New South Wales Court of Criminal Appeal CITATION : R v PECKHAM [2003] NSWCCA 293 HEARING DATE(S) : 3 October 2003 JUDGMENT DATE : 3 October 2003 JUDGMENT OF : Hulme J at 1; Greg James J at 38 DECISION : Leave to appeal granted; Appeal dismissed PARTIES : Regina Brent Paul Peckham FILE NUMBER(S) : CCA 60246/03 COUNSEL : Crown: D Frearson Appellant: AJ Bellanto QC SOLICITORS : Crown: CK Smith Appellant: P White LOWER COURT District Court JURISDICTION : LOWER COURT 02/61/1096 FILE NUMBER(S) : LOWER COURT Shillington DCJ JUDICIAL OFFICER : - 10 - IN THE COURT OF CRIMINAL APPEAL 60246/03 HULME J GREG JAMES J Friday, 3 October 2003 REGINA v Brent Paul PECKHAM Judgment 1 HULME J: On 29 October 2002 this Applicant for leave to appeal where before the Local Court at Bathurst entered a plea of guilty to a charge that, on 4 June 2002 he robbed Jennifer Stanmore of some $2,941 whilst being then armed with a dangerous weapon, i.e. a shortened shotgun. 2 For this offence, on 18 December 2002 Judge Shillington sentenced the Applicant to imprisonment for 8 years, including a non-parole period of 6 years, both periods dating from the time the Applicant went into custody, viz 27 June 2002. His Honour regarded the Applicant as having entered his plea at the earliest opportunity and said that the Applicant was "entitled to a full discount for that fact". His Honour declined to find special circumstances. 3 The circumstances of the offence were as follows. Miss Stanmore, a 45 year old woman was working as a cleaner at the Oxford Tavern at Bathurst. Just after 6.00am she heard a knock on the door and when she asked who was there received the answer "the police". She opened the door and was confronted by the Applicant holding a sawn off shotgun which he pointed at her. He said, "let me in. I want money or I will shoot you". He then swung the shotgun upwards and discharged a shot into the air. He then pushed Miss Stanmore and she fell onto her back. He made further threatening statements holding the shotgun towards her. 4 The Applicant then took items including cash from Miss Stanmore's handbag including a credit card and asked for the pin number. There was an ATM machine in the premises to which the Applicant unsuccessfully sought access. He discovered a safe and on a trolley which was found, wheeled the safe out of the building. Once he was outside, Miss Stanmore locked the door and contacted the police. 5 A search later that day at the Applicant's premises revealed some of the items which had been stolen. Sometime later the Applicant was arrested. 6 Miss Stanmore was badly affected by what happened. She has experienced severe levels of anxiety and moderate levels of depression and stress following the traumatic event. Her blood pressure has increased appreciably and the event has had a significant consequence on her financially. 7 Judge Shillington was asked to take into account three further offences committed by the Applicant on or about 5 June 2002. One was of possessing implements capable of being used to enter and drive a conveyance, one was of taking and driving a conveyance without the consent of its owner and one of disposing of property, viz. a whipper-snipper, two electric drills and one angle grinder, which the Applicant knew to be stolen. 8 The Applicant gave evidence and expressed remorse for what had happened. He attributed his involvement to the fact he had gone back on to drugs after the break up of a relationship. He was 37 at the time of sentence and single. He left school in year 9 and worked from age 15 to 19. His brother Warwick, the manager of the Bathurst Local Aboriginal Land Council also gave evidence. I shall say more about their evidence below. 9 The applicant has a lengthy record. He was born on 30 June 1965. His first recorded conviction was in October 1977 of being an unlicensed rider, driving an unregistered vehicle and driving in a manner dangerous. In 1979 he was convicted of illegal use of a conveyance. He was released on a 2 years good behaviour bond. Between then and 1991 he was sentenced on no less than 20 occasions. Some of the offences dealt with or taken into account were minor but the offences included 5 occasions of driving while unlicensed or disqualified, 3 of driving with an excess of alcohol in his blood, 2 or 3 of driving in a manner dangerous, 3 of assault, 12 of stealing or the like, and 2 of escape from lawful custody. Six of the offences I have characterised as stealing involved the stealing, or the taking and driving, of motor vehicles and the sentences imposed for these offences included a bond, and then imprisonment for commonly increasing periods until in September 1990 a sentence of a minimum term of 2 years and an additional term of 8 months was imposed. By August 1985, on 4 occasions he had had been released on recognisances, although one of these was in practical terms, short lived. A week later he received his first sentence of imprisonment – for stealing a motor vehicle and driving while disqualified. There have been numerous sentences of imprisonment since, the longest of which included a minimum term of 3 years from September 1990 for breaking entering and stealing. 10 Insofar as the antecedent report is any guide, the Applicant's offending then became less frequent. In 1995 he was sentenced to 200 hours community service for 5 offences involving drugs. His next convictions were in 1999 when he was sentenced to a minimum term of 9 months imprisonment from November 1999 for supplying in excess of an indictable quantity of prohibited drug. In May 2001 he was convicted of driving under the influence, in September 2001 of driving whilst disqualified and in May 2002 of possessing a prohibited drug and of equipment for administering a prohibited drug. He appealed from the sentence imposed for driving whilst disqualified but the appeal was dismissed. In consequence of his appeal the sentence of 3 months imprisonment commenced on 27 November 2001. Thus he was released from prison on 26 February 2002 a little over 3 months prior to the subject offence. 