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Court of Criminal Appeal 4 March 2022

Shannon v R

[2022] NSWCCA 41

DrugsFirearms & weapons
CRIMINAL LAW OFFENCES SENTENCE APPEAL GROUND OF APPEAL NOT ESTABLISHED LEAVE TO APPEAL GRANTED

Citation: Shannon v R [2022] NSWCCA 41
Court: Court of Criminal Appeal, NSW
Date: 4 March 2022
Judge(s): Macfarlan JA, Bellew J, Dhanji J

Background

The applicant was arrested in June 2018 and charged with serious drug supply and firearms offences. At the time of his arrest, he also faced a number of separate charges pending in the Local Court, including drug supply and driving whilst disqualified. He was sentenced on those additional matters in April 2019 to an aggregate 21-month term of imprisonment dating from June 2018.

When the applicant appeared in the District Court for sentence on the primary offences in October 2019, he had served 21 days in custody solely referable to those charges. The sentencing judge imposed an aggregate term of 7 years and 6 months with a non-parole period of 4 years and 6 months, commencing 28 March 2019. Rather than fully backdating the sentence to account for the entire period already served on the additional matters, the judge applied only a six-month period of partial concurrency to reflect totality.

The applicant, self-represented before the Court of Criminal Appeal, sought leave to appeal his sentence on two grounds: that the failure to fully backdate the sentence amounted to a miscarriage of justice, and that harsher conditions of custody arising from the COVID-19 pandemic warranted a reduction in sentence.

  • Whether the sentencing judge's failure to fully backdate the commencement of the sentence to recognise the time already served on the additional offences constituted a miscarriage of justice.
  • Whether conditions of custody rendered more onerous by the COVID-19 pandemic, after the date of sentencing, could justify appellate intervention to reduce the sentence.

Decision

On the first ground, the Court found that the applicant's solicitor at the sentencing hearing had expressly declined to be heard against the approach the judge signalled she intended to take. The sentencing judge identified her reasoning clearly during the proceedings, and the solicitor's acquiescence meant the applicant could not now complain that the resulting approach was erroneous. The ground of appeal was not established.

On the second ground, the Court held that it lacked the capacity to intervene where conditions of custody became more onerous after the date of sentence as a result of decisions by prison authorities responding to the pandemic. The applicant was sentenced in October 2019, some months before the onset of the COVID-19 pandemic in early 2020. Because the harsher conditions arose after sentencing and not as a result of any error at the time of sentence, there was no proper basis for appellate intervention.

Dhanji J added observations acknowledging the real difficulties the pandemic has created for prisoners and those managing custodial environments, including the compounding effect of community transmission on prison staffing. His Honour nonetheless confirmed that the constraints on appellate intervention remained applicable in the circumstances.

Orders Made

  • The time for filing a notice of appeal for leave to appeal against sentence was extended to 14 February 2022.
  • Leave to appeal was granted.
  • The appeal was dismissed.
  • The Registrar was directed to forward a copy of the judgment to the applicant by pre-paid post.

Key Takeaways

  • Where a defendant's solicitor at the sentencing hearing expressly acquiesces to the sentencing approach taken by the judge, that acquiescence will weigh heavily against a later ground of appeal asserting that the same approach was erroneous.
  • The Court of Criminal Appeal confirmed that it cannot intervene on sentence appeal where conditions of custody become more onerous after the date of sentencing, including as a result of pandemic-related measures imposed by prison authorities.
  • A sentencing judge addressing totality between consecutive sentences is not required to fully backdate a later sentence to account for all time served under an earlier one, particularly where the earlier sentence covered different categories of offending.
  • In dismissing the COVID ground, the Court drew a clear distinction between hardship that existed at the time of sentence (which may be a mitigating factor) and hardship that arises afterwards through institutional responses beyond the sentencing court's knowledge or control.
  • Dhanji J's observations acknowledge that many prisoners are serving sentences under conditions significantly more onerous than anticipated at sentencing, but confirm this does not of itself enliven the appellate jurisdiction.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)

Cases:
- Cabezuela v R [2020] NSWCCA 107
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Connell v R [2019] NSWCCA 70
- Director of Public Prosecutions (Cth) v Habkouk [2022] NSWSC 98
- Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186
- Greenyer v R [2016] NSWCCA 272
- R v Shannon [2019] NSWDC 942
- Rakielbakhour v DPP [2020] NSWSC 323
- Toller v R [2021] NSWCCA 204
- Zreika v R [2012] 223 A Crim R 460; [2012] NSWCCA 44