Regina v Daniel Shanks [2002] NSWCCA 438

New South Wales Court of Criminal Appeal

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

LOWER COURT JUDICIAL Neild DCJ: Black DCJ OFFICER :

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 Pearce v The Queen (1998) 194 CLR 610 CASES CITED: 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

IN THE COURT OF CRIMINAL APPEAL 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 term of 3 years. · On the second count, that of break and enter in circumstances of special aggravation (taking account of the offence on the Form 1), his Honour again sentenced Mr Shanks to a period of 8 years, specifying a non-parole period of 4 years. · On the third count, stealing a motor vehicle, his Honour sentenced Mr Shanks to 3 years and 2 months, with a non-parole period of 1 year. 7 Having identified the sentence for each offence, as required in Pearce v The Queen (1998) 194 CLR 610, his Honour then referred to the principle of totality. That is, he determined an appropriate sentence, reflecting the overall criminality of Mr Shanks. He recognised that it would be too harsh to make each sentence cumulative. He, therefore, adjusted the total sentence, making the first and second sentences partly cumulative, and partly concurrent. The sentence on the third count (steal a motor vehicle), was made wholly concurrent. The end result was a sentence of 12 years, with a non-parole period of 8 years. 8 Mr Shanks was arrested on 21 October 1999. He was charged with a further offence of break, enter and steal, which is not the subject of this appeal. He was sentenced for that offence on 9 October 2000 to imprisonment for two and a half years with a non-parole period of two years. The non-parole period expired on 18 October 2001. His Honour, Neild DCJ fixed the commencement date for the sentences he imposed (being the sentences under appeal) as 20 October 2001. 9 Mr Shanks has appeared for himself. He has furnished a lengthy and thoughtful commentary upon the sentences imposed. He has identified a number of issues. It is convenient to describe briefly the circumstances giving rise to each charge, and then consider Mr Shanks' complaints.