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Court of Criminal Appeal 25 March 2002

REGINA V SHANNON

[2002] NSWCCA 115

Assault & violenceFirearms & weapons
SENTENCE PARTIALLY CUMULATIVE SENTENCES

Citation: [2002] NSWCCA 115
Court: New South Wales Court of Criminal Appeal
Date: 25 March 2002
Judge(s): Levine J; Carruthers AJ

Background

The applicant, a member of the Gypsy Jokers motorcycle club, pleaded guilty to two offences arising from an incident on 30 January 2000. While travelling as a rear-seat passenger on the Silver City Highway in New South Wales, he fired a Smith and Wesson revolver at a motorcyclist wearing the colours of a rival club, the Banditos. One shot struck the victim in the chest and a second punctured the rear tyre of the motorcycle. The victim survived his injuries and subsequently died in an unrelated incident.

The applicant pleaded guilty to using an offensive weapon with intent to commit an indictable offence under s 33B of the Crimes Act 1900 (maximum 12 years), and to possessing an unlicensed pistol under s 7 of the Firearms Act 1996 (maximum 10 years). He was sentenced in the District Court by Coleman DCJ QC.

The sentencing judge imposed an 18-month fixed term for the firearms offence commencing 26 November 2000, and a total sentence of six years for the s 33B offence commencing 26 May 2001, with a non-parole period of four years. The sentences were partially cumulative, with the principal sentence beginning six months before the firearms sentence expired.

  • Whether the sentencing judge gave proper weight to the applicant's antecedents and subjective circumstances, and whether those factors warranted leniency
  • Whether the partial cumulation of the two sentences effectively deprived the applicant of the benefit of the special circumstances finding made in his favour

Decision

On the question of antecedents, the Court accepted that the applicant's prior offending fell into two distinct periods: offences committed when he was young and in unstable domestic circumstances, and later traffic-related offences in more settled circumstances. Importantly, neither period involved prior violence. The sentencing judge had acknowledged these subjective matters but concluded they could not outweigh the objective seriousness of the offending. The Court of Criminal Appeal found no error in that approach.

On the partial cumulation issue, the Court noted that the firearms offence was properly treated as a separate and distinct offence from the weapons offence. No evidence had been led to explain why the revolver was being carried, which supported treating the two offences as independent matters warranting cumulative sentences. The Court found the applicant in fact received a discount for special circumstances of approximately four and a half months within the overall sentence structure.

The Court distinguished the present case from both R v Salt and R v Reid, finding neither authority directly applicable on the facts. Leave to appeal was granted, but the appeal was dismissed. The Court also recommended that the prisoner's eligibility for an interstate transfer be considered under the Prisoners (Interstate Transfer) Act 1982.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Recommendation made that the prisoner be considered for transfer under the Prisoners (Interstate Transfer) Act 1982, subject to the usual criteria

Key Takeaways

  • Where two offences arise from related circumstances but are sufficiently distinct in character, a sentencing court may properly impose partially cumulative sentences without that structure itself constituting an error.
  • A finding of special circumstances does not automatically translate into a proportionate reduction of the non-parole period where cumulative sentences are imposed for genuinely separate offences. The benefit of the special circumstances finding may be reflected within the overall structure rather than as a discrete reduction.
  • The Court of Criminal Appeal confirmed that powerful subjective circumstances, including a non-violent criminal history and evidence of personal improvement, do not automatically compel leniency where the objective seriousness of the offending is substantial.
  • No error was established in the sentencing judge's conclusion that an unprovoked roadside shooting involving a firearm, regardless of the absence of premeditation, represented a high level of objective criminality under s 33B of the Crimes Act 1900.
  • In dismissing the appeal, the Court demonstrated a reluctance to interfere with a sentence where the overall structure, though complex, reflected a principled and considered application of cumulation and special circumstances principles.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 33B
- Firearms Act 1996 (NSW) s 7
- Prisoners (Interstate Transfer) Act 1982

Cases:
- R v Salt (CCA, 26 August 1994)
- R v Reid [2001] NSWCCA 364