Citation: Regina v Shannon [2003] NSWCCA 106
Court: New South Wales Court of Criminal Appeal
Date: 17 April 2003
Judge(s): Hidden J, Bell J, Buddin J
Background
The respondent pleaded guilty in the District Court to two counts of dangerous driving occasioning grievous bodily harm while under the influence of a drug, contrary to s 52A(3)(a) of the Crimes Act 1900, which carries a maximum of seven years imprisonment. Each offence involved her vehicle crossing onto the wrong side of the road and colliding with an oncoming car, causing serious injuries to both drivers. Blood samples taken after each incident revealed significant levels of morphine and diazepam, both of which had been prescribed to her. Cannabis was also detected on each occasion, though this was not pressed by the Crown as a significant contributing factor.
The sentencing judge, Christie DCJ, imposed a fixed term of nine months imprisonment on the first count and eighteen months imprisonment with a nine-month non-parole period on the second count, both terms running concurrently from 12 December 2002. The Form 1 matters, including driving under the influence and driving while suspended, were taken into account on the second count.
The Crown appealed, arguing the overall sentence was manifestly inadequate. The Court of Criminal Appeal dismissed the appeal on the day of hearing and subsequently published its reasons.
Legal Issues
- Whether the overall sentence of eighteen months with a nine-month non-parole period was manifestly inadequate for two counts of dangerous driving occasioning grievous bodily harm
- Whether the sentence on the first count should have been cumulative rather than concurrent with the second
- Whether the respondent's severe physical and mental health conditions, including major depressive disorder and dependence on prescribed medication, constituted sufficiently exceptional circumstances to justify the sentencing outcome
- Whether the principles governing general deterrence are modified where an offender suffers from a mental illness
Decision
The Court acknowledged that the bare facts of the offending were alarming. The respondent had caused serious injuries in two separate collisions while impaired by prescription drugs, and had committed the second offence while her licence was suspended. The sentencing judge clearly recognised the gravity of the conduct and described a custodial sentence as inevitable.
However, the Court found that the respondent's subjective circumstances were genuinely exceptional. She was a woman of good character in her late forties, suffering from multiple serious physical conditions including chronic back pain, restless leg syndrome, and pain syndrome, as well as a diagnosed major depressive disorder that had led to a psychiatric admission for suicidal ideation. The drugs detected in her system were prescribed medications, and there was evidence of genuine remorse and developing insight into her reliance on medication.
On the question of concurrency versus accumulation, the Court reasoned that if the sentencing judge had erred by not separately calculating the sentence for the first count before considering the overall sentence, any such error may in fact have operated against the respondent rather than in her favour. Standing alone, the first count might not have attracted a full custodial term given the exceptional circumstances.
The Court also noted that the principles identified in Regina v Engert, which recognise that general deterrence carries reduced weight where an offender suffers from a mental illness, may have been applicable. While this point was not fully argued before the sentencing judge or on appeal, the Court observed that particular deterrence was addressed by evidence of the respondent's remorse and her developing awareness of her problems. The Court was not satisfied that Christie DCJ's sentence revealed the kind of inadequacy that warrants intervention on a Crown appeal, and dismissed the appeal accordingly.
Orders Made
- Crown appeal dismissed.
Key Takeaways
- In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that intervention on a Crown appeal for inadequacy of sentence requires the sentencing decision to reveal a significant error, not merely a sentence the appellate court might have assessed differently.
- Exceptional personal circumstances, including serious physical illness, diagnosed major depressive disorder, and reliance on prescribed medication, can be taken into account in mitigation even where the objective gravity of the offending is high.
- Where an offender drives under the influence of lawfully prescribed drugs, the fact that the drugs were medically prescribed forms part of the subjective context, although it does not remove culpability for the dangerous conduct.
- Under the principles identified in Regina v Engert, the weight given to general deterrence may be reduced where an offender suffers from a mental illness, a consideration the Court noted was potentially available on these facts.
- No error was established in the sentencing judge's approach to concurrency, with the Court finding that any error in the global assessment of the sentence may have operated to the respondent's detriment rather than her benefit.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A(3)(a)
Cases:
- Attorney-General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518
- Pearce v The Queen (1998) 194 CLR 610
- Regina v Engert (1995) 84 A Crim R 67
- Regina v Harris (2001) 125 A Crim R 27
- Regina v Whyte [2002] NSWCCA 343