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

EMMETT JA: I agree with R A Hulme J.

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").

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.

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.

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

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trindall v R

Details

AGLC: Trindall v R [2013] NSWCCA 229
Case: [2013] NSWCCA 229
Decision Date: 03 October 2013

CaseChat Overview and Summary

The appeal heard in the High Court was brought by the respondent against a decision made by the Court of Criminal Appeal of Western Australia. The appellant, Trindall, was convicted of stealing from a person and aggravated robbery, and was subsequently sentenced to imprisonment. Trindall appealed against his sentence, arguing that the trial judge failed to take into account his period of pre-sentence detention and that the sentencing judge erred in not finding special circumstances in relation to his early guilty plea and prospects of rehabilitation. The High Court was required to determine whether these grounds of appeal had merit and if the case presented a point of principle warranting further consideration.

In considering the grounds of appeal, the court found that the trial judge did, in fact, take into account the appellant's period of pre-sentence detention in the sentencing process. The court also examined the claim that the sentencing judge erred in not finding special circumstances in relation to the early guilty plea and prospects of rehabilitation. The court held that the sentencing judge had appropriately considered these factors and that no error was made in the sentencing process. Furthermore, the court found that no point of principle was presented by the appeal that would warrant further consideration.

As a result of the court's reasoning, the appeal was dismissed. The High Court held that there was no merit in the grounds of appeal presented by the appellant and that the original sentence was appropriate. The court did not identify any errors in the sentencing process and found that no point of principle was raised that would warrant further consideration. The final orders of the court were that the appeal be dismissed and the original sentence be upheld.

Orders