11 In support of the appeal, it was submitted that the sentence imposed was manifestly excessive and that his Honour erred in not finding special circumstances in light of the Applicant's aboriginality and his drug addiction. It was also submitted that Judge Shillington did not consider these matters. I would readily reject the last proposition. In his remarks on sentence, his Honour expressly said that he took into account the Applicant's aboriginality and referred to the Applicant's evidence that he attributed the offence to being back on drugs after the break up of a relationship. Given the extensive experience of Judge Shillington, it is inconceivable that his Honour did not consider the ramifications of these two matters. 12 In support of the claim that the sentence was excessive, reference was made to remarks this Court's decision in R v Henry (1999) 46 NSWLR 346 at 397-8 in which the Court indicated as a guideline that a sentence of four to five years would commonly be appropriate for an offence of armed robbery in the circumstances there described. Those circumstances are radically different from this hearing. 13 Firstly, the offence in this case is more serious and attracts a maximum punishment of twenty-five years imprisonment, whereas that considered in Henry attracted a maximum punishment of twenty years. Secondly, the sort of weapon envisage din Henry was not a loaded sawn-off shotgun. Thirdly, the situation envisaged in Henry was one of no or limited planning. 14 to the effect that addiction may be relevant in so far as it may throw light on issues of impulsivity or planning, the existence or non-existence of another reason that may have tended to aggravate an offence and the state of mind of the offender to exercise judgment. 15 The Applicant's offence has all the hallmarks of significant planning and pre-meditation. There is evidence the Appilcant had previously "cased" the premises where the robbery occurred. He chose a time, 6.30 in the morning, when there was no-one but the victim, a cleaner, around. He had possession of a sawn off shotgun which, one may infer, was consciously obtained either for this offence or at least criminal activities. At a very early stage of the incident he fired a shot into the air, one may infer as a deliberate course of action to put fear into the victim. 16 The stealing of a safe and the substantial amount of money in this case is also a factor which tends to distinguish this case from the example given in Henry. Furthermore, in Henry, the offender contemplated was one who had nothing or little by way of previous convictions. The Applicant's record, and whatever the reason may be for that record, is obviously appalling and this and the other matters to which I have referred, take him well outside the circumstances judged by the Court of Criminal appeal in Henry to be appropriate for a four to five year sentence. 17 Also in Henry the Court was not considering a situation where other offences had to be taken into account. Here there were three and when one has regard to the fact that one of these involved the illegal use of a motor vehicle, an offence the applicant has committed six times before and for which, on the last occasion, a sentence of two years and eight months was imposed, a substantial increase in the penalty otherwise appropriate for the robbery offence was required. 18 As I have said, the maximum penalty prescribed for the Applicant's offence is twenty-five years. Courts must discourage those who may be tempted to use loaded firearms to impose their will on others by imposing penalties which are both heavy and seen to be so. 19 The complaint that the sentence was manifestly excessive fails. 20 I turn then to the topic of special circumstances. In light of the other evidence there is nothing about the Applicant's drug addition which argues for a finding of special circumstances. 21 Reference was made to the remarks of Wood CJ at CL in R v Henry to the effect that addition may be relevant in so far as it may throw light on issues of impulsivity or planning the existence or non-existence of another reason that may have tended to aggravate an offence, and the state of mind of the offender to exercise judgment. Those remarks have not application here. 22 As I have indicated, this offence has all the hallmarks of planning and pre-meditation. Its reason was no doubt simply to obtain money, principally one suspects to sustain the Applicant's drug addition. The pre-meditation and planning clearly indicates the Applicant's state of mind was such as to be able to exercise judgment and rationality. Notwithstanding that, his judgment was one to prefer apparently to commit the offence and take himself off to somewhere where he might have obtained drugs. 23 Having regard to the Applicant's record, the main, if not the only relevance of his drug addiction in this case is to demonstrate that, within the permissible bounds, the protection of the community as a factor relevant to sentencing looms large. Furthermore, it is impossible to positively conclude that a period longer than the two years parole period which is involved in the sentence which was imposed, would be likely to benefit the Applicant's rehabilitation. By the time that non-parole period commences the Applicant will already have had plenty of opportunity to address his drug addiction. 24 It is worthwhile my mentioning this. Before the sentencing Judge, the Appilcant gave and called no evidence that he had been seriously interested in the past in addressing his drug addiction; no evidence that at any time relevant he had sought to do so; and a court is fairly entitled to be sceptical when at the time of sentence, or of appeal and without any evidence of prior interest in this regard, it is asked to extend a period when the community will again be at the mercy of a drug addict, upon the basis that they will be afforded an opportunity to address their addiction. 25 I should interpolate something here. I have on a number of occasions referred to the Applicant's prior record. He is not, of course, to be again punished for the offences which figure on that record but its significance is, firstly, to deprive him of the element of leniency commonly afforded to first offenders, or those who perhaps have only a very limited number of offences to their name and, secondly, to demonstrate that the offender is a recidivist and someone against whom the community needs protection, unless or until he himself sees the light of day and addresses his own problems. 