Trindall v R

[2013] NSWCCA 229

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Trindall v R [2013] NSWCCA 229
Hearing dates:	3 October 2013
Decision date:	03 October 2013
Before:	Emmett JA at [1] R A Hulme J at [2] Bellew J at [22]
Decision:	Leave to appeal refused
Catchwords:	CRIMINAL LAW - sentence appeal - stealing from person and aggravated robbery - whether pre-sentence detention taken into account - whether error in not finding special circumstances in early guilty plea and prospects of rehabilitation - no merit in either ground - no point of principle
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	R v Fidow [2004] NSWCCA 172
Category:	Principal judgment
Parties:	Darren John Trindall Regina
Representation:	Counsel: Ms S Kluss (Applicant) Ms N Adams SC (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions
File Number(s):	2011/109236 2011/167563
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2012-09-25 00:00:00 Before: Madgwick ADCJ File Number(s): 2011/109236; 2011/167573

Judgment

1. EMMETT JA: I agree with R A Hulme J.

1. R A HULME J: Darren John Trindall ("the applicant") was sentenced in the District Court on 25 September 2012 by his Honour Acting Judge Madgwick ("the judge").

1. In respect of three offences of stealing from the person and one offence of aggravated robbery (ss 94 and 95 of the Crimes Act 1900 (NSW)) the judge imposed an aggregate sentence of imprisonment for 6 years with a non-parole period of 4 years.

1. The sentence was specified to date from 23 July 2012. The applicant will be eligible for release on parole on the expiration of the non-parole period on 22 July 2016.

1. The judge also sentenced the applicant in respect of a number of related summary offences (s 166 of the Criminal Procedure Act 1986 (NSW)). They were offences of taking and driving a conveyance without the owner's consent; not stopping and driving recklessly when police were in pursuit; driving whilst disqualified; resisting police in the execution of their duty; and failing to submit to a breath analysis. The judge imposed another aggregate sentence for these offences of 18 months. He applied the same commencement date and so the applicant had the benefit of the sentence being wholly subsumed within the other sentence. There is no need to refer to these offences, or the sentence, again. What follows should be read as relating to the primary sentence.

Proposed grounds of appeal

1. The applicant seeks leave to appeal against the severity of the sentence on grounds that assert that the judge erred in failing adequately to take into account pre-sentence custody and in failing to consider whether there were special circumstances in the applicant's prospects of rehabilitation and his early pleas of guilty when setting the term of the non-parole period.

The offences

1. All of the offences occurred in the period 30 March to 4 April 2011 and culminated with the applicant's arrest. He has remained in custody since. The offences of stealing from the person and aggravated robbery involved the theft of handbags from women. The incident giving rise to the robbery was particularly serious in that the victim fell and was injured and there was evidence of significant and enduring physical and mental trauma.

Personal circumstances of the applicant

1. A difficulty for the applicant on sentence was his criminal history. He was aged 42 at the time of the offences. He has a very lengthy record of offending going back to 1982. He has committed a variety of offences but mainly ones involving dishonesty, including stealing, break, enter and steal, possessing housebreaking implements and armed robbery. He had been released on parole in respect of a sentence for armed robbery some five months before the offending in question. He had served a four year non-parole period and was in the course of serving a two year parole period.

1. The applicant did not give evidence but a psychological report was tendered which set out his life history and the various difficulties he had encountered. He is of Aboriginal heritage. His father passed away when he was very young and his mother thereafter had a number of partners who were abusive and violent. The applicant was assessed as possessing a reasonable level of intelligence but he has had a long-standing problem with substance abuse, primarily an addiction to heroin.

1. A significant issue in the sentence proceedings related to the applicant's rehabilitation prospects. It is clear, as the psychologist pointed out, that he requires substantial assistance in overcoming his substance abuse issues as well as with life management skills and vocational training. He has spent so much of his teenage and adult life involved with drugs and in gaol that he has little employment history. On the positive side he does have a supportive partner and mother, although the latter has succumbed to dementia.

1. Another significant issue in the sentence proceedings was the fact that the applicant was serving the balance of the parole period from his previous sentence until 3 December 2012. The State Parole Authority revoked his parole on 25 March 2011 because of a failure to comply with a reporting condition. The applicant's solicitor successfully persuaded the judge to backdate the sentences to be imposed to the date that the pleas of guilty were entered, namely 23 July 2012.

Ground 1 - error relating to pre-sentence custody

1. The applicant's argument in relation to the ground asserting that pre-sentence custody was not adequately taken into account amounts to this. At one point of the sentence proceedings the judge was told, erroneously, that the applicant got out of gaol in October 2011 (rather than 2010). It was contended that this led his Honour to think that the re-arrest 5 months later was in April 2012 (rather than April 2011). Backdating the sentence to July 2012 must have involved the judge considering that a period of accumulation of about 3 months was appropriate. But, in fact, the period of accumulation on the period of balance of parole was in the order of 15 months. So, the judge was inadvertently misled and this did not enable him to properly exercise his discretion as to when to specify the commencement of the sentences.

1. There is no merit in this argument. It is clear that the judge was aware of the correct position because he specifically mentioned in his sentencing remarks that the applicant had been released from gaol in October 2010 and that the offences were committed between 30 March and 4 April 2011.

1. Moreover, there can hardly be complaint about the judge backdating the sentence to 23 July 2012 because that was the date suggested by the applicant's solicitor. And the judge was clearly aware that this involved a period of accumulation of the order of 15 months because he said as much during the course of submissions.

Ground 2 - error in relation to special circumstances

1. The applicant's argument in relation to the other ground is that there was material that would support a finding of special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for reducing the proportion of the sentence represented by the non-parole period. The matters relied upon were the applicant's prospects of rehabilitation and his early pleas of guilty.

1. Both of these matters were taken into account by the judge. His sentencing remarks were succinct but a significant proportion of them were devoted to matters relevant to rehabilitation. He indicated that he had been persuaded that his initial view that "there is absolutely no realistic hope of his rehabilitation" was too harsh. He made recommendations that the applicant be considered for inclusion in drug rehabilitation and vocational training programs whilst in custody.

1. The pleas of guilty were not particularly early; they were entered in the District Court after committal for trial. But the judge recognised their utilitarian value by allowing a quantified reduction of sentence. It would have been double counting to take them into account again by reducing the non-parole period: R v Fidow [2004] NSWCCA 172 at [18] per Spigelman CJ.

1. The judge did make a finding of special circumstances, one can infer, on the basis that the sentence was to be partially accumulated upon a portion of the balance of parole the applicant was serving. He indicated that he was minded to do this during an exchange with the applicant's solicitor. The actual sentence imposed involved a non-parole component (4 years) that was two-thirds of the head sentence (6 years). But when regard is had to the partial accumulation, it can be seen that the total effective custodial imposition to which the applicant is presently subject is in the order of 7 years 3 months with 5 years 3 months to be served before parole eligibility. The minimum custodial component is about 73 per cent of the total term. That is consistent with what the judge said that he intended in the course of the submissions by the applicant's solicitor on the question of finding special circumstances because of accumulation: "I can't see in principle anything wrong with the 75% ratio in his case".

Conclusion

1. The approach to the sentencing exercise in both respects with which the proposed grounds are concerned was well open to in the proper exercise of the judge's discretion.

1. The two proposed grounds of appeal are devoid of any merit.

1. Leave to appeal should be refused.

1. BELLEW J: I agree with R A Hulme J.

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Decision last updated: 09 October 2013