R v Shannon

Crown material on sentence

1. The following material was tendered by the Crown on sentence:

• Exhibit A - Crown sentence summary;
• Exhibit B - Crown written submissions; and
• Exhibit C - Facts sheets in relation to offences for which the offender served a sentence during his current period of remand.

The Agreed Facts

1. The offender was born in June 1998. He is now 31 years of age.

Items located within a cylinder in Somersby (Count 1)

1. On 23 June 2018, police responded to a police radio message that a male had located a white cylinder in bushland which appeared to contain firearms. Police attended Strickland Forest Road in Somersby and walked approximately 1.5 kilometres along Strickland Forest Road.
2. There police observed a white cylinder approximately 150 centimetres long and approximately 15 centimetres in diameter. Inside the cylinder police located the following items: 1. An unregistered shortened 12 gauge Squires Bingham Bentley repeating pump action shotgun with its butt stop and a portion of the barrel removed. It was found to be in working order; 2. .450 calibre British Bulldog five chamber revolver, nil serial number, which was found not to be in working order due to a broken flat spring; 3. Unregistered .32 Winchester Centre Fire Calibre Winchester model 92 repeating lever action rifle found to be in working order; 4. Unregistered shortened Amadeo Rossi double barrel (side by side) shotgun, missing its right side external hammer with portions of the barrel and butt stop removed. It was found to be in working order; 5. .22 calibre unknown manufacture single shot pen pistol found to be in working order; 6. A shortened wooden firearm butt stop (Form 1 - Acquire firearm part without authority). 7. Shortened wooden firearm butt stop (Form 1 - Acquire firearm part without authority); 8. The following ammunition: nine 12 gauge shotgun cartridges; seven 12 gauge shotgun cartridges; 22 .22 calibre rounds; 45 .22 calibre rounds; two Rio Game load rounds; and one red coloured round of 12 gauge ammunition (Form 1 - Possess ammunition). 9. A clear resealable bag containing 3.23 grams of 3,4 methylenedioxyanphetamine (Form 1 - Supply prohibited drug).
3. Police placed the cylinder in the rear of the police vehicle and returned to Gosford Police Station. Forensic analysis of those items found within the cylinder linked this offender to the contents of that cylinder.
4. On 29 August 2018, the offender was offered the opportunity to participate in an interview in relation to the items found. The offender declined to participate in an interview.

Search Warrant at 25/70 Hills Street, North Gosford (Count 2)

1. On 29 June 2018, police executed a search warrant at premises occupied by the offender. At the time police entered the unit, the offender was seen to walk onto a balcony of the unit and appeared to reach over the balcony with his right hand. It appeared that he had thrown something from the balcony.
2. Police walked over to the balcony and saw a white substance was strewn across the footpath. Police then commenced a search of the unit and located, amongst other things, the following items: 1. A total of 78.44 grams of methylamphetamine. The quantity of amphetamine was made up of the following: 7.22 grams of methylamphetamine in a plastic bag found on a ledge of Unit 15, that is, the unit directly below the offender's unit; 69.75 grams of methylamphetamine found on the footpath below the offender's unit; 2. Two further small bags of methylamphetamine being 1.19 grams and 0.28 grams inside plastic resealable bags found on the balcony of unit 15; 3. A total of $13,440 in Australian currency, which was located inside the unit (Form 1 - Deal with proceeds of crime); 4. Ammunition being 45 .22 short calibre cartridges and 16 .410 calibre shotgun cartridges and a .22 round (Form 1 - Possess ammunition); 5. A black fabric tied handled slingshot (Form 1 - Possess prohibited weapon); 6. An extendable baton (Form 1 - Possess prohibited weapon); 7. Knuckle dusters (Form 1 - Possess prohibited weapon); 8. A 12 gauge portion of a shotgun barrel (Form 1 - Acquire firearm part without authority).
3. Whilst in the unit, police observed numerous items consistent with drug use including glass pipe, scales, butane burners and clear resealable bags.
4. The offender was subsequently placed under arrest and taken to Gosford Police Station. The offender participated in a record of interview and declined to comment on any of the allegations.
5. As at the date of the execution of the search warrant, the offender was not the holder of a firearms licence or permit in New South Wales and he was not authorised to have in his possession any prohibited weapon under the Weapons Prohibition Act.
6. A number of the items seized from the unit were subject to forensic analysis and a number of those items were linked to the offender.