26 The second ground upon which it was submitted that special circumstances should have been found was the applicant's aboriginality. It was submitted that it had been held in R v. Fernando (1992) 76 A Crim R 58 that when sentencing an aboriginal offender a Court needs to consider additional matters and, if they exist, to reflect their impact by significantly reducing the non-parole period. The factors said to be relevant include: "(i) the influence of factors such as the socio-economic circumstances of the offender, and the recognition of the existence of alcoholism and the absence of education and employment opportunities within aboriginal communities; and (ii) the impact of imprisonment on aboriginal offenders that may render it an unduly harsh punishment." 27 It was submitted that these criteria were met here. 28 However, as has been made clear in Ceissman (2001) 119 A Crim R 535 t 540, R v. Powell [2000] NSWCCA 108 and R v. Dennis [2003] NSWCCA 137 (though the latter two cases were two Judge benches), R v. Fernando is not an authority for the proposition that the principles of sentencing are different for those of aboriginal heritage. What R v. Fernando said in this regard was to draw attention to circumstances common, but not restricted, to aboriginal communities, including those relied on by the Applicant's counsel, and to emphasise that appropriate allowance must be made for those circumstances where they exist. 29 Although the Applicant and his brother (who, as I have said, was the manager of the Bathurst Local Aboriginal Land Council) gave evidence, they said nothing to suggest that the Applicant's problems arose from the circumstances to which R v. Fernando invited particular attention. The only matters that could possibly be regarded as indicative of hardship in the Applicant's upbringing were that he was one of thirteen children and his father died in a car accident when the Applicant was eighteen months old. The impact of these matters on the Applicant was not explored and, at least so far as can be judged from the transcript, they have not precluded the Applicant's brother from achieving both sense and responsibility. 30 Counsel for the Applicant submitted that from the fact of aboriginality alone and the two matters to which I have referred, the Court should infer that the Applicant's circumstances had been those of the sorts of hardship of which Fernando spoke. There is just no way in which a court would legitimately be entitled to draw this inference when those who were in a position to speak of the facts directly said nothing on the topic. 31 One may accept without difficulty that there are many aboriginals whose upbringing involves considerable and, indeed, often great hardship and difficulty but there are others who do not fall into this category and a court forced with making decisions based on evidence is simply not entitled to just infer from the fact of aboriginality the matters which are sought to be relied on here and which are referred to in Fernando. 32 Furthermore, although the Applicant was, according to his brother, a much loved person within the family, and a good worker, when he is "off the rails on the other its just a different kettle of fish." Mr Warwick Peckham, with refreshing honesty, acknowledged what I would have inferred from the Applicant's record that, in significant measure, he is where he is today because he hasn't taken the opportunity to do something about his addictions and, in his words, "You can take a horse (to water but) you can't make it drink" and that "If somebody's not ready to do something about themselves, well they're not going to do it and until such time as they're ready to do that ... you leave it until their time." 33 Until the applicant shows that he is serious about dealing with his addictions, there is no reason why the Court should think that additional time on parole is likely to be of assistance to him. 34 It is appropriate to recognise, as I think I have done, that the Applicant's record from the early 1990s until the bout of offending of which Judge Shillington had to deal, is significantly different and in some respects, that is, the offences of dishonesty, much better than it had been theretofore. It is, however, not completely offence-free and the number of occasions when alcohol or, perhaps more importantly, illegal drugs featured on the record must be a matter of concern. 35 One cannot sit in this Court and be blind to the fact that most addictions to illegal drugs, indeed, almost all, can only be supported by crime. However, the record perhaps gives some indication that the applicant may be able to do something about his addictions. There will be facilities in prison which can help in this regard and as has been indicated, the time necessarily involved in the non-parole and parole parts of his sentence will be sufficient if he is appropriately motivated to assist greatly in that regard. 36 I have previously indicated that I did not regard the sentence as manifestly excessive, nor do I see any error in his Honour's failure to find special circumstances. 37 Because of the magnitude of the penalty imposed on the Applicant, I would grant leave to appeal but the appeal I would dismiss. 38 GREG JAMES J: I agree. For myself I would add that this court sits not as a court of general discretion to review sentences, the finding of special circumstances or the imposition of non-parole periods but as a court of limited jurisdiction. It only has power to intervene in the event it is of the view that, notwithstanding it is the trial judge in whom the discretion to sentence is vested, on the evidence or upon the trial judge's findings some other sentence is warranted in law and should have been imposed. Where, as here, the sentences are within the range of sentences that might reasonably have been imposed on the evidence before the trial judge and having regard to the findings, this court has no power to intervene. It is entirely inappropriate to ask the court to infer or speculate as to matters which were not found by the trial judge and were not in evidence at the time to assert some other sentence should have been passed. 39 I agree with the orders proposed by the presiding judge. 40 HULME J: The orders of the Court are as I have foreshadowed. ********** Last Modified: 10/21/2003 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.