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Court of Criminal Appeal 13 August 2001

R v Penman [2001] NSWCCA 308 revised - 13

[2001] NSWCCA 308

Theft & property
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE ONE COUNT OF LARCENY WHETHER SENTENCE MANIFESTLY EXCESSIVE GENERAL AND SPECIFIC DETERRENCE

Citation: R v Penman [2001] NSWCCA 308
Court: NSW Court of Criminal Appeal
Date: 13 August 2001
Judges: Wood CJ at CL, Sperling J

Background

The appellant, a young man aged 18 at the time of the offences, pleaded guilty to one count of larceny and one count of taking a conveyance without the owner's consent. The offences arose from an incident on 1 September 1999 in which he and three others drove away a truck they found parked with keys in the ignition, selling some of the furniture it contained before abandoning the vehicle. He initially gave a false account to police but subsequently requested a re-interview, admitted his involvement, and identified co-offenders.

The District Court sentenced the appellant to 16 months imprisonment with a 12-month non-parole period on each count, to be served concurrently from 20 November 2000. A complicating factor was that the sentencing judge's reasons had been lost due to a missing court recording, leaving the Court of Criminal Appeal to re-examine the matter on the available materials and the judge's imperfect recollection.

The appellant challenged the sentence on two grounds: that it was manifestly excessive, and that the sentencing judge erred in failing to find special circumstances justifying a departure from the standard ratio between the head sentence and non-parole period.

  • Whether the overall sentence of 16 months with a 12-month non-parole period was manifestly excessive in the circumstances
  • Whether special circumstances existed that justified departing from the statutory 75 percent ratio between the non-parole period and the head sentence, as required under s 44(2) of the Crime (Sentencing Procedure) Act 1999

Decision

On the first ground, the Court rejected the argument that the sentence was manifestly excessive. Although the offences were spontaneous and the truck was not taken with intent to permanently deprive the owner, both offences were serious. The early guilty plea, voluntary assistance to police, and contrition justified a discount of around 20 percent, but the appellant's criminal record, including offences as a juvenile and a further larceny conviction as an adult, weighed heavily against him. Critically, the offences were committed while he was still subject to recognisances arising from earlier juvenile matters. The Court described that as a circumstance of considerable aggravation warranting a custodial sentence of some severity. The sentence was held to be well within range.

On the second ground, the Court found that special circumstances did exist and that the sentencing judge had erred in not finding them. Three factors combined to constitute special circumstances: the appellant's young age and the significance of a first meaningful period of custody; evidence from his parents that he had turned his life around, returned home, and resumed employment; and a pre-sentence report that, while guarded, offered some support for a favourable rehabilitation outlook.

The Court also took into account additional material presented on appeal showing that the appellant had performed well in a responsible prison role and had suffered multiple hypoglycaemic episodes requiring hospitalisation due to his insulin-dependent diabetes, a condition poorly managed within the prison environment. These matters reinforced the view that an extended period of supervised parole would serve both the appellant's rehabilitation and the community's interest. The non-parole period was reduced to nine months.

Orders Made

  • Leave to appeal granted
  • Non-parole period quashed
  • Non-parole period of 9 months imposed, dating from 20 November 2000 and expiring 19 August 2001
  • Appellant to be released on parole on 20 August 2001, subject to conditions as the Parole Board may specify

Key Takeaways

  • Committing offences while subject to a recognisance is a circumstance of considerable aggravation that calls for a custodial sentence of some severity, even where the offender is young.
  • A young offender's age does not automatically operate as a barrier to an otherwise appropriate sentence where a history of continuing disobedience to the law is present up to the time of sentencing.
  • Special circumstances justifying departure from the standard non-parole ratio under s 44(2) of the Crime (Sentencing Procedure) Act 1999 can be established by a combination of factors including first significant imprisonment, evidence of genuine rehabilitation, and the need for extended post-release supervision.
  • Where sentencing remarks are unavailable due to a lost court recording, the Court of Criminal Appeal is entitled to re-examine the sentencing exercise on the available materials, including any recollection provided by the sentencing judge.
  • In dismissing the manifestly excessive ground while upholding the special circumstances ground, the Court demonstrated that these two grounds operate independently and can produce a partial success on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 117 (larceny), 154A (take conveyance without consent)
- Crime (Sentencing Procedure) Act 1999 (NSW), s 44(2) (standard non-parole period ratio)

Cases:
- Richards (1981) 2 NSWLR 464
- Daridis, NSW CCA, 18 December 1986
- Tran (1999) NSWCCA 109