Regina v Daniel Shanks

CITATION : Regina v Daniel Shanks [2002] NSWCCA 438 FILE NUMBER(S) : CCA 60498/01; 60534/01 HEARING DATE(S) : 29/10/02 JUDGMENT DATE : 29 October 2002

PARTIES : Regina Daniel John Shanks JUDGMENT OF : Dunford J at 44; Kirby J at 1

LOWER COURT JURISDICTION : District Court 00/21/0075; 00/21/0238; 00/11/0572: LOWER COURT FILE NUMBER(S) : 01/21/0209

LOWER COURT JUDICIAL Neild DCJ: Black DCJ OFFICER :

COUNSEL : P Barrett (Crown) In Person (Appl) SOLICITORS : S E O'Connor (Crown) In Person (Appl) CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE - Appeal against severity of sentence - Armed robbery in company - On parole - Break and enter in circumstances of special aggravation - Escape whilst at Court LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Pearce v The Queen (1998) 194 CLR 610 CASES CITED: R v Burke [2002] NSWCCA 353 R v Thomson (CCA, unreported, 21 May 1986) Regina v Simonds (CCA, unreported, 6 May 1991) DECISION : Apeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60498/01

DUNFORD J KIRBY J

REGINA v Daniel John SHANKS Judgment 1 KIRBY J: Daniel John Shanks (the applicant) seeks leave to appeal against the sentence imposed by Neild DCJ in the District Court on 16 July 2001. Mr Shanks pleaded guilty to three charges, namely: · First, robbery whilst armed with a dangerous weapon (s97(2) of the Crimes Act 1900) (the Act); · Secondly, break and enter in circumstances of special aggravation (s112(3) of the Act); · Thirdly, steal a motor vehicle (s154AA of the Act). 2 In addition, Mr Shanks acknowledged guilt in respect of a further charge of break and enter, which he asked his Honour to take into account on a Form 1. His Honour did so on the second charge. 3 The offences were plainly serious. The first and second charges carried a maximum penalty of twenty-five years. The maximum penalty for the third offence, that of stealing a motor vehicle, when presented on indictment, carried a penalty of imprisonment for ten years. 4 The offences were the more serious because they were committed whilst the applicant was on parole. On 12 December 1995 Mr Shanks was sentenced in the District Court on five counts of armed robbery. The term imposed was six and a half years, dating from his arrest on 9 May 1995. A non-parole period of four years was fixed. 5 Mr Shanks became eligible for parole on 9 May 1999. He was released on that day. Within a matter of months, he had committed the offences the subject of this appeal. The robbery was committed on 24 August 1999; the break enter and steal on 4 October 1999. The motor vehicle, the subject of the third count, was stolen in early October 1999. 6 His Honour Neild DCJ fixed the following penalties in respect of the three counts: · On the first count, robbery whilst armed with a dangerous weapon, his Honour sentenced Mr Shanks to imprisonment for 8 years, made up of a non-parole period of 5 years, with an additional term of 3 years. · On the second count, that of break and enter in circumstances of special aggravation (taking account of the offence on the Form 1), his Honour again sentenced Mr Shanks to a period of 8 years, specifying a non-parole period of 4 years. · On the third count, stealing a motor vehicle, his Honour sentenced Mr Shanks to 3 years and 2 months, with a non-parole period of 1 year. 7 Having identified the sentence for each offence, as required in Pearce v The Queen (1998) 194 CLR 610, his Honour then referred to the principle of totality. That is, he determined an appropriate sentence, reflecting the overall criminality of Mr Shanks. He recognised that it would be too harsh to make each sentence cumulative. He, therefore, adjusted the total sentence, making the first and second sentences partly cumulative, and partly concurrent. The sentence on the third count (steal a motor vehicle), was made wholly concurrent. The end result was a sentence of 12 years, with a non-parole period of 8 years. 8 Mr Shanks was arrested on 21 October 1999. He was charged with a further offence of break, enter and steal, which is not the subject of this appeal. He was sentenced for that offence on 9 October 2000 to imprisonment for two and a half years with a non-parole period of two years. The non-parole period expired on 18 October 2001. His Honour, Neild DCJ fixed the commencement date for the sentences he imposed (being the sentences under appeal) as 20 October 2001. 9 Mr Shanks has appeared for himself. He has furnished a lengthy and thoughtful commentary upon the sentences imposed. He has identified a number of issues. It is convenient to describe briefly the circumstances giving rise to each charge, and then consider Mr Shanks' complaints.

