Troy LITTLE v R - [2009] NSWCCA 113

New South Wales
Court of Criminal Appeal

CITATION: Troy LITTLE v R [2009] NSWCCA 113

HEARING DATE(S): 08/04/2009

JUDGMENT DATE:
21 April 2009

JUDGMENT OF: Grove J at 1; Howie J at 2; Buddin J at 24

DECISION: Application for leave is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Appeal against sentence - Evidence of psychologist rejected by sentencing judge - whether erroneous - whether brain injury mitigating or whether significance of general deterrence should have been reduced.

LEGISLATION CITED: Crimes Act 1900 - ss 86(1)(b), 111(2)

CATEGORY: Principal judgment

CASES CITED: R v Engert (1996) 84 A Crim R 67
R v Hemsley [2004] NSWCCA 228
R v Dagwell [2006] NSWCCA 98

PARTIES: Troy Little v Regina

FILE NUMBER(S): CCA 2008/00000953

COUNSEL: V Lydiard - Crown
F Coyne - Applicant

SOLICITORS: S Kavanagh - Crown
Burston Cole and Mulock - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/0953

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 14/08/2008

2008/953

GROVE J
HOWIE J
BUDDIN J
TUESDAY 21 APRIL 2009

Troy LITTLE v R

Judgment

1 GROVE J: I agree with Howie J.

2 HOWIE J: The applicant was sentenced in the District Court for three offences arising from an incident that occurred when he entered his former girlfriend’s premises and bound her hands for a short period. This conduct resulted in three offences to which the applicant pleaded guilty in the Local Court. The first offence was contrary to s 86(1)(b) of the Crimes Act, that is detaining a person for advantage. That offence carried a maximum penalty of imprisonment for 14 years. The second was an offence of assault contrary to s 61 of the Act and for which a maximum penalty prescribed is imprisonment for 2 years. The third offence was an aggravated enter dwelling house with intent to commit a serious indictable offence, the offence alleged being intimidation. That is an offence contrary to s 111(2) of the Crimes Act and carries a maximum penalty of 14 years.

3 The applicant maintained his pleas of guilty in the District Court and was sentenced by Judge English (the Judge) on 14 August 2008. For the assault offence the applicant was sentenced to a fixed term of imprisonment for 12 months from 14 August 2008 and to expire on 13 August 2009. In respect of each of the other two offences the applicant was sentenced to a term of imprisonment comprising a non-parole period of 12 months and a balance of term of 18 months. The sentences commenced on 14 August 2008 so that the applicant is to be released to parole on 13 August 2009.

4 There was an agreed statement of facts and it can be summarised briefly. The applicant and the complainant, who was aged 29, had been in a relationship for about 5 years but it had soured on her part and she had informed the respondent that she no longer wished to see…

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 Troy LITTLE v R

Details

AGLC: Troy Little v The Queen [2009] NSWCCA 113
Case: [2009] NSWCCA 113
Decision Date: 21 April 2009

CaseChat Overview and Summary

In the case of Little v R, the appellant, Troy Little, appealed against his sentence imposed by the Supreme Court of Queensland. Little was convicted of grievous bodily harm with intent and sentenced to a custodial term of eight years, with a non-parole period of five years. The case before the court involved the question of whether the sentencing judge erred by rejecting the evidence of a psychologist who testified that Little suffered from a brain injury, which should have been considered as a mitigating factor, and whether the significance of general deterrence should have been reduced. The appeal focused on the legal principles governing the consideration of mitigating factors and the role of general deterrence in sentencing.

The court was required to determine whether the sentencing judge's failure to consider the psychologist's evidence regarding Little's brain injury was an error. Additionally, the court needed to assess whether, in light of the brain injury, the importance of general deterrence should have been diminished. The appellant's legal team argued that the brain injury was a significant mitigating factor that warranted a reduced sentence, and that the judge's failure to consider this evidence constituted an error in the sentencing process. The prosecution, on the other hand, maintained that the sentence was appropriate and that the mitigating factor of the brain injury did not warrant a reduced sentence.

The court examined the sentencing principles outlined in the relevant statutes and case law. It found that the sentencing judge did not err in rejecting the psychologist's evidence, as the evidence was not sufficiently reliable or relevant to be considered as a mitigating factor. The court also concluded that, even if the brain injury had been accepted as a mitigating factor, the overall circumstances of the case warranted a strong general deterrent sentence. The court emphasised that the gravity of the offence and the need to protect the community outweighed any mitigating factors presented. Consequently, the appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the Supreme Court of Queensland was affirmed. The appellant's sentence of eight years imprisonment, with a non-parole period of five years, remained in place. The court's decision underscored the importance of reliable and relevant evidence in the sentencing process and the need to balance mitigating factors with the overarching principles of deterrence and community protection.

Orders