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Court of Criminal Appeal 29 October 2002

Regina v Daniel Shanks

[2002] NSWCCA 438

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL PRACTICE & PROCEDURE APPEAL AGAINST SEVERITY OF SENTENCE ARMED ROBBERY IN COMPANY ON PAROLE ESCAPE WHILST AT COURT

Citation: Regina v Daniel Shanks [2002] NSWCCA 438
Court: New South Wales Court of Criminal Appeal
Date: 29 October 2002
Judge(s): Kirby J; Dunford J

Background

The applicant pleaded guilty in the District Court to three charges: armed robbery whilst in company, break and enter in circumstances of special aggravation, and stealing a motor vehicle. The offences were committed in 1999, just months after the applicant had been released on parole following earlier convictions for five counts of armed robbery.

The armed robbery involved a planned attack on a bank branch. The applicant and a co-offender forced entry while the roller shutter was being opened, produced a semi-automatic pistol, and stole approximately $57,000 from cash drawers. The break and enter involved three offenders who entered a jewellery store at a shopping centre overnight, using a stolen truck as a battering ram against the jewellery store's metal shutter. A separate charge arose from the applicant escaping lawful custody while attending court, though he was quickly apprehended and no one was injured.

Two District Court judges sentenced the applicant: Neild DCJ for the robbery, break and enter, and motor vehicle theft (resulting in a total effective sentence of 12 years with an 8-year non-parole period), and Black DCJ for the escape (a fixed term of 12 months, cumulative). The applicant sought leave to appeal in the Court of Criminal Appeal against the severity of both sets of sentences.

  • Whether the sentences imposed by Neild DCJ for armed robbery, break and enter in circumstances of special aggravation, and stealing a motor vehicle were excessive having regard to comparable cases and sentencing statistics
  • Whether the sentence imposed by Black DCJ for escaping lawful custody was excessive
  • Whether the sentencing judges properly applied the totality principle when fixing cumulative and concurrent terms

Decision

Kirby J (with Dunford J agreeing) dismissed the appeal on all grounds. On the armed robbery sentence of 8 years, the court found that the features of the offence, including planning, the use of a loaded firearm, injury to a bank employee, a substantial sum stolen and never recovered, and the commission of the offence while on parole for the same type of offending, placed it firmly in the most serious category. The sentencing statistics indicating only 11 per cent of offenders received a comparable term did not displace this conclusion, given those aggravating circumstances.

On the break and enter, Kirby J noted the severity of the offending: a deliberate overnight entry using a stolen vehicle as a battering ram against a commercial premises, significant property damage, and the theft of a large quantity of jewellery. The court found no error in the 8-year sentence, which took into account a further offence on a Form 1. The sentence for stealing the motor vehicle (3 years and 2 months) was made wholly concurrent, reflecting its connection to the break and enter.

On the escape, Black DCJ had already characterised the offence as at the lower end of the scale, and imposed a fixed term of 12 months. Kirby J cited authority from the Court of Criminal Appeal suggesting that "unremarkable" escapes ordinarily attract a sentence approximating two years, meaning a 12-month term was well within the permissible range. The applicant's argument that this sentencing guidance applied only to minimum-security escapes was rejected.

Orders Made

  • Leave to appeal granted in respect of both sentences
  • Appeals against both sentences dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing statistics from the Judicial Commission, while useful, are not determinative where the particular features of an offence place it in a more serious category than the statistical norm.
  • Committing serious offences whilst on parole for substantially similar offending is a significant aggravating factor that can justify sentences well above the statistical median.
  • The totality principle requires a sentencing court to adjust cumulative sentences to reflect overall criminality, but does not mandate leniency where the individual offences are each independently serious.
  • A sentence of 12 months for an escape from custody was held to fall within the sentencing discretion available, even though prior Court of Criminal Appeal authority suggested ordinary escapes might attract approximately two years.
  • The guidance in R v Thomson that sentences of six to nine months for escape are below the expected pattern was confirmed as remaining relevant after the introduction of the Sentencing Act 1989, and of general application rather than being limited to minimum-security escapes.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2), 112(3), 154AA, 310
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 57(2) and (3)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Burke [2002] NSWCCA 353
- R v Thomson (CCA, unreported, 21 May 1986)
- Regina v Simonds (CCA, unreported, 6 May 1991)