The Armed Robbery Charge 10 Mr Shanks was charged on a joint indictment with a Mr Inamata with having, on 24 August 1999, robbed the St George Bank at Wetherill Park. The offence involved a degree of planning. On certain mornings each week the automatic teller machines at the bank were replenished with cash. The robbery took place on one such day at 8.45 am. The bank was fitted with a roller shutter door. An employee sought access through that door. Mr Shanks and his companion were waiting outside the bank. When the door was two or three feet open, they ran forward, forcing their way underneath the door. In the process, a female employee was pushed to one side. She fell, severely bruising her wrist. 11 Once inside the bank, Mr Shanks and his companion sought access to the area that housed the ATM. That area was sealed by a glass door. The two kicked at the door, but were unable to shift it. Mr Shanks then produced a semi-automatic pistol, which he placed against the glass. He demanded that the door be opened. However, they were not able to gain entry to that room. Instead, they went behind the service counter, where they removed $57,000 from the cash drawers. They then left the bank, escaping in a vehicle that had been parked outside. 12 The images of Mr Shanks and Mr Inamata were captured on the video surveillance system of the bank. Bank employees were later able to identify each of them. 13 The matter was called on for trial before Neild DCJ. There was an application for separate trials. The identification evidence was called on the voir dire. His Honour determined that there should be a joint trial. The following day Mr Shanks pleaded guilty. 14 His Honour recognised the serious nature of the offence. It was committed in company. Mr Shanks had a dangerous weapon, a pistol. The weapon had been used to terrify those within the bank into submission. A bank staff member was injured, although not seriously. A substantial amount of money was stolen. None of it has been recovered. The offence was the result of planning. It was committed when Mr Shanks was on parole in respect of precisely the same type of offence, armed robbery. 15 Mr Shanks, in his submission, makes no complaint about the 10 per cent discount his Honour allowed for the plea of guilty. His complaint is based, first, upon statistics maintained by the Judicial Commission, and secondly, upon particular cases where sentences imposed were significantly shorter than the sentence imposed upon him. The statistics indicate that only 11 percent of offenders received a sentence of comparable length. 16 The statistics are unquestionably useful. Insight can be provided by looking at a range of cases which are thought to be comparable. However, the features of this crime, which his Honour identified, and which I have described, certainly placed it in the most serious category, in my view. I shall have more to say, in a moment, about the subjective features of the applicant's case. However, I am not persuaded that there was error in the term fixed by his Honour.

