R v Shannon [2007] VSCA 243

Count 1 - being a prohibited person carrying an unregistered firearm,

Count 2 - being in possession of a drug of dependence, namely, cannabis.

The appellant consented to the court also dealing with two summary charges to which he also pleaded guilty: charges 5 and 6 - possession of a prohibited weapon. He admitted 90 prior convictions from 14 court appearances that related mainly to dishonesty, driving and drug offences. As his counsel noted at the hearing of the plea in mitigation, the appellant spent approximately 17 of his last 20 years in custody. At the hearing of the plea in mitigation there were tendered in evidence on the appellant's behalf the report dated 16 February 2007 of Mr Bernard Healey, a psychologist, and six reports of Dr William Orchard, the appellant's treating psychiatrist, as well as character evidence. On 6 March 2007 the learned sentencing judge sentenced the appellant to 18 months' imprisonment on count 1 and three months' imprisonment on each of the two summary charges. The judge also fined the appellant in respect of count 2. Thus, his Honour imposed a total effective sentence of 18 months' imprisonment in respect of the above offences. By the time he was sentenced, the appellant had almost completed a 12 month term of imprisonment which ended on 12 March 2007. That sentence was imposed on him in the Magistrates' Court on 18 January 2007 in circumstances where his release date was 12 March 2007. In light of the provisions of s 16(3C) of the Sentencing Act 1991, his Honour directed that the sentence be served cumulatively on the sentence imposed by the Magistrates' Court. In accordance with s 18(4) of the Sentencing Act his Honour declared that the appellant spend no time in custody in respect of the offences in question. His Honour also fixed a new non-parole period of nine months from the day of sentence. On 22 June 2007 a judge of this Court granted the appellant leave to appeal against his sentence pursuant to s 582 of the Crimes Act 1958.

**3 Before dealing with the appellant's grounds in support of his appeal, it is necessary to set out briefly the circumstances of the offending and of the appellant. During a search of the appellant's premises on 21 June 2006 pursuant to a search warrant, police located there a firearm, approximately 34 grams of cannabis L, a sword and a canister of mace (a non-lethal chemical preparation based on tear gas designed to be sprayed on people so as to cause temporary extreme irritation to the eyes and skin, thus making them incapable of violent action). The firearm was unregistered. It was a 4.5 mm calibre SR Industries single-shot spring piston air pistol. Part of the action was missing, so that the firearm could not be discharged in that state. When working, it discharged pellets propelled by compressed air. It was common ground that the appellant was a prohibited person for the purposes of the Firearms Act 1996. The possession of the firearm constituted breach of s 5(1A) of that Act, in respect of which a maximum custodial sentence of 15 years' imprisonment was prescribed. The possession of prohibited weapons by the appellant breached s 5(1) of the Control of Weapons Act 1990; the maximum penalty prescribed for that offence was six months' imprisonment.

4 Upon his arrest in relation to these offences, the appellant made full admissions and claimed that the firearm was kept for his protection and the cannabis was for his personal use. He explained that he had the mace to warn off dogs and that he had made the sword, a piece of metal which he sharpened on a grinder, and had it available in case he needed to fend off attackers.

5 The appellant had a troubled and disruptive upbringing. Because of a dysfunctional home environment, he spent a large part of his formative years in State care. His limited education did not go beyond Year 8. As the learned sentencing judge noted, at the age of 14 the appellant was placed in Turana Adolescent Unit and, at 16, he spent time in adult prison. He began experimenting with heroin at the age of 15 and then did not use it again for many years. His Honour noted that by the age of 29 the appellant was addicted to heroin but overcame that addiction by the age of 34. He also used cannabis, ceasing to use it in 2004 but resumed doing so a year later. Given that the appellant served a considerable number of years in prison, he did not have a good working history, although, whilst in custody, he completed a course in fork lift driving and became a qualified fork lift driver.

6 On the matter of the appellant's mental state, his Honour noted that Mr Healey said that personality testing indicated that the appellant had an underlying distressed and emotionally disturbed personality that could be controlled by medication. He diagnosed depression, a schizoid trend, anxiety, social introversion and a sociopathic trend. Mr Healey concluded that the appellant was of sound average intellectual capacity but was disturbed emotionally and that the therapeutic regime prescribed by Dr Orchard could provide appropriate control if the medication was taken accordingly.

7 Dr Orchard reported that the appellant had been his patient from 1 April 2004 until 31 March 2005, when he stopped attending. He diagnosed attention deficit hyperactivity disorder ("ADHD"), bipolar disorder and substance abuse disorder and prescribed dexamphetamine sulphate for his ADHD, to which the appellant had responded positively. Dr Orchard opined that had the appellant's ADHD been diagnosed sooner, his criminal record may have been significantly less than it was.

8 The learned sentencing judge noted that at the time of his arrest the appellant was living with his present partner with whom he has been in a relationship since 2004. She has one dependant child and four children who are independent. She has visited the appellant since he has been in custody and, as the learned sentencing judge noted, was willing to resume her relationship with him provided that he took his prescribed medication. His Honour also heard evidence from the appellant's step-father who is an electrical contractor for whom the appellant had worked in the past. He considered the appellant's work to be exemplary and said that he could trust him in relation to it. His Honour accepted that the appellant was able to reform and that he has support in his home environment and prospects of employment.

