in my judgment but in that way I would encapsulate the principle of totality between the two separate sentences. CROWN: I am just trying to check what the indicative sentence in relation to the supply and the deal with proceeds was. SOLICITOR: Just while that's happening your Honour, I don't wish to be heard against that suggestion. CROWN: I wouldn't wish to be heard further your Honour. HER HONOUR: That's one matter resolved (emphasis added in each case). THE GROUNDS OF APPEAL Ground 1 – The court failing to backdate the entirety of my time served while awaiting sentence has resulted in a manifest injustice The reasons of the sentencing judge 1. Against the background of the exchange set out above, the sentencing judge concluded as follows: [10] In relation to the question of totality with the sentence served whilst the offender has been on remand, I propose some partial concurrency (six months) in circumstances where that sentence included drug related offending that had occurred at a time proximate to the current offences. SUBMISSIONS OF THE PARTIES Submissions of the applicant 1. The applicant submitted that the extent to which the sentencing judge had backdated the commencement of his sentence for the present offences was unfair, and that her Honour had erred in not backdating the sentence to the date on which he was first taken into custody, i.e. 29 June 2018. Submissions of the Crown 1. The Crown submitted that it was evident from what had transpired at the sentence proceedings, as well as from the reasons of the sentencing judge, that her Honour was cognisant of the need to give careful consideration to the principle of totality. It was submitted that her Honour had had regard to that principle, and had carefully structured a sentence which took into account the whole of the applicant's criminality, fulfilled the purposes of sentencing and reflected proper regard having been paid to the principle of totality. CONSIDERATION 1. There is no general rule that governs whether sentences should be imposed concurrently or cumulatively. Issues of that nature are determined according to (inter alia) the principle of totality, [11] and by the exercise of a broad discretion. [12] it is evident that her Honour gave close consideration to all relevant principles, including the principle of totality, and there is nothing in her Honour's reasons to suggest that there was a miscarriage of the sentencing discretion. 2. Moreover, it is clear that when her Honour indicated the extent to which she was proposing to backdate the sentence for the present offences the applicant's solicitor did not wish to be heard against such an approach. That amounted, in effect, to a concession by the applicant's solicitor that such approach was within the bounds of the proper exercise of her Honour's sentencing discretion. It is well settled that this Court will have a reluctance to entertain arguments which seek to resile from concessions made at first instance, and that there is a need in such a case to establish that there has been a miscarriage of justice before the Court will intervene. [13] In circumstances where her Honour was clearly aware of the relevant principles, and where her approach to the issue of backdating the sentence was sound, this is not a case where there could be any suggestion that a miscarriage of justice has occurred. 3. For these reasons this ground of appeal is not made out. Ground 2 – Due to the COVID pandemic my time in gaol has been unusually harsh Submissions of the applicant 1. In support of this ground, the applicant generally relied on what he submitted were the unduly harsh conditions of his custody, brought about by the current pandemic. Submissions of the Crown 1. The Crown pointed out that the applicant was sentenced on 18 October 2019, well before the outbreak of the pandemic. The essence of the Crown's submissions was that in those circumstances there was no basis for the intervention of this Court. Consideration 1. In Cabezuela v R [14] Walton J (with whom Hoeben CJ at CL and Harrison J agreed) concluded that there was no basis for the admission of new evidence as to the implications of the pandemic on an offender's conditions of custody where that offender had been sentenced before its onset. Subsequently, in Toller v R [15] Beech-Jones J (as his Honour then was, and with whom Macfarlan JA and Davies J agreed) said the following: [25] As present circumstances clearly demonstrate, the impact of the COVID-19 pandemic on prisoners is far from over. It can be accepted that sentencing judges are entitled to consider those impacts and the potential imposition of restrictions in the future. However, consistent with long established principle, Cabezuela confirms that it is not a basis for intervention by this Court with a sentence where, after the time of sentence, the offender's conditions of custody have been rendered more onerous because of the imposition of restrictions by the prison authorities in response to the threat posed by a pandemic. 1. The applicant was sentenced on 18 October 2019. That was some time before the onset of the pandemic in the early part of 2020. In these circumstances, the applicant has failed to establish any basis for intervention by this Court, and this ground of appeal is not made out. ORDERS 1. I propose the following orders: 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. 1. DHANJI J: I agree with Bellew J and would add only the following. 2. The current pandemic has had a significant impact on many people, including prisoners. It is obviously difficult to manage the spread of disease in a prison environment with a consequent impact on inmates: see Rakielbakhour v DPP [2020] NSWSC 323; Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186. It appears that managing the custodial environment has become even more difficult in recent times as a result of the spread of the disease in the community and its consequent impact on staffing levels within the Department of Corrective Services: see Director of Public Prosecutions (Cth) v Habkouk [2022] NSWSC 98 at [34]-[35]. There is no doubt that, as a result, the applicant and many others are serving sentences in conditions more onerous, and often significantly more onerous than had been anticipated at the time of sentence. However, for the reasons given by Bellew J, there are constraints on the circumstances in which this Court can properly intervene in an appeal of this nature. ********** Endnotes 1. The table is taken from the Crown's written submissions filed in this Court. 2. AB 131. 3. AB 141. 4. AB 128. 5. AB 136. 6. Crown written submissions on sentence at [52]; AB 126. 7. T2.10-T2.16. 8. Commencing at AB 20. 9. AB 176.39 – AB 177.18. 10. AB 30. 11. Connell v R [2019] NSWCCA 70 at [43] per Bellew J (Macfarlan JA and Fullerton J agreeing) citing Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]. 12. Greenyer v R [2016] NSWCCA 272 at [40] per Button J (Meagher JA and Rothman J agreeing). 13. Zreika v R [2012] 223 A Crim R 460; [2012] NSWCCA 44 per Johnson J at [81]. 14. [2020] NSWCCA 107 at [130]. 15. [2021] NSWCCA 204 at [25]. 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