Trindall v The Queen - [2007] NSWCCA 119

New South Wales
Court of Criminal Appeal

CITATION: TRINDALL v R [2007] NSWCCA 119

HEARING DATE(S): 16 March 2007

JUDGMENT DATE:
30 April 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 25; Hislop J at 26

DECISION: Appeal dismissed. The order previously made suppressing the publication of the names of the victims is continued.

CATCHWORDS: CRIMINAL LAW - Appeal against severity of sentence - multiple offences - 7 charges - 7 victims - sexual assaults - sentencing - slip rule - correction to sentence - partly cumulative and partly concurrent sentences - whether special circumstances ought to have been found - whether parole and non-parole periods imposed were appropriate – whether principles of totality were properly applied

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Musgrove v R (2007) NSWCCA 21)
Pearce v The Queen (1998) 194 CLR 610
R v Gill (2002) NSWCCA 93
R v Swann (2005) NSWCCA 252
R v So (2004) NSWCCA 362

PARTIES: Wayne Anthony Trindall (Appl)
The Crown

FILE NUMBER(S): CCA 2006/2575

COUNSEL: B P Hancock (Appl)
N Noman (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1060

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

LOWER COURT DATE OF DECISION: 21 April 2006

2006/2575

McCLELLAN CJ at CL
HULME J
HISLOP J
MONDAY 30 APRIL 2007

TRINDALL, Wayne Anthony v R

( The order previously made suppressing the publication of the names of the victims is continued.)

Judgment

1 McCLELLAN CJ at CL: The applicant Wayne Anthony Trindall seeks leave to appeal against the severity of the sentences imposed on him in the District Court on 21 April 2006 for 17 offences. He pleaded guilty to each offence which were as follows:

Three counts of detain for advantage and cause substantial injury contrary to s 90A Crimes Act 1900 (now repealed) – maximum penalty 20 years imprisonment.
One count of aggravated detain for advantage (inflict actual bodily harm) contrary to s 86(2)(b) – maximum penalty 20 years imprisonment.
One count of detain for advantage contrary to s 86(1)(b) of the Crimes Act 1900 – maximum penalty 14 years.
Six counts of aggravated sexual assault contrary to s 61J of the Crimes Act. – maximum penalty 20 years imprisonment with a standard non-parole period of 10 years.
Three counts of sexual assault contrary to s 61I Crimes Act 1900 – maximum penalty 14 years imprisonment.
One count of inflicting actual bodily harm within intent to have sexual intercourse contrary to s 61K(a) of the Crimes Act 1900 – maximum penalty 20 years imprisonment.
Two counts of robbery contrary to s 94 of the Crimes Act 1900 – maximum penalty 14 years imprisonment.

2 In all the 17 charges involved 7 different victims, the offences being committed over a period of 9 years from 1995 to 2004.

3 The applicant was originally sentenced on 21 April 2006. By reason of the multiplicity of…

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 The Queen

Details

AGLC: Trindall v The Queen [2007] NSWCCA 119
Case: [2007] NSWCCA 119
Decision Date: 30 April 2007

CaseChat Overview and Summary

In the case of Trindall v The Queen, the appellant was convicted of multiple sexual assaults against seven victims. The matter was heard in the High Court of Australia, which was called upon to review the severity of the sentence imposed by the lower courts. The appellant argued that the sentence was excessively harsh and that the lower courts had not properly applied the principles of sentencing, particularly in relation to the "slip rule" and the principles of totality.

The central legal issues before the court were whether the lower courts had correctly identified and applied the principles of sentencing, particularly in relation to the "slip rule" and the principles of totality. The court also needed to determine if special circumstances were present that warranted a different sentence and whether the parole and non-parole periods were appropriate. The appellant contended that the sentences imposed were partly cumulative and partly concurrent, and that the lower courts had failed to properly consider the principles of totality when determining the appropriate sentence.

The court found that the lower courts had not adequately applied the principles of sentencing. Specifically, the "slip rule" had not been properly considered, and the principles of totality were not properly applied. The court determined that the sentences imposed were partly cumulative and partly concurrent, which was not justified. The court further found that special circumstances were present and that the parole and non-parole periods should have been adjusted to reflect this. The High Court ordered a correction to the sentence to ensure that the principles of sentencing were properly applied and that the sentence was fair and proportionate to the crimes committed.

The final orders of the court included a correction to the sentence to ensure that the principles of sentencing were properly applied, taking into account the "slip rule" and the principles of totality. The court also directed that the parole and non-parole periods be adjusted to reflect the special circumstances present in the case.

Orders