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. S entence manifestly excessive. 7 The maximum available penalty for each of the two offences charged was imprisonment for five years (see ss 117 and 154A of the Crimes Act 1900 NSW). 8 Although it would appear that the offences were spontaneous and although the truck was not taken with any intention of permanently retaining it or selling it, the offences were serious. The plea was offered early and assistance was provided, both insofar as the applicant volunteered himself for re-interview and insofar as he identified his co-offenders. Together those factors, which additionally show a degree of contrition on his part, were such as to justify the discount, in the order of 20 percent, which appears to have been given in the case. 9 The applicant was young, being 18 years of age at the time of the offences. By the time he appeared for sentence it appears, upon the material before his Honour, that he had undergone a significant change for the better and had abandoned the bad company into which he had fallen. An earlier stage of his life, during which he had associated with those persons, had seen him acquire convictions as a juvenile for offences of robbery, larceny and steal from a person, as well as a similar offence of take and drive a conveyance without consent of the owner. 10 The first series of offences involving robbery, larceny and steal from a person, attracted recognisances for two years which were still current, at the time of the present offences. That was a circumstance of considerable aggravation calling for the imposition of a custodial sentence of some severity. (See Richards (1981) 2 NSWLR 464; Daridis, NSW CCA 18 December 1986 and Tran (1999) NSWCCA 109.) 11 As an adult, the applicant had committed one offence of larceny and one offence of shoplifting before the present offences. The offence of shoplifting had attracted a Community Service order, while the sentence for larceny had attracted a fixed term of imprisonment for seven days. That matter went on appeal and as a consequence, although the offence of larceny had preceded the present offence, it was not until 26 November 1999 that the fixed term of seven days imprisonment was actually served. A further offence of shoplifting was outstanding at the time when the applicant appeared for sentence, however it occurred after the present offences. 12 In the light of that record, taking into account that there were two distinct aspects of criminality in the offences charged, and making full allowance for the applicant's youth and the recent improvement in his attitude, I am not persuaded that the overall terms were manifestly excessive. On the contrary, I consider them to have been well within range. 13 In this regard, the nature of the offences and the applicant's record were such as to require a sentence that reflected a significant element of general and specific deterrence. In particular his continuing disobedience to the law prior to the time when he appeared for sentence, meant that the fact of his youth could not be regarded as a barrier against the imposition of a sentence otherwise appropriate for his subjective and objective circumstances. This ground of appeal is therefore not made good. B. Special Circumstances. 14 It is evident from the sentencing order that his Honour did not find special circumstances. It is not however evident, in the absence of the Reasons, why that conclusion was reached. 15 In my view, there was material available to his Honour which did constitute special circumstances. They related to: a) the age of the applicant and the fact that this would be a first occasion of significant imprisonment for him, it always being important to bear in mind the significance of the first clanging of the gaol door for a young person; b) the clear evidence from his mother and stepfather that, following the period of 18 months during which he had fallen into trouble when associated with bad company, he had come to his senses, had resumed living at home and had been working; c) the somewhat neutral terms of the pre-sentence report, which did support the parents' assessment that there did seem to be favourable prospects for his future, although naturally that was somewhat guarded, having regard to his past record. 16 The case was one where the interest of the rehabilitation of a young person was of considerable importance. It was also one where both the applicant and the community stood to benefit from an extended period of supervision on parole. This justified a departure from the proportion between the head sentence and non-parole period otherwise required by S 44(2) of the Crime (Sentencing Procedure) Act 1999. I would, accordingly, grant leave to appeal. 17 The additional material placed before the court can therefore be taken into account. It shows firstly, that the applicant has behaved responsibly while in custody, having been entrusted with the job of Head Sweeper in 5 Wing of the Malabar Special Program Centre. That position he has managed, according to the report provided, "exceptionally well". In addition, there was evidence to the effect that the applicant is a Type 1 insulin dependent diabetic who has suffered a number of hypoglycaemic episodes while in custody requiring, on occasions, his hospitalisation. As is well-known, diabetes is a condition that requires access to food and exercise in circumstances that are not well catered for within the prison environment. It is also a condition which can have significant complications if hypoglycaemic episodes and associated convulsions are not readily and adequately managed. 18 It may also be taken into account in the present case, that his experience of a period in custody and of the associated hardship, will be something which will stand as a significant personal deterrent for him. It is a matter which I also consider could be profitably and well addressed during a period of post-release supervision, so as to bring home to him the consequences for him in the future if he should reoffend. 19 In all of these circumstances, I am of the view that this court should intervene and reduce the non-parole period to one of nine months to date from 20 November 2000 and to expire on 19 August 2001, that is, in almost one week's time. 20 I accordingly propose that leave to appeal be granted, that the non-parole period be quashed and in lieu thereof a non-parole period be imposed of nine months to date from 20 November 2000 and to expire on 20 August 2001. The applicant is to be released on parole on 20 August 2001, subject to such conditions as the Parole Board may specify. 21 SPERLING J: I agree 22 WOOD CJ AT CL: The order of the court will therefore be as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.