R v Penman [2001] NSWCCA 308

New South Wales Court of Criminal Appeal

CITATION : R v Penman [2001] NSWCCA 308 revised - 13/09/2001 FILE NUMBER(S) : CCA 60812/00 HEARING DATE(S) : 13th August 2001 JUDGMENT DATE : 13 August 2001

PARTIES : Regina Aaron Penman JUDGMENT OF : Wood CJ at CL at 1; Sperling J at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1100 LOWER COURT JUDICIAL O'Reilly DCJ OFFICER :

COUNSEL : J.S. Andrews (A) E.A Wilkins (C) SOLICITORS : D J Humphreys S E O'Connor CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence - one count of larceny - one count of take a conveyance without consent - whether sentence manifestly excessive - offences committed while appellant on recognisance - circumstance of considerable aggravation - general and specific deterrence - whether special circumstances found - rehabilitation of importance - special circumstances found to justify departure from ratio between head sentence and non-parole period CASES CITED: Crimes Act 1900 ss 117, 154A Crime (Sentencing procedure) Act 1999 s 44(2) DECISION : Leave to appeal granted. Non parole period quashed and in lieu thereof a non parole period imposed of 9 months from 20/11/2000, to expire on 19/8/2001. Applicant to be released on parole on 20 August 2001 subject to such conditions as the Parole Board may specify.

IN THE COURT OF CRIMINAL APPEAL

60812/00

WOOD CJ AT CL SPERLING J

MONDAY 13 AUGUST 2001 REGINA v AARON PENMAN JUDGMENT 1 WOOD CJ AT CL: On 26 October 2000 the applicant pleaded guilty to one count of larceny and to one count of take a conveyance without consent of its owner. He was sentenced by O'Reilly DCJ on 12 December 2000, in relation to each count, to imprisonment for 16 months with a non-parole period of 12 months. A pre-sentence period of custody of 23 days was taken into account in his favour. The sentence and non parole period were each specified to date from 20 November 2000. 2 The offences of which the applicant was convicted occurred on 1 September 1999 and involved the taking of a truck, and the theft of the furniture which it contained. When initially interviewed by police, following discovery at his home of some of the stolen furniture, the applicant offered an explanation along the lines that, while walking home, he had been approached by a man who had offered the furniture to him for $300. 3 On 20 December 1999 he was, at his own request, reinterviewed by police. On that occasion he admitted to having stolen the truck and furniture, it being his account that along with three other men he had come upon the truck parked by the side of the road and finding the keys in it, they had driven it away. Some of the furniture he acknowledged had been sold before the truck was abandoned. 4 It was upon the basis of those agreed facts that he was sentenced and it is upon the basis of those facts that it is necessary for this court to re-examine the matter. In that regard, it is necessary for us to re-examine the matter for the reason that, regrettably, the Court Reporting tape of the Reasons for Sentence has been lost, so that we do not have the benefit of knowing precisely how it was that his Honour approached the sentencing of the applicant, beyond so much as is discernible from the bare sentencing order, and from a brief note provided by his Honour as to what he recalled of the matter. That recollection, his Honour admitted, was imperfect. 5 The application is brought to this court upon two bases: First, that the sentence was manifestly excessive and secondly, that special circumstances should have been found justifying a departure from the 75 percent ratio between the non-parole period and the head sentence. 6 I shall deal with these grounds in terms.