R v HONEYMAN [2003] NSWCCA 292

New South Wales Court of Criminal Appeal

CITATION : R v HONEYMAN [2003] NSWCCA 292 HEARING DATE(S) : 1 October 2003 JUDGMENT DATE : 1 October 2003

JUDGMENT OF : Hulme J at 1; Greg James J at 33 DECISION : Leave to appeal granted; Appeal dismissed

PARTIES : Regina Scott Kenneth HONEYMAN FILE NUMBER(S) : CCA 60220/03 COUNSEL : Crown: P Ingram Appellant: H Dhanji SOLICITORS : Crown: CK Smith Appellant: B Sandland

LOWER COURT District Court JURISDICTION : LOWER COURT 02/61/0158 FILE NUMBER(S) : LOWER COURT Shillington DCJ JUDICIAL OFFICER :

- 8 - IN THE COURT OF CRIMINAL APPEAL 60220/03

HULME J GREG JAMES J

Wednesday 1 October 2003 R v SCOTT KENNETH HONEYMAN Judgment 1 HULME J: This Applicant for leave to appeal was sentenced by Judge Shillington on 17 December 2002 to imprisonment for a term of 4 years and 9 months including a non-parole period of 2 years, both periods dating from 28 October 2002. His Honour found special circumstances in the Applicant's need for drug rehabilitation. 2 The offence in respect of which the sentence was imposed was, on 17 May 2002, breaking and entering a dwelling house of Elsie Sharpless in Orange and in the dwelling house committing a serious indictable offence that is stealing a bank passbook and cash in circumstances of aggravation. The circumstances of aggravation were that the Appplicant maliciously inflicted actual bodily harm upon Mrs Sharpless. 3 Mrs Sharpless was aged 98. She was awoken in the early hours of the morning. When she got out of bed, she saw the signs of someone apparently having been in the house and, returning to her bedroom, was unable to open the door which was being held shut at that time by the Applicant. Mrs Sharpless stood back, the Applicant opened the door slightly and then make a dash to get out in the process taking hold of Mrs Sharpless' passbook and cash which she had retrieved from elsewhere in the house, knocking her to the ground causing her some bruising and, one may infer, some psychological trauma. 4 Entry had been gained from the removal of a window at the rear of the house. 5 The Applicant was arrested on 19 June 2002 and interviewed. Initially he denied having ever been to the house and when told that fingerprints belonging to himself had been found there, maintained he could not tell the police anything about that and that there was no reason why his fingerprints would be found there. Later he said he had been called to the premises by an acquaintance, tripped over and in what he said raised the possibility that he might have touched the window when he fell. He said he saw his acquaintance trying to open the window but left before this occurred. 6 In a passage to which exception was taken in the course of the appeal, Judge Shillington remarked:- "It is to be noted of course, that the Prisoner has entered his plea at the earliest possible opportunity, before the Magistrate and he must receive full credit for that fact. But on the other hand, it is also clear that his fingerprints were found on the premises, at the site where the premises were entered and that is a matter which obviously is of significance." 7 His Honour also observed:- "I take into account the fact that he spent some 3 months in custody after his arrest on 19 June. He was released on Supreme Court bail on 19 September, he then went back into custody on 28 October, following his failure to be re-admitted to Lyndon House… He therefore must receive some benefit for that 3 months that he was in custody until 19 September; and The appropriate penalty in my view is one of 5 years imprisonment, that is to be reduced to a term of 4 years and 9 months by reason of the period in custody. I find special circumstances being his need for drug rehabilitation." 8 His Honour also observed that the Applicant, though only 20 has a relatively lengthy criminal record. Indeed it is appalling and merits further reference. 9 In 1995 the Applicant appeared in Court charged with common assault. No conviction was recorded but he was placed on a recognisance. In 1996 he was convicted of possession of cannabis seeds, two counts of breaking, entering and stealing, one of goods in custody and two of assault. 10 In 1997 he was dealt with by a Children's Court on three occasions, his offences including two charges of break, enter and steal, five of goods in custody, three other charges involving actual or attempted stealing and one of possession of a prohibited drug. 11 In 1998 and early 1999 this pattern of drug offences and offences of dishonesty continued. 12 In March 1999 the Applicant committed the offence of robbery in company for which and other offences taken into account, he was in March 2000 sentenced to imprisonment for a minimum term of 18 months commencing on 16 March 1999 with an additional term of a further 18 months. 13 In November 2000 he was convicted again of having goods in custody, reasonably suspected of having been stolen. In 2001 most of his offences seem to relate to the driving of motor vehicles. Included in these was his fifth offence of driving whilst unlicensed or disqualified. 14 On 13 June 2002 he was charged with carrying a cutting weapon upon his apprehension and with shoplifting and on 19 June of being in possession of goods suspected of having been stolen. In respect of the last two of these offences he was on 2 September 2002 sentenced to concurrent terms of imprisonment for 4 months commencing on 19 June 2002. 15 The Antecedents Report records that since this first occurred in November 1995 the Applicant has been placed on a recognisance or probation on no less than five occasions and in respect of fourteen offences. 16 There are two grounds of appeal:- 1. The sentencing judge erred in failing to properly discount the Applicant's sentence for the utilitarian value of his plea of guilty. 2. The learned sentencing judge erred in failing to demonstrably take into account the Applicant's pre-sentence custody from 19 June 2001 to 19 September 2001 in relation to the non-parole period.