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District Court 18 October 2019

R v Shannon

[2019] NSWDC 942

DrugsFirearms & weapons
OFFENDERS — PARITY

Citation: R v Shannon [2019] NSWDC 942
Court: District Court of New South Wales
Date: 18 October 2019
Judge: Bright DCJ

Background

The offender, a man in his early twenties, faced sentencing on three principal counts involving the possession of multiple unregistered firearms (including prohibited firearms) and the supply of methylamphetamine on two separate occasions. The charges arose from two distinct incidents in June 2018: the discovery of a concealed cylinder in bushland at Somersby containing five firearms, ammunition, and a small quantity of drugs linked forensically to the offender, and the execution of a search warrant at the offender's North Gosford unit.

During the search of the unit, police located 78.44 grams of methylamphetamine, $13,440 in cash, ammunition, knuckle dusters, a slingshot, and an extendable baton. A third count arose from evidence extracted from a mobile phone seized during that warrant, establishing a further supply of 166.25 grams of methylamphetamine. A substantial number of associated offences, including possessing prohibited weapons, dealing with proceeds of crime, and acquiring firearm parts without authority, were taken into account on two Form 1 schedules.

The offender had been in custody since 29 June 2018, initially serving a non-parole period for unrelated offences and thereafter on remand for the current charges. He pleaded guilty to Count 1 at arraignment and to Counts 2 and 3 shortly before the sentence hearing.

  • What discount for guilty plea applied under the early appropriate guilty plea (EAGP) scheme, given the timing of each plea?
  • How should the separate and distinct criminality across the three counts be treated for the purposes of accumulation, concurrency, and totality?
  • Were special circumstances established, warranting a departure from the statutory ratio between the non-parole period and the balance of the term?
  • What weight should be given to the Form 1 offences when assessing the overall sentence?
  • How should the sentence interact with the period already served on remand, including time spent on an unrelated sentence?

Decision

Bright DCJ applied a 10% discount across all counts, reflecting guilty pleas entered after the EAGP legislation commenced but not at the earliest available opportunity. The judge convicted the offender on each count and imposed an aggregate sentence under section 53A(1) of the Crimes (Sentencing Procedure) Act 1999.

Had separate sentences been imposed, Count 1 (firearms) would have attracted 4 years and 6 months with a non-parole period of 2 years and 8 months, Count 2 (78.44 grams methylamphetamine) would have attracted 3 years and 1 month, and Count 3 (166.25 grams methylamphetamine) would have attracted 4 years. Bright DCJ ordered partial accumulation on Count 1 given that the firearms offending was serious criminality of a separate and distinct character from the drug supply offences.

On the question of totality, the judge considered both the relationship between the three principal counts and the interaction between the current sentence and the period served on remand for unrelated matters. The aggregate sentence was backdated to 28 March 2019 to account fairly for time spent in custody.

The judge accepted submissions that special circumstances existed, on two grounds: the offender's need for drug treatment upon release, and the partial cumulation of the present sentence upon time already served. The statutory ratio was varied accordingly, producing a longer parole period. Rehabilitation prospects were assessed as guarded, given longstanding and untreated methamphetamine dependence, though the offender's family support and expressed intention to remain drug-free were noted as positive factors. The $13,440 in cash was ordered forfeited to the State under the Confiscation of Proceeds of Crime Act 1989.

Orders Made

  • The offender was convicted on each of Counts 1, 2, and 3.
  • An aggregate sentence of 7 years and 6 months imprisonment was imposed, commencing 28 March 2019 and expiring 27 September 2026.
  • A non-parole period of 4 years and 6 months was set, commencing 28 March 2019 and expiring 27 September 2023 (first eligible parole date: 27 September 2023).
  • Special circumstances were found and the statutory ratio between the non-parole period and the parole period was varied under section 44(2B) of the Crimes (Sentencing Procedure) Act 1999.
  • Cash of $13,440 was forfeited to the State pursuant to section 18(1) of the Confiscation of Proceeds of Crime Act 1989.

Key Takeaways

  • A 10% guilty plea discount applied where pleas were entered after the commencement of the EAGP legislation but not at the earliest opportunity, illustrating that the timing of the plea directly determines the discount available under that regime.
  • Partial accumulation of sentences is appropriate where distinct counts reflect criminality that is separate in nature, even where the offending occurred in close temporal proximity.
  • Special circumstances under section 44(2B) of the Crimes (Sentencing Procedure) Act 1999 can be established on multiple independent grounds, including the need for post-release drug treatment and the fact that a sentence runs partially cumulatively upon time already served on remand.
  • Form 1 offences, though not separately punished, were expressly taken into account in calibrating the overall sentence, consistent with the principles in Attorney General's Application No 1 of 2002.
  • Where a sentence is imposed partly cumulatively on a remand period that included time served for unrelated offences, backdating the commencement date is one mechanism the District Court may use to achieve a just overall outcome under the totality principle.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 44(2B), 53A, 54B(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 50AA(1), 51D(2)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes Act 1900 (NSW), s 193C(2)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Mack v R [2009] NSWCCA 216
- Parente v R [2017] NSWCCA 284
- R v West [2014] NSWCCA 250