9 His Honour was also satisfied that at the time of the offences, and since then, the appellant suffered from bipolar disorder and ADHD and that he has engaged in substance abuse. This, coupled with his medical condition, said his Honour, had played an important part in his offending over time.

Ground 1: Appellant's impaired mental function not taken into account sufficiently

**11 The appellant's counsel who appeared before us essentially contended under cover of ground 1 that his Honour failed to give adequate weight to the appellant's mental condition in that the judge moderated the operation of the principles of specific and general deterrence but did not sufficiently take those matters into account so as to reduce the appellant's moral culpability for the offending or reduce the need for denunciation. Counsel pointed out that his Honour said that the appellant's medically unregulated behaviour did not lessen or excuse his offending, but merely placed it in context. It was claimed that his Honour's failure to reduce the appellant's moral culpability and the need for denunciation by reason of his medical and psychological state amounted to errors that vitiated his sentencing discretion.

12 I consider, however, that his Honour did not relevantly err in the extent to which he took into account for sentencing purposes the appellant's mental state and his failure to adhere to his medical regime. I consider that there is nothing in his Honour's comprehensive and sensitive sentencing remarks that establishes that he failed to treat the appellant's moral culpability and the need for denunciation as being affected by his condition. Thus, for example, as has been noted, his Honour accepted that the offences occurred in the context of the appellant's mental disorder and his then unmedicated state and he assessed his moral culpability, in my view, in light of those circumstances. His Honour recognised, correctly, I think, that these factors diminished his moral culpability[1] for the offending but that they did not altogether eliminate it. More particularly, in his sentencing remarks, his Honour lists and says he has taken into account the mitigating factors that were relied upon by the appellant's counsel on the plea in mitigation, and that included the appellant's bipolar disorder and ADHD. The judge later said that each of those factors was taken into account for sentencing purposes. In context, I think his Honour's statement that these matters do not "lessen or excuse" the offending is strictly correct, but I read the impugned expression as a compendious way of stating that the appellant's mental state did not excuse the offending altogether. Importantly, however, his Honour then went on in his sentencing remarks to confirm his earlier expressed view that he was satisfied that at the time of the offences and since then the appellant has suffered from the disorders to which I have referred and that the appellant's medical condition had been an important factor in the offending over time; and, although his Honour did not in terms there or elsewhere refer to moral culpability and denunciation as having been reduced by reason of the appellant's state, he plainly had that in mind when speaking of the amelioration in the sentencing principles due to the appellant's mental illness. What his Honour said was, in my view, essentially consistent with the conclusion by this Court in R v Verdins[2] that it was implicit from the judge's recognition that the appellant's mental state ameliorated deterrence that the judge also applied that to moral culpability and denunciation.

13 In the circumstances, I consider that ground 1 should fail.**

14 Under grounds 2 and 3, which alleged manifest excess in the sentence, it was essentially argued, as I understand it, that given the inoperative nature of the firearm and the circumstances in which the appellant kept the sword and the can of mace - namely, to deal with threats, actual or imaginary - the offences should not be regarded at the serious end of the scale, yet the sentence did not reflect this. That his Honour accepted, correctly, I think, that the primary offence and the summary offences were serious but that the offending in each case by the appellant was at the lower end of seriousness of examples of this type of offending is, in my view, beyond doubt. Moreover, as has been noted, his Honour considered it important that the weapon was incapable of firing.

**15 It is plain enough that the sentence had to reflect the gravity of the offence and the seriousness of the offending conduct as well as the applicable sentencing principles, balanced against the many mitigating factors applicable here, nearly all of which have been mentioned earlier. And as the appellant's counsel at the hearing of the plea in mitigation conceded, an immediate custodial sentence was an appropriate sentencing disposition. In my view, it is plain enough that the offence itself charged by count 1 was a very serious offence, given particularly the maximum custodial sentence prescribed and what this Court said in DPP v Faure[3]. In that case the Court noted that s 5(1A) of the Firearms Act 1996 had been introduced into the legislation in 2003 in the context of a general increase in penalties for firearm offences and carries a maximum penalty of 15 years' imprisonment. Their Honours also noted that the amendments to the Firearms Act not only increased the maximum penalty for the offence of possession of a firearm by a prohibited person, such as the appellant here, but they also created the new offence for which harsher penalties were introduced. The Court said that the amendments demonstrated the seriousness with which the legislature viewed the new offence, reflecting relevant community concern in the aftermath of several widely publicised shooting incidents. And although, as I have said, the appellant's offending in this case did not fall into the most serious example of this offence, it could not be considered as not being serious. Moreover, the appellant's prior criminal history was not irrelevant to the sentencing disposition.

16 Given those factors and the relevance of specific and general deterrence and the appellant's moral culpability, albeit all appropriately moderated to take into account the appellant's mental and unmedicated state at the relevant time such as to moderate those principles - all of which was taken into account by his Honour, I think - I consider that the sentence is not outside the range of sentences that was available to his Honour in the proper exercise of his sentencing discretion. Thus, I would also reject grounds 2 and 3.**

**17 Notwithstanding all that was said by counsel that could have been said for the appellant, I would dismiss the appeal.

20 The order of the Court is that the appeal against sentence is dismissed.**

[1] See, for example, R v Vodopic [2003] VSCA 172 [28].

[2] [2007] VSCA 102 [40]-[41].

[3] [2005] VSCA 91; (2005) 12 VR 115.