The Break Enter and Steal 17 Let me turn, then, to the circumstances giving rise to the charge of break and enter in circumstances of special aggravation. It is convenient to deal with the third count, steal a motor vehicle, at the same time. A truck, was stolen in the period coinciding with a break and enter (between 2 and 5 October). It was stolen, one assumes, in connection with the planned break and enter. 18 However that may be, the truck belonged to the Department of Education and Training. It was parked inside a college complex secured by gates. Two windows of a building within that complex were broken in the course of gaining access. The gates to the college were then damaged as the truck was driven out. The truck was also damaged. It was ultimately recovered. The repair of the truck cost $5,742, paid by the college's insurers, the Government Insurance Office. 19 The offence, the subject of the second count, was committed on 4 October 1999. A statement of facts was provided to the sentencing judge, together with a bundle of witness statements. Three offenders were involved, including Mr Shanks. All three attended the Westfield Shopping Centre at Parramatta. Their images were captured on video surveillance cameras in operation at the centre. Mr Shanks and one of his co-offenders broke into the Hound Dog clothing store. They attempted to open a safe, but were unsuccessful. Mr Shanks then left the store. According to the statement of facts, he asked his co-offenders to return to the store whilst he remained outside. The two co-accused went back to the store. They stole clothing valued at approximately $1,000 and cash amounting to $2,445. As the two co-accused left the store, they were seen by a security officer. He followed them. The security officer heard the sound of a click. He saw one of the offenders with a pistol. He heard another click. He mistakenly thought that the pistol was a toy gun. A telephone conversation, lawfully recorded under a warrant, suggested the gun belonged to Mr Shanks. 20 Another security officer became involved in the chase. A shot was fired. The security guard described having felt something "whiz past him". The two co-offenders ran from the shopping centre. 21 Yet another security guard joined in the pursuit. He saw the muzzle of a gun protruding from around a building. He heard a shot discharge. He was struck on the ankle. Fortunately the wound was superficial, damaging only the soft tissue of the ankle. 22 His Honour catalogued the matters which made the offence the more serious. It was committed in company. It was planned. The store was ransacked. Clothing and money were stolen. One member of the trio, although not the applicant, was armed with a pistol. Security guards were threatened, shot at, and, in one case, wounded. The offence occurred whilst Mr Shanks was on parole. 23 His Honour was asked to take account of a further offence of break and enter on a Form 1. The offence had been committed some time before. Mr Shanks acknowledged that on 11 November 1994 he had broken and entered the office of Norris Technology, stealing $200. 24 His Honour, in his remarks, gave consideration to the appropriate discount for the plea of guilty. The plea was entered on the day fixed for trial. On the other hand, the Crown case against Mr Shanks was described as "not particularly strong". His Honour determined that a discount of 20 per cent was appropriate. Making that discount, and taking account of Mr Shanks' subjective case, his Honour fixed 8 years imprisonment as the appropriate sentence, with a 4 year non-parole period. His Honour, as mentioned, partially accumulated that sentence with the sentence imposed for the armed robbery. 25 Mr Shanks identified in his submission a number of matters which made the sentence too severe. First, he believed that some of the clothing and money was recovered. Secondly, he did not take part in the shooting. He, in fact, left the scene, not waiting for his co-offenders. Thirdly, although he pleaded guilty on the day fixed for trial, his counsel had communicated to the Director of Public Prosecutions several days before that he intended to do so. He entered his plea once the DPP had indicated that it would not proceed with certain additional charges, including malicious wounding. 26 Fourthly, Mr Shanks again pointed to the statistics compiled by the Judicial Commission. In a sample of 23 cases, only 36 per cent attracted a sentence of 8 years. Having regard to his role, he suggested that the sentence was too harsh. 27 Let me deal with each of these arguments. In the context of this crime, the property which Mr Shanks and his companions managed to steal was not the most significant aspect. Clearly, they were, to some degree, thwarted, through being unable to open the safe. Assuming the recovery of some property, such recovery would not, in my view, have made a material difference to the sentence imposed. 28 Likewise, the communication of a few days before the trial of the applicant's intention to plead guilty, would not have made a difference to the discount appropriate for that plea. It may have been otherwise had the plea been entered at the stage of the committal proceedings. 29 In respect of the remaining issues, his Honour was well aware that it was the co-offenders, not the applicant, who fired the shots. In his remarks on sentence his Honour said this: "I note that the prisoner was not the offender who was armed with a pistol, and that he was not physically present when one of the other two offenders, the one with the pistol, fired the pistol at Mr Rafter, wounding Mr Rafter." 30 The assertion by Mr Shanks, that having left the shopping centre, he got in his car and went home, is unsupported by evidence. Mr Shanks did not give evidence on sentence. The matter proceeded by way of agreed facts. His Honour described the circumstances in which the offence occurred as "not in dispute". The Statement of Facts included the following statement: "Shanks then left the centre and requested his co-offenders to return to the store. Shanks remained outside the centre." 31 His Honour, appropriately, dealt with the matter upon that basis. 32 Finally, the statistics reflect the broad position I would have expected. Unquestionably, the offence was at the upper end of the scale. His Honour was also obliged to take account of the matter on the Form 1. I see no error in the sentence imposed. 33 Mr Shanks suggested that the sentence ultimately imposed should have been characterised as a spree and the sentence moderated on this account. The same gun was used in both offences. However, the sentences were separated in time. They were different in personnel, in target and in method. The proper approach was that taken by his Honour, that is, to assess each separately, as required by Pearce v The Queen (supra), and then to apply the principle of totality.