Supply prohibited drug (166.25 grams of methylamphetamine) (Count 3)

1. An Apple iPhone that had been seized by police during the execution of the search warrant was subject to police analysis. This revealed that the offender had been engaged in the supply of 118.5 grams of methylamphetamine between 26 May 2018 and 29 June 2018. That quantity was derived from 39 text messages sent between those dates.
2. There was further analysis of another iPhone seized by police which disclosed that the offender had been engaged in the supply of 47.75 grams of methylamphetamine between 3 April 2018 and 31 May 2018. That quantity is derived from 20 text messages which disclose quantities of methylamphetamine being supplied in various quantities between 0.875 grams and 7 grams.
3. Those Agreed Facts clearly disclose very serious objective criminality. In sentencing for firearm offences, general deterrence has an important role to play. Members of the community must well understand that the Courts will impose very significant punishment upon individuals who illegally possess firearms.
4. The Courts are concerned to ensure that the penalties imposed deter members of the community from the illegal possession of firearms. This promotes the protection and safety of the community. Clearly unregistered firearms in the community create very significant risk to safety.
5. In relation to the offences of supplying prohibited drugs, those offences are regarded by the Courts as extremely serious in circumstances where there are very significant detrimental effects to the community. The supply of prohibited drugs destroys the lives of individuals, it disrupts families, it generates a significant cost to the community both socially and financially. The community expects and is entitled to expect that persons who commit this offence will face condign punishment.
6. In sentencing for the supply offences, the quantity of the prohibited drug is of significance when assessing the objective seriousness of the offending: see generally R v West [2014] NSWCCA 250.
7. Recently in Parente v R [2017] NSWCCA 284, the Court identified how a sentencing court should approach sentences in drug supply cases. I have taken into account the general principles established in Parente v R in determining the appropriate sentence.

Assessment of objective seriousness

1. In assessing the objective seriousness of Count 1, possess more than three unregistered firearms including a prohibited firearm, I have taken into account the following factors (see generally Mack v R [2009] NSWCCA 216 at [40]): 1. The number of firearms is five, recognising that the offence relates to the possession of more than three firearms; 2. Four of the firearms were found to be in working order (the pump action shotgun, the repeating lever action rifle, a shortened shotgun and a single shot pen pistol); 3. The firearms included one prohibited pistol and three prohibited firearms (two were shortened firearms); 4. There is no evidence before the Court in relation to the offender's purpose for possession of the firearms; 5. The firearms were located unsecured in an area of bushland; 6. The firearms were found stored with ammunition; 7. There is insufficient evidence to establish any relationship between the possession of the firearms and the drug supply offences;
2. Having regard to those factors, I assess the objective seriousness of this offence as being below the middle of the range. An important factor in that assessment is the number of firearms located.
3. In assessing the objective seriousness of the offences of supply prohibited drug (Count 2, 78.44 grams and Count 3, 166.25 grams), I have taken into account the following factors: 1. The quantity of the drugs supplied, recognising that the traffickable quantity is 3 grams, the indictable quantity is 5 grams and the commercial quantity is 250 grams; 2. The role of the offender. Having regard to the quantities supplied, I am satisfied that the offender can properly be characterised as a street level dealer; 3. The duration of the offending. In relation to Count 3, between 3 April 2018 and 29 June 2018; and 4. I accept that at the time of the offending the offender had a longstanding drug habit and some of the proceeds would have been utilised to fund that habit. This situation is to be distinguished from the supplier who supplies purely for commercial gain.
4. Having regard to those factors, I assess the objective seriousness of Count 2 as below the middle of the range. I assess the objective seriousness of Count 3 as just below the middle of the range.

Aggravating features

1. I am satisfied that the offender was on conditional liberty at the time of the offending in circumstances where a three year good behaviour bond had been imposed on 9 June 2017 in relation to an offence of possess prohibited drug. He was also on bail for two offences of drive whilst disqualified.

