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Court of Criminal Appeal 14 December 2005

REGINA v. TRINDALL

[2005] NSWCCA 446

Assault & violenceTheft & property

Citation: Regina v Trindall [2005] NSWCCA 446
Court: New South Wales Court of Criminal Appeal
Date: 14 December 2005
Judge(s): Hall J (with Hodgson JA and McClellan CJ at CL agreeing)

Background

The applicant, an Aboriginal woman, pleaded guilty in the District Court at Campbelltown to two counts of steal from the person (under s 94 of the Crimes Act 1900) and one count of common assault (under s 61). The offences occurred at a railway station in June 2003, where the applicant approached two women waiting for trains, feigned distress to get close to them, and stole cash from their wallets. During the second incident, she grabbed the victim by the ponytail and struck her head against the concrete.

The sentencing proceedings were protracted. The applicant failed to appear on multiple occasions, was admitted to psychiatric care, and was ultimately sentenced by Maguire DCJ in March 2005 after a period in custody. She received four-year sentences (with a two-year non-parole period) on each steal from person charge, and a two-year fixed term for the assault, all commencing from March 2004.

The applicant sought leave to appeal against those sentences, raising several grounds including that insufficient credit was given for her early guilty plea and that the sentencing judge failed to have regard to the lower maximum penalties available in the Local Court for the relevant offences.

  • Whether the sentencing judge gave adequate discount for the applicant's early guilty plea
  • Whether the sentencing judge erred in failing to consider the maximum penalties applicable had the matter been dealt with in the Local Court
  • Whether other grounds (including failure to discount for pregnancy) warranted intervention

Decision

The Court of Criminal Appeal granted leave to appeal and upheld the appeal on the basis of Ground 1: the sentencing judge had not given adequate credit for the utilitarian value of the applicant's early guilty plea. Hall J assessed the appropriate discount at 25 per cent, to be reflected in both the head sentence and the non-parole period.

On the Local Court maximum penalty issue, the Court acknowledged that the charges under ss 94 and 61 could have been dealt with summarily, and that the applicant was only committed to the District Court because the Crown had originally intended to proceed on the more serious s 95 charge. Under that summary pathway, each s 94 offence would have carried a maximum of 12 months' imprisonment. Hall J confirmed that the available summary penalty is a relevant consideration for a sentencing judge, and that Maguire DCJ erred in not turning his mind to it. However, the Court found that error was not, in the circumstances of this case, sufficient on its own to warrant intervention, given the applicant's criminal history, the fact the offences were committed on parole, and the overall level of sentence imposed.

Ground 2 (failure to discount for pregnancy) was abandoned by the applicant at the hearing. The remaining grounds were not pressed as independently determinative. The intervention of the Court rested on the inadequate plea discount alone.

Orders Made

  • Leave to appeal granted
  • Appeal upheld; original sentences set aside
  • For the two steal from the person offences (s 94): non-parole period of 18 months commencing 7 March 2004, expiring 6 September 2005; balance of term of 18 months expiring 6 March 2007
  • For common assault (s 61): fixed term of 18 months commencing 7 March 2004, expiring 6 September 2005
  • The applicant to be forthwith considered for release on parole

Key Takeaways

  • A 25 per cent discount for the utilitarian value of an early guilty plea was applied to both the head sentence and the non-parole period, reflecting the Court's assessment that the original sentence had inadequately recognised that utilitarian value.
  • Where charges could have been dealt with summarily in the Local Court, the lower maximum penalties available in that jurisdiction are a relevant sentencing consideration, and a failure to address them at all constitutes an error; however, the error will not necessarily lead to appellate intervention if the overall sentence remains within an appropriate range given the offender's circumstances.
  • The reason an accused came to be sentenced in a higher court is a relevant contextual factor: here, the Crown had sought to prosecute a more serious charge, and the accused ended up in the District Court only because of that election, not because the charges to which she pleaded guilty inherently required it.
  • Aggravating circumstances, including committing offences while on parole and a serious criminal history, remained significant counterweights in the Court's overall assessment, limiting the scope of appellate intervention on certain grounds.
  • Upholding an appeal on one sentencing error does not require the appellate court to find that every challenged ground is made out; the Court may decline to intervene on some errors while still re-sentencing on the basis of a distinct, established error.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912, s 5(3)
- Crimes Act 1900 (NSW), ss 61, 94, 95, 496
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11

Cases
- Thomson & Houlton (2000) 49 NSWLR 333
- Fernando (1992) 76 A Crim R 58
- Vincent (aka Harris) [2005] NSWCCA 135
- Walter & Thompson [2004] NSWCCA 304
- Newman & Simpson (2004) 145 A Crim R 361
- Regina v Khaled Elomar [2000] NSWCCA 431