Other Issues Raised by the Applicant 34 Mr Shanks raised a number of other issues. They included his prospects of rehabilitation, his family support, and the fact that he suffers from Hepatitis C. His Honour had the benefit of a report from the Probation and Parole Service. That Service stated that whilst Mr Shanks had some desire to give up drugs, he did not have any strong motivation to do so. Indeed, they said: "In discussing his current attitude to drug usage upon his eventual release from custody he impressed as being forthright and realistic in stating that while he hoped to be drug free there is an element of uncertainty and he cannot predict an outcome. He did not demonstrate any motivation at this time to alter his entrenched drug related lifestyle, preferring to adopt a 'wait and see' attitude. He did not discount the possibility of a rehabilitation programme, or alternatively, naltrexone treatment." 35 His Honour specifically commented upon the support which Mr Shanks had from family members. It is a matter he took into account in fixing the sentence he imposed. 36 No evidence was placed before his Honour concerning Mr Shanks having had Hepatitis C. Mr Shanks' submission, however, annexes a certificate confirming that in 1975 he had antibodies consistent with having had that disease. Mr Shanks said in his submission that his liver is now worse, as a result of chronic drug use. However, even taking account of that evidence, such as it is, I believe that the sentence ultimately imposed, that is 12 years with an 8 year non-parole period, is not manifestly excessive (cf R v Burke [2002] NSWCCA 353). These were serious offences, and there were a number of them. They occurred within a very short time of Mr Shanks' release on parole, that parole having been fixed in respect of similar offences. I do not believe that this Court should disturb the sentences imposed by his Honour Neild DCJ.

Escape from Custody 37 Moving from that matter to the other appeal, lodged in respect of the charge of escape from custody, it appears that on 7 June 2000 Mr Shanks appeared at the Parramatta Local Court. He did so for the mention of various charges. Whilst at Court, and after communicating with people who were said to be in the gallery, he jumped from the dock. He ran through the front door of the Court. He was chased by a number of police. He was later seen running alongside the Parramatta River. 38 Shortly after Mr Shanks was intercepted by police. They asked him to stop. He immediately did so. He had only been at liberty for a short time. No-one was injured. 39 Mr Shanks came before his Honour Black DCJ in the District Court on 6 August 2001 charged with escape from lawful custody. He pleaded guilty. His Honour, in his remarks on sentence, characterised the offence as "very much at the lower end of the scale of escapes". Noting that the maximum penalty under s310 of the Crimes Act was 14 years, his Honour sentenced Mr Shanks to a fixed term of 12 months imprisonment. The sentence was required to be cumulative under s57(2) and (3) of the Crimes (Sentencing Procedure) Act 1999. His Honour therefore specified the commencement date as the expiration of the parole period fixed by Neild DCJ, namely, 19 October 2009. 40 Mr Shanks, in his submission, emphasised that he did not harm anyone. However, as mentioned, his Honour was well aware of that. Mr Shanks pointed to other particular cases, where a lesser penalty was imposed. Each case, to some extent, depends upon its own facts. Nonetheless, Street CJ, with whom Lee and Foster JJ agreed, made the following comment in R v Thomson (CCA, unreported, 21 May 1986): "Sentences in the order of six to nine months, whilst not necessarily erroneous, are below the pattern ordinarily to be expected." 41 The Chief Justice added: "The ordinary level of sentence for what might be called an unremarkable escape could be expected to approximate two years." 42 This was a statement made before the introduction of the Sentencing Act, 1989 (see Regina v Simonds (CCA, unreported, 6 May 1991) per Wood J at 3). Nonetheless, the remarks in my view are still apposite. Mr Shanks, in his submission, suggested that the Chief Justice's remarks only had application to those held in a minimum security gaol. No doubt such a gaol is likely to give rise more readily to the temptation to escape. However, I believe the remarks are of general relevance, and are apposite in respect of the circumstances which confronted the sentencing judge. I believe that the sentence of twelve months which was imposed was well within the sentencing discretion which his Honour had. 43 The orders I would therefore propose, in respect of both the sentences imposed by Neild DCJ and Black DCJ, are as follows:

2. But the appeal in each case be dismissed. 44 DUNFORD J: I agree. The orders therefore will be as indicated by Kirby J. **********

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