R v Honeyman

[2003] NSWCCA 292

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

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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.

Ground 1

17 In support of the first ground of appeal the Court was taken to statements in the authorities – R v Thomson & Houlten [2000] 49 NSWLR 383 at [160] and R v Lloyd [2003] NSWCCA 46 at [20] - to the effect that failure by a sentencing judge to explicitly state that a plea of guilty has been taken into account will generally be taken to indicate that it was not and that it was desirable that a judge quantify what has seemed to be the utilitarian value of a plea and if a discount in the usual range was not to be given, reasons should be stated.

18 Shillington DCJ is a very experienced Judge in this area. In light of his remark that the Applicant “must receive full credit for (his plea at the earliest possible opportunity)” it is impossible to reasonably infer that His Honour did not grant the Applicant some discount for his plea.

19 A second criticism make under this ground of appeal was that his Honour’s reference in the same paragraph to the Applicant’s fingerprints being found on the premises is an indication that he had regarded the strength of the Crown case as relevant to the utilitarian value of the plea. Such an approach is contrary to what had been said in R v Thomson & Houlten (supra) at [137].

20 It tends to be forgotten that in R v Thomson & Houlten at [154] the Court also said:-

“The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.”

21 Thus reference to some aspect of a Crown case which tends to indicate easy proof and thus less rather than more complexity in a trial avoided by reason of a plea of guilty is not necessarily inappropriate. That said, I confess that looking at the context in which His Honour made reference to the Applicant’s fingerprints being found does suggest that His Honour may have taken their presence into account on an impermissible basis. However, whether in the circumstances of the case His Honour erred in failing to “properly discount” the Applicant’s sentence for the utilitarian value of his plea has to be judged by looking at the sentence ultimately imposed.

Ground 2

22 It was submitted that the Applicant’s pre-sentence custody was relevant to both the total term and the non-parole period and that while His Honour took the 3 months into account in respect of the head sentence he did not demonstrate that he had done so in relation to the non-parole period. It was pointed out that his Honour did not adopt the commonly used way of effecting this by back dating the commencing date of the sentence nor did he indicate that the non-parole period reflected the pre-sentence custody.

23 In this regard it may be observed that Sections 24 and 47 (3) of the Crimes (Sentencing Procedure) Act require that the Court take into account pre-sentence custody. Reference was made to the decision of this Court in R v Howard [2001] NSWCCA 309 where the Court held that two periods of pre-sentence custody not having been demonstrably reflected in the sentencing order, error was shown and although otherwise the sentence was appropriate, the Court should intervene to adjust it accordingly.

24 In R v Phillips & Simpson [2002] NSWCCA 167 (also an appeal from Judge Shillington) this Court took a similar view, expressly endorsing earlier remarks in R v McHugh (1985) 1 NSWLR 588 at 590-599 that:-

“It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which the sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be backdated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (and non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order.”

25 As the Court pointed out in R v Phillips & Simpson such a course tends to dispel doubts which arise from the imposition of a sentence in round figures.

26 Of course, it commonly happens that if a period of pre-sentence custody is taken into account in the determination of the full term, the non-parole period will reflect that fact and be less by a proportion of that period. Most obviously is that so when the non-parole period is determined as a percentage of the full term. However, insofar as in these circumstances, full credit is not allowed for pre-sentence custody, one would expect a sentencing judge to indicate his reasons for that result.

27 In this case there are further factors which arise. One consists of the two 4 month sentences commencing on 19 June 2002 which were imposed on 2 September 2002. In the face of those, it cannot be said that the Applicant’s custody from 19 June 2002 to 19 September 2002 was exclusively referable to the offence for which he was sentenced by Judge Shillington. Of course, much of that period pre-dated the imposition of the sentence on 2 September and in that situation one is required to consider whether the fact that the Applicant was in custody caused, or possibly may have contributed to, the sentence which was imposed. Having regard to the Applicant’s record, it is unlikely that it did so.

28 Indeed that record is such that, unless and until the Applicant overcomes and can be seen to have overcome, his drug addiction, it is virtually inconceivable that the Applicant would not be imprisoned for every offence of dishonesty or otherwise involving significant criminality which he commits. He is a recidivist and whether this be due to the demands of his drug addiction or not, he falls squarely within the situation envisaged by the High Court in Veen v R (No. 2) (1987-1988) 164 CLR 465 at 477:-

“The antecedent criminal history is relevant, however, to show… the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”

29 As the High Court recognised (at p 473) there are limits of course to the extent to which the protection of society can be an operative factor but the demands of society for protection provide a compelling answer to any claim whatsoever which the Applicant might have for any leniency.

30 The second factor lies in a comparison of the Applicant’s circumstances, objective and subjective, with the maximum penalty prescribed for the Applicant’s offence being 20 years imprisonment. I do not suggest that he merited a punishment at the top of the scale but the law places considerable weight on the principle that people are entitled to both be and feel safe in and enjoy the sanctity of their home. A fortiori does the entitlement extend to those who have no hope of defending themselves.

31 The Applicant was extremely fortunate in my view that his Honour adopted as a starting point, after whatever discount he allowed for the Applicant’s plea, a period of 5 years. But accepting that, and its reduction to 4 years and 9 months for the pre-sentence custody, the non-parole period in the absence of special circumstances would have been marginally over 3½ years. For his Honour to have reduced this to 2 years was extraordinarily lenient, particularly when there was nothing to suggest the Applicant had done anything to seriously address his drug addiction except under the threat of a prison sentence.

32 S6 of the Criminal Appeal Act requires the Court to dismiss an appeal unless it is of the view that some other sentence should have been passed. I am satisfied that no sentence more lenient to the Applicant should have been. I propose that the Court grant leave to appeal but dismiss the appeal.

33 GREG JAMES J: I agree. I too am not persuaded that some other sentence warranted in law should have been passed. I agree with the orders proposed by the presiding Judge and his reasons therefor.

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Last Modified: 10/21/2003