Subjective circumstances

1. The offender is now 31 years of age.
2. He has a criminal history commencing in 2007 when he was dealt with for two offences of drive while suspended and low range PCA. In respect of each of those matters he received a bond.
3. In 2013, he was dealt with for an offence of possess prohibited drug and received a bond.
4. In 2016, he was dealt with for an offence of steal motor vehicle. He received a s 12 suspended sentence for eight months. He was called up in respect of that matter and sentenced to eight months imprisonment with a non-parole period of five months.
5. In 2016, he was dealt with for the offences of stalk and intimidate and possess prohibited drug. In respect of each of those matters he received a bond. He was also dealt with for contravening an Apprehended Violence Order in respect of which he was fined.
6. In that same year, he was dealt with for possess housebreaking implements and received a term of imprisonment of eight months with a non-parole period of four months. He also received a fixed term of four months for an offence of goods in custody.
7. In 2018, he was sentenced to an aggregate sentence of 21 months with a non-parole period of 15 months for five offences being one offence of drive whilst disqualified, one offence of supply prohibited drug, two offences of deal with proceeds of crime and one offence of police pursuit. It was that sentence that he has served whilst on remand for the current offences.
8. In 2018, he was also dealt with for the offence of possess or use a prohibited weapon without permit in respect of which he was fined.
9. The offender also has a limited record in the Northern Territory.
10. In 2013, he was dealt with for the offences of enter building with intent to damage property, unlawfully use motor vehicle, low range PCA, not stop after accident, drive uninsured, ride a motor vehicle (no helmet), drive without due care and drive unregistered motor vehicle. He was fined $2,000 and received a Community Service Order for 56 hours.
11. Having regard to the offender's criminal history, I am satisfied that it disentitles him to the leniency on sentence that would be otherwise available to a person of good character.
12. The following material was relied upon by the offender during the sentence proceedings:

• Exhibit 1 - Defence submissions (paras 10 to 14 were not relied upon in the absence of evidence being called); and
• Exhibit 2 - Supplementary defence written submissions.

1. Mark Shannon (the offender's father) gave evidence during the sentence proceedings. He told the Court that the offender is in a relationship with his co-offender, Ms Ritchie and they have a seven month old daughter. The offender also has a five year old son from a previous partner.
2. The offender had told his father that he is hopeful of gaining custody of his son once he is released from custody. He is also desirous of seeking employment in a labouring role and may move to the mid-North Coast near Port Macquarie to a property owned by his father.
3. The accused's father indicated that he was aware that the offender had a problem with methylamphetamine for the past five to six years. The offender's father indicated that the offender had expressed an intention to abstain from prohibited drugs once released from custody. The offender's father also indicated that he has experienced health issues as a consequence of his use of prohibited drugs, namely he has had hepatitis and also liver problems.
4. The offender's father indicated that the offender's family intends to support him upon his release from custody in order to assist him to remain drug free. I note that a number of the offender's family members were present in Court to support the offender during the sentence proceedings.

Submissions on behalf of the parties

1. Both the Crown and Mr O'Sullivan on behalf of the accused relied upon written submissions supplemented by oral submissions. I have had regard to those submissions in determining the appropriate sentences.

Prospects of rehabilitation

1. Any view of the offender's prospects of rehabilitation must necessarily be guarded at this stage in circumstances where he has had longstanding substance use issues which are currently untreated. It is positive that the offender has expressed an intention to remain drug free once he is released from custody. He is also very fortunate indeed to have ongoing support not only from his partner but also his family.
2. The Court is hopeful that he does obtain treatment upon release so that he can look forward to a much more positive future. At this stage, I am unable to find that he is unlikely to reoffend.

Special circumstances

1. It was submitted on behalf of the offender that the Court would find special circumstances and vary the statutory ratio between the non-parole period and the parole period in circumstances where it was submitted that the offender will need treatment to remain abstinent from drugs once he is released from custody. I accept that submission.
2. I am also satisfied that a finding of special circumstances is warranted in circumstances where the sentence imposed today will be partially cumulative on the sentence the offender has served whilst he has been in custody on remand.
3. Accordingly, I propose to vary the statutory ratio between the non-parole period and the parole period pursuant to s 44(2B), Crimes (Sentencing Procedure) Act.

Totality

1. There are two issues that arise with respect to totality. Firstly, the question of totality with respect to Counts 1, 2 and 3 and secondly, totality in relation to the sentence to be imposed today in respect of the sentence that the offender has served whilst in custody on remand.
2. With respect to Count 1 on the indictment (possess more than three unregistered firearms including prohibited firearm), I propose to impose some partial accumulation upon Counts 2 and 3 in circumstances where it is serious criminality of a separate and distinct nature.
3. With respect to Counts 2 and 3 (supply prohibited drugs), I propose to make the sentences concurrent in circumstances where that was the approach adopted by Bozic J when he sentenced the co-offender Ms Ritchie. I am of the view that this offender would have a justifiable sense of grievance if the matter was approached differently.
4. In relation to the question of totality with the sentence served whilst the offender has been on remand, I propose some partial concurrency (six months) in circumstances where that sentence included drug related offending that had occurred at a time proximate to the current offences. The facts in relation to the earlier sentence are contained in Exhibit C.

Parity

1. In relation to Counts 2 and 3 (supply prohibited drugs), I am satisfied that there is general parity between this offender and his co-offender Ms Ritchie having regard to the objective facts. During the course of the sentence proceedings I have had regard to the remarks on sentence of Bozic J in relation to Ms Ritchie from 20 June 2019.
2. Ms Ritchie appeared for sentence in relation to the following two offences on indictment: 1. Supply prohibited drug (78.44 grams methylamphetamine) - An offence pursuant to s 25(1), Drug Misuse and Trafficking Act. That charge related to the same prohibited drugs that are the subject of Count 2 in respect of this offender. 2. A second offence of supply prohibited drug (113.425 grams of methylamphetamine). That offence related to information obtained from a mobile phone.
3. Ms Ritchie was also dealt with for two further offences on a Form 1 of possess prohibited drug (1.72 grams of methylamphetamine) and a further offence of supply prohibited drug (6.97 grams methylamphetamine).
4. Ms Ritchie was sentenced to an aggregate term of imprisonment of two years and nine months to be served by way of an Intensive Correction Order.
5. In relation to the offence of supply prohibited drug (relating to 78.44 grams of methylamphetamine) taking into account two matters on a Form 1, the starting term of the sentence was three years discounted by 25% for the plea of guilty to two years and three months.
6. In respect of the offence of supply prohibited drug (113.425 grams of methylamphetamine) the starting term was four years discounted by 25% for the plea of guilty.
7. In relation to the question of parity, I am satisfied that the subjective circumstances of this offender are distinguishable from the co-offender Ms Ritchie in circumstances where this offender was on conditional liberty at the time of the commission of the offences.
8. Accordingly, there will be a modest upward moderation of the otherwise appropriate sentences in relation to Counts 2 and 3.

Determination

1. In determining the appropriate sentence I have had regard to the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act.
2. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate in respect of each offence (s 5(1), Crimes (Sentencing Procedure) Act).
3. I have had regard to the prescribed maximum penalties. I have had regard to the standard non-parole period where applicable in accordance with s 54B(2), Crimes (Sentencing Procedure) Act.
4. In sentencing the offender I have also taken into account the Form 1 matters in accordance with the principles enunciated in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.
5. I propose to impose an aggregate sentence pursuant to s 53A(1), Crimes (Sentencing Procedure) Act.
6. In accordance with s 53A(2)(b), the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence are as follows: 1. Count 1 - Taking into account the Form 1 matters, a starting term of five years, discounted by 10% for the plea of guilty leaving a total term of 4 years and 6 months with a non-parole period of 2 years and 8 months. 2. Count 2 - Taking into account the Form 1 matters, a starting term of 3 years and 6 months discounted by 10% for the plea of guilty leaving a total term of 3 years and 1 month. 3. Count 3 - A starting term of four and a half years discounted by 10% for the plea of guilty, leaving a total term of 4 years.
7. Mr Shannon, in relation to each offence you are convicted.
8. You are sentenced to a total aggregate term of imprisonment of 7 years and 6 months to date from 28 March 2019 and to expire on 27 September 2026, with a non-parole period of 4 years and 6 months to date from 28 March 2019 and expire on 27 September 2023.
9. The first date upon which you will become eligible for parole is 27 September 2023.
10. I have found special circumstances and I have varied the statutory ratio between the non-parole period and the parole period so you will spend less time in custody and more time in parole. I have done that in order to assist you upon your release and I am hopeful that you do get treatment and you are able to remain drug free.
11. Pursuant to s 18(1), Confiscation of Proceeds of Crime Act, cash in the sum of $13,440 is forfeited